                                                                                         07/12/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs May 7, 2019

           STATE OF TENNESSEE v. WILLIE LEE WILSON, JR.

                 Appeal from the Circuit Court for Haywood County
                        No. 7686 Clayburn Peeples, Judge


                            No. W2018-01671-CCA-R3-CD


The defendant, Willie Lee Wilson, Jr., appeals his Haywood County Circuit Court jury
convictions of aggravated robbery, theft of property valued at $1,000 or less, and evading
arrest, arguing that the evidence adduced at trial was insufficient to sustain his
convictions. Because the evidence was insufficient to support the defendant’s conviction
for theft of property valued at $1,000 or less relevant to a handgun, that conviction is
vacated, and the charge is dismissed. The defendant’s other convictions are affirmed.

Tenn. R. App. P. 3; Judgments of the Circuit Court Affirmed in Part; and Vacated
                            and Dismissed in Part.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL, and D. KELLY THOMAS, JR., JJ., joined.

Bob C. Hooper, Knoxville, Tennessee, for appellant, Willie Lee Wilson, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Garry G. Brown, District Attorney General; and Jason Scott and
Christie Hopper, Assistant District Attorneys General, for the appellee, State of
Tennessee.

                                       OPINION

              The Haywood County Grand Jury charged the defendant with one count of
aggravated robbery of the Country Corner Market [“the Store”] at the Fast Fuel gas
station in Brownsville, one count of theft of property valued at $1,000 or less for cash
stolen from the Store, one count of theft of property valued at $1,000 or less for a stolen
Smith and Wesson handgun, and one count of evading arrest.

              At the April 17, 2018 trial, Teresa Grandberry testified that, on January 6,
2017, she stopped at the Store at approximately 11:15 a.m. on her way home from work
as was her daily routine. She recalled that it was cold that day and that there was snow
on the ground. After making her purchases, she returned to her vehicle, and, before
driving away, she saw a person wearing a ski mask and carrying a purse with an “M” on
it walking into the Store. When she saw that the person in the ski mask had a gun, she
drove away and called 9-1-1. While driving and while on the telephone with the 9-1-1
operator, she “looked in [her] mirror” and saw the same person “running down the
street,” which information she relayed to the 9-1-1 operator. After turning onto her
street, she saw police officers “running across the field behind the baseball field” near a
high school.

              During cross-examination, Ms. Grandberry described the purse that the
person was carrying as “tan color” with a gold “M” on it. She explained that she saw the
handle of a gun sticking out of the bag and described the gun handle as black and “kind
of wide.” She estimated that five to seven minutes elapsed between her seeing the man at
the Store and seeing him running down the street. In describing the man to the 9-1-1
operator, Ms. Grandberry said that he was wearing “[a]ll black” and carrying a purse.
She stated that she could not determine the man’s race because he had covered his hands
and face.

              Harsh Patel testified that he was the manager at the Store located at 680
North Dupree Street. He was not at the Store during the robbery but arrived
approximately 10 minutes later because his mother, who was working there, called him
about the robbery. He stated that the Store had operational surveillance video cameras
that covered activity where the registers were located. After the robbery, he made several
copies of the surveillance videos and gave one copy to the Brownsville Police
Department. The jury viewed footage of the robbery from two surveillance videos.

              On cross-examination, Mr. Patel described the robber on the surveillance
videos as wearing a dark jacket. He explained that the security cameras were not high
quality and that the colors depicted in the videos “can’t be taken at true value.” Although
he stated that he could not identify the actual color of the perpetrator’s jacket, he
acknowledged that it was a dark color. He explained that the discrepancy in the color of
the robber’s jacket between the two videos resulted from the videos’ having been taken
from two different cameras.

             Rajeshree Patel testified that she was working at the Store at the time of the
robbery. She stated that, at approximately 1:00 p.m., a man entered the Store, showed
her a gun, and said, “Give me money. Give me money.” She opened her cash drawer,
and the robber dumped the contents of the draw into a “big purse,” which she stated was
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a Michael Kors bag. He then demanded that she open a second drawer, which she did,
and she gave him the money from that drawer as well. Ms. Patel stated that she pushed a
panic button but did not otherwise call the police.

              Ms. Patel described the perpetrator as being tall and wearing long sleeves, a
mask, and gloves. She stated that, although she could see only his eyes and “his skin at
the top,” she could tell that he was a black man. She estimated that the robber took
approximately $420 in the robbery but noted that the Store had recovered the stolen
money.

               On cross-examination, Ms. Patel described the robber as being
approximately six feet or six feet and one inch tall and weighing approximately 170
pounds. She acknowledged that the defendant was not six feet and one inch tall. She
stated that the perpetrator took the Michael Kors purse with him when he left the Store.
According to Ms. Patel, the lighting inside the Store was “bright.” She acknowledged
telling the police on a previous occasion that the robber took approximately $300 from
the Store.

              Brownsville Police Department Officer Michael Clayborn testified that he
received a call of an armed robbery at the Store. He responded to the location where the
robber was reported to be running. He saw a man matching the robber’s description
running, and Officer Clayborn identified himself as police and ordered the man to stop.
When the man continued to run, Officer Clayborn began to chase him on foot. Because
the suspect “turned around . . . several times during the chase,” Officer Clayborn
suspected that “he possibly had a weapon or was intending to do something.” According
to Officer Clayborn, the chase lasted approximately two minutes and ended when the
suspect sat down against a fence in a backyard of a house. Officer Clayborn testified that
he saw the suspect throw a light tan leather purse over a fence. The suspect pulled off his
mask, at which time Officer Clayborn recognized him as the defendant. While the
defendant was being arrested, Officer Clayborn saw that the defendant had a gun, which
Officer Clayborn described as “a black handgun.” Officer Clayborn was wearing a body
camera at the time, but explained that it fell off while he was chasing the suspect.

               During cross-examination, Officer Clayborn testified that the robbery
suspect was described to him as “wearing all black” with “a gray hoodie type hood over
his head” and “wearing a mask.” He estimated that he chased the defendant for “about a
football field’s length” and stated that he never lost sight of the defendant during the
chase. He recalled that the defendant was wearing two pairs of gloves—a pair that was
“light gray or white color” covered by see-through blue gloves.


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            On redirect examination, Officer Clayborn explained that the suspect was
running toward a vehicle where other officers had found two men, Johnny Nixon and
Antonio Walker, with drugs and weapons.

              Brownsville Police Department Sergeant David Culver testified that he
responded to the armed robbery call and assisted Officer Clayborn in pursuing the
suspect. He joined in the foot chase and, after the suspect sat down on the ground, the
officers took him into custody. Sergeant Culver stated that when the suspect removed his
mask, he recognized him as the defendant. He collected a Smith and Wesson gun from
the defendant’s person and gave it to another officer to be collected as evidence. After
placing the defendant in a patrol car, he called for an ambulance because the defendant
was “having trouble breathing.” The jury viewed excerpts of footage taken from
Sergeant Culver’s body camera showing the defendant being placed in a police vehicle
and later being treated in an ambulance and Sergeant Culver removing the defendant’s
gloves. Sergeant Culver stated that the gloves he collected from the defendant were
standard surgical gloves.

              During cross-examination, Sergeant Culver testified that Brownsville
Police Department policy required officers to wear a body camera every day while at
work and explained that the camera had to be manually activated. He testified that he
was aware that two other gentlemen were detained and charged in connection with the
case, but he did not know any further details. He acknowledged that the gun used in the
robbery had no distinguishing marks. He also acknowledged that, while chasing the
defendant, he “lost sight of him for a moment.”

               Randy Taylor, who, at the time of the robbery, was employed as a Sergeant
Investigator with the Brownsville Police Department, testified that he responded to the
armed robbery. While en route to the Store’s location, he heard a report that a vehicle
was leaving from Penny Lane, and he recognized the vehicle’s description from prior
robberies. Upon learning this information, he ordered officers to detain the vehicle and to
detain Mr. Nixon and Mr. Walker, the occupants of that vehicle. He responded to that
vehicle’s location and observed “several bags of marijuana and a handgun in plain view.”
He testified that Mr. Nixon and Mr. Walker were arrested for drug possession and not in
connection to the robbery. The location where Mr. Nixon and Mr. Walker were arrested
was in front of the house where the defendant was arrested, and Sergeant Taylor saw the
defendant “sitting beside a fence in the backyard of the house.” Sergeant Taylor
investigated the trail from the scene of the robbery to the place of the defendant’s arrest.
He photographed numerous items found on the ground, including cash, a Michael Kors
purse, a ski mask, and a body camera. The jury viewed these photographs. The jury also
viewed a photograph of the defendant taken on the day of the robbery in which the
                                            -4-
defendant is wearing a white t-shirt, black jacket, gray hooded sweatshirt, and black
pants. Sergeant Taylor acknowledged that he “r[a]n the serial numbers of the firearms”
collected in this case and, based on that inquiry, charged the defendant “for being in
possession of a stolen weapon.”

               During cross-examination, Sergeant Taylor confirmed that the Smith and
Wesson handgun recovered from the defendant was a common gun, and its only
distinguishing feature was the serial number. He acknowledged that during his
investigation, he did not trace the trail all the way from where the defendant was arrested
to the Store; but rather, he backtracked only to the Haywood High School property. He
stated that he did not submit any evidence for DNA testing and did not ask the victim to
identify the defendant because he was wearing a mask during the robbery. Sergeant
Taylor explained that he did not wear a body camera during the incident because he was
an investigator. He acknowledged that the photograph of the defendant taken on the day
of the robbery showed “a small scratch over the left side of his lip” but stated that he did
not think the defendant received the scratch during the arrest. Sergeant Taylor described
Mr. Walker as “tall” but stated that he could not estimate his height. He acknowledged
that he never saw the defendant possessing the purse.

               The jury found the defendant guilty as charged and, after a sentencing
hearing, the trial court imposed an effective sentence of eight years’ incarceration.
During a hearing on the defendant’s motion for new trial, the court merged the theft
conviction stemming from the petitioner’s stealing cash from the Store with the
aggravated robbery conviction as a lesser-included offense, but it otherwise denied the
defendant’s motion. In this timely appeal, the defendant argues that the evidence at trial
is insufficient to support his convictions.

                                Sufficiency of the Evidence

               The defendant makes a general claim of insufficient evidence that does not
allege insufficiency as to any specific element but instead suggests that the State failed to
establish his identity as the person who committed the offenses. The State contends that
the evidence is sufficient to support the convictions.

              We review the 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, 324 (1979) (superseded on other grounds); State v. Winters, 137 S.W.3d 641, 654
(Tenn. Crim. App. 2003). This standard applies to findings of guilt based upon direct
                                             -5-
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
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.

              “The identity of the perpetrator is an essential element of any crime.” State
v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (citing State v. Thompson, 519 S.W.2d 789,
793 (Tenn. 1975)). Whether the State has established the defendant as the perpetrator of
the charged offenses beyond a reasonable doubt is “a question of fact for the jury upon its
consideration of all competent proof.” State v. Bell, 512 S.W.3d 167, 198 (Tenn. 2015)
(citing State v. Thomas, 158 S.W.3d 361 app. at 388 (Tenn. 2005)); accord State v.
Crawford, 635 S.W.2d 704, 705 (Tenn. Crim. App. 1982) (citing Stubbs v. State, 393
S.W.2d 150, 153 (Tenn. 1965)).

              Here, the proof adduced at trial established that the Store was robbed by a
person wearing a ski mask, a gray hooded sweatshirt, a dark colored jacket, and blue
gloves and carrying a handgun and a tan Michael Kors purse. Ms. Grandberry reported
seeing the robber running down the street, and the police responded to that location and
chased a man who matched the description of the robber. When Officer Clayborn and
Sergeant Culver arrested the defendant after a two-minute foot chase, he was wearing
clothing that matched the description of the perpetrator’s clothing described by Ms.
Grandberry and as shown in the Store surveillance videos, and he was in possession of a
Smith and Wesson handgun. Officer Clayborn saw the defendant throw a purse over a
fence, and officers recovered a Michael Kors purse with cash inside of it and on the
ground around it.

               From these facts, a rational trier of fact could have found beyond a
reasonable doubt that the defendant robbed the Store at gunpoint and stole less than
$1,000 cash and fled from police officers. That being said, the proof adduced at trial was
insufficient to establish that the defendant stole the Smith and Wesson handgun. To be
sure, the evidence clearly established that the defendant possessed the weapon, but the
only proof that the gun had been stolen was Sergeant Taylor’s testimony that he “r[a]n
the serial number[]” through some database, which resulted in his deciding to charge the
                                             -6-
defendant with a weapon’s related offense.1 In our view, this information was
insufficient to establish that the defendant stole the weapon. See T.C.A. § 39-14-103(a)
(“A person commits theft of property if, with intent to deprive the owner of property, the
person knowingly obtains or exercises control over the property without the owner’s
effective consent.”).

              Accordingly, we vacate the defendant’s conviction of theft of property
valued at $1,000 or less for the handgun and dismiss that charge, but we affirm the trial
court’s judgments as to the defendant’s other convictions.

                                                _____________________________________
                                                JAMES CURWOOD WITT, JR., JUDGE




1
        Sergeant Taylor testified that he charged the defendant with possession of a stolen weapon;
however, the affidavit of complaint filed in the Haywood County General Sessions Court and signed by
Sergeant Taylor states that the defendant was charged with theft of property valued at less than $500 for
possessing a stolen “Smith & Wesson, semi automatic handgun valued at $449.”

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