        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs September 7, 2011

            STATE OF TENNESSEE v. RODREIGORS JEFFERSON

              Direct Appeal from the Criminal Court for Shelby County
                        No. 08-05087     Chris Craft, Judge




               No. W2010-01602-CCA-R3-CD - Filed October 17, 2011


A Shelby County jury convicted Rodreigors Jefferson (“the Defendant”) of aggravated
robbery. He was sentenced to eighteen years, six months. On appeal, the Defendant argues
that the trial court erred in admitting certain evidence, that the evidence was insufficient to
sustain his conviction, and that the trial court erred in applying a sentencing enhancement
factor. Following a careful review, we affirm the Defendant’s conviction and sentence.

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

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
A LAN E. G LENN, JJ., joined.

James P. DeRossitt IV (on appeal) and Gregg Carman (at trial), Memphis, Tennessee, for the
appellant, Rodreigors Jefferson.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Jennifer S. Nichols, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                          I. Factual & Procedural Background

       This case arises from the December 16, 2007 armed robbery of Christopher Johnson
(“the victim”). A Shelby County Grand Jury indicted the Defendant for aggravated robbery
on August 5, 2008. Following a trial in the Shelby County Criminal Court, a jury convicted
the Defendant of the indicted offense on March 31, 2010. The trial court sentenced him on
May 21, 2010, as a Range II multiple offender, to eighteen years and six months.
       At approximately 3:45 a.m. on Sunday, December 16, 2007, the victim, a self-
employed truck driver, was fueling his semi at a Circle K gas station located at the
intersection of Lamar Avenue and Shelby Drive in Memphis. As he was putting the fuel
nozzle in the passenger-side tank of his truck, the victim saw a red Dodge Dakota pickup
truck enter the parking lot, circle around, and pull into the adjacent bay next to his truck. The
victim walked around to the driver’s side of his semi. He testified that, “[a]s I opened up my
door to get in and sit down, that’s when [the Defendant] jumped out of the red Dakota on the
passenger side with a gun in his right hand.” The victim began to run. When he realized the
Defendant was chasing him, he stopped out of fear that he would be shot. The victim turned
to face the Defendant, at which point the Defendant told him, “Drop it off, bitch.” In
response, the victim handed the Defendant his wallet, which contained six hundred dollars
and three credit cards. The Defendant took the wallet, ran back to the Dodge Dakota, got in
the passenger-side door, and rode away.

       The victim called the police. When they arrived he described his assailant as a black
male, mid- to late-twenties, approximately 5’7” tall, 135-140 pounds, with no facial hair, and
eyebrows with a distinctive arch. The victim told police that his assailant was wearing a two-
tone, gray hooded sweatshirt, and was carrying a gray nine-millimeter handgun. The victim
did not notice any tattoos on his assailant, and he testified to believing the assailant was
either bald or wore his hair “short to the head” but could not be certain because the
sweatshirt’s hood was over the assailant’s head. As the Dodge Dakota drove away, the
victim made out four possible license plate numbers, which he provided to the police. Police
officers were unable to locate the truck that night. Later, the victim gave the police one
additional possible license plate number.

       Officer Joseph Poindexter, a Memphis City police officer, began to investigate the
robbery. He testified that the license plate numbers given by the victim became part of his
investigation; however, they did not identically match any vehicle fitting the victim’s
description. On cross-examination, the following exchange occurred between defense
counsel and Officer Poindexter:

              Q: [Y]ou also learned that there were some different tag
              numbers for you to at least investigate, correct?
              A: Yes, sir.
              Q: Now, you looked up those tag numbers, right?
              A: Yes, sir
              Q: None of them came back registered to a red Dodge Dakota,
              did they?
              A: No, sir.



                                               -2-
              Q: None of them came back registered to [the Defendant] for
              another vehicle, did they?
              A: No, sir.
              Q: Did you run the tags just in Tennessee, or did you run
              Mississippi and Arkansas potential tag numbers?
              A: We did the inlets for Mississippi and Arkansas, also.
              Q: So none of those came back registered to a red Dodge
              Dakota?
              A: No, sir.
              Q: None of them came back registered to [the Defendant]?
              A: No, sir.
              Q: During your investigation and looking up tag numbers, did
              you find out how many red Dodge Dakotas are in Shelby
              County?
              A: No, sir.
              Q: Did you find out how many are in the state of Tennessee?
              A: No, sir.
              Q: Did you find out how many were in the state of Mississippi?
              A: No, sir.
              Q: Or Arkansas?
              A: No, sir.
              Q: So you have no idea how many red Dodge Dakotas may be
              out traveling the streets at any point in time; is that fair to say?
              A: Yes, sir.

       Soon after this exchange, out of the presence of the jury, the State asserted that the
Defendant had “opened the door” to further explanatory testimony by Officer Poindexter.
In an offer of proof, Officer Poindexter testified that one of the license plate numbers given
by the victim nearly matched those on a red Dodge Dakota pickup truck that had earlier been
reported stolen. According to Officer Poindexter, by transposing one digit of one of the
license plate numbers given by the victim, he was able to match it to the reportedly stolen
Dodge Dakota. After weighing the probative and prejudicial value of Officer Poindexter’s
testimony, the trial court ruled from the bench as follows:

                     I’m going to allow [the State] to ask [Officer Poindexter]
              about looking at the tag numbers [the victim] gave.

                     I’m going to allow [Officer Poindexter] to say that he
              tracked it to a truck owned by another person, without



                                              -3-
              mentioning that person’s name, a lady, and that she had reported
              it stolen.

                      We’re not going to talk about when it might have been
              stolen, under the circumstances, we’re not going to talk about
              carjacking, just that it had been reported stolen. And that
              statement is not going to be used to offer the truth that it was
              stolen but just that it was – it had been reported stolen, and that
              was the end of that . . . but we can’t get out that this was . . . a
              carjacking, a robbery, the day before or anything that would
              relate to this Defendant.

                      Nothing in the Defendant’s statement that’s in evidence
              relates to his owning the car, driving the car, just that he had
              been in the car, and I’ve got to balance the right of the State to
              put its proof in proper context with the Defendant’s right not to
              be prejudiced by any bad acts . . . .

                      [The Defendant] was never charged . . . with taking the
              car. It has nothing to do with him as far as when and if the car
              was stolen. But that way, the State will be allowed to get in the
              fact that [Officer Poindexter] did follow up on it, but we cannot
              point at the Defendant as committing a crime or being with
              someone who committed a crime because that would show
              [Tennessee Rule of Evidence] 404(b) problems.

        Thus, Officer Poindexter was allowed to testify to the jury that he checked the license
plate numbers given by the victim, and that, by transposing one number, he was able to match
tag number 871-GDG to a red Dodge Dakota pickup truck that had been reported stolen. The
trial court then provided the following curative instruction to the jury:

              The Court: This Defendant, Mr. Jefferson was never charged
              with stealing this car.

                     It has nothing to do with him or this case other than the
              allegation, by the State’s theory, that this car may have been
              used in a crime.

                    So I’m allowing you to hear that evidence so that you will
              – if you consider it truthful – see what this officer did in

                                              -4-
              following up on his investigation. But I do that at the risk of
              your following these instructions, that you cannot use that at all
              against [the Defendant].

                      If there were another trial – if that truck were, in fact,
              stolen, and there were another trial with someone else who was
              developed as a suspect for stealing it, we would get into all that
              kind of stuff, but that has absolutely nothing to do with this trial.

                     It’s only being offered to show what this officer did in
              pursuing that lead and coming up against that blind-out. Does
              everybody understand that?

              Jury Members: (Affirmative responses.)

              The Court: So can y’all all promise me you cannot – the fact that
              a truck was or was not stolen, can y’all promise me you will not
              hold that at all against this Defendant, who was never held
              responsible or even charged with anything? Can y’all do that?

              Jury Members: (Affirmative responses.)

        Officer Poindexter’s investigation initially developed Onterio Knox, a/k/a “Tokyo,”
as a suspect in the robbery. On December 22, 2007, Officer Poindexter presented the victim
with a photographic lineup containing Knox’s photograph. The victim was unable to identify
anyone in this lineup as his assailant. Officer Poindexter subsequently developed the
Defendant as a suspect, and, on February 19, 2008, presented the victim with a second
photographic lineup, which included a photograph of the Defendant. The victim identified
the Defendant as the man who robbed him.

      Police interviewed the Defendant on February 28, 2008. During the interview, he
denied any role in robbing the victim; however, he did provide police with a written
statement in which, as relevant here, he admitted to being in the Dodge Dakota in question
with Knox on the day after the robbery, December 17, 2007.

       At trial, the State sought to admit into evidence the Defendant’s statement to police.
Defense counsel objected, arguing that the Defendant’s statement was unfairly prejudicial.
See Tenn. R. Evid. 404(b). Following a lengthy jury-out hearing in which the trial court,
defense counsel, and the prosecutor consulted to redact the Defendant’s statement, the
following portion of the statement was admitted into evidence:

                                               -5-
                Q: What type of vehicle were you in and where were you
                parked?
                A: I’m not familiar with the name of the street but we were in
                the red Dodge Dakota you were talking about.
                Q: Who was with you in the red Dodge Dakota[?]
                A: Me, Marrinno Stewart and Tokyo[.] I don’t know his last
                name but I used to date Tawana Towers who is Marrinno’s
                cousin and Tokyo’s aunt.
                Q: When the red Dodge Dakota was parked[,] who stayed in it
                and who got out?
                A: Me and Tokyo stayed in the truck. Marrinno was driving and
                when he got out Tokyo slid over to the driver’s seat and I was in
                the passenger seat.

                Q: Describe what happened.
                A: Marinno picked me up between 7:00 and 8:00 a.m. in the red
                Dodge Dakota that Monday [i.e., December 17, 2007]. We
                ended up in the “SUB”1 some kind of way[.] [I]t wasn’t on our
                agenda though.

       The trial court determined that the above redacted statement was admissible under
Tennessee Rule of Evidence 404(b) because it was “offered to prove [the Defendant’s]
familiarity with an undesignated red Dodge Dakota truck at the time surrounding the case
that we have on trial, not for any propensities to commit other offenses.” The redacted
statement delivered to the jury consisted of four pages. The first page, titled “Witness
Statement,” contained the Defendant’s biographical information, contact information, details
regarding the date, time, and place of the police interview, a statement advising the
Defendant of his Miranda rights, and the Defendant’s affirmative responses that he
understood his rights and wished to make a statement. The second and third pages consisted
of the excerpted portions above, and, spread over two pages, contained a considerable
amount of blank “white space” where other portions of his statement had been redacted.
Additionally, certain sentences within the statement contained gaps or spaces where redaction
occurred. Consequently, the trial court gave a curative instruction to the jury in which it
explained that the redactions had been made in accordance with the Rules of Evidence, that
the redactions did not concern a crime that the Defendant was charged with, and that the jury
should disregard the redactions and use the statement for its intended purpose only.



       1
         Officer Poindexter testified that the “SUB” is the given name of a neighborhood in Memphis that
is “a few miles east” of the Circle K gas station where the robbery occurred.

                                                  -6-
        At the close of the State’s case-in-chief, the Defendant orally moved for a judgment
of acquittal, which was denied. In his proof, the Defendant offered the testimony of two of
his aunts, Daisy Boyd and Emma Johnson. Both aunts testified that the Defendant was 5’5”,
had tattoos on the back of both hands, and that, at the time of the robbery, he was thirty-one
years old, had facial hair, and wore his hair about an inch long in a style called “twisters.”
Both aunts also testified as alibi witnesses. According to their testimony, at the time of the
robbery, the Defendant lived with Ms. Boyd and Ms. Johnson at Ms. Johnson’s home in
Memphis. Both testified that in the early morning hours of December 16, 2007, the
Defendant was asleep at Ms. Johnson’s home. They testified that they remembered that
specific night because it was the night of a birthday party for another of the Defendant’s
aunts, Betty Johnson. Each testified that the Defendant attended the birthday party and went
to sleep that night without leaving the house. Although neither alibi witness testified to
seeing the Defendant asleep in his bed at the time that the robbery occurred, each testified
that the Defendant was at the house when they awoke in the morning.

       At the conclusion of the trial, the jury convicted the Defendant of aggravated robbery,
a Class B felony. The trial court conducted a sentencing hearing on May 21, 2010. It found
the Defendant to be a Range II multiple offender, which carries a sentencing range of twelve
to twenty years on a Class B felony. The trial court found no applicable mitigating factors,
but found that the Defendant’s lengthy prior criminal history and his role as a leader in the
robbery were appropriate enhancement factors.2 Upon consideration of these and other
appropriate sentencing factors, the trial court sentenced the Defendant to eighteen years and
six months. The Defendant filed a motion styled “Motion for Judgment of Acquittal, or in
the Alternative, Motion for New Trial,” which was denied by order entered June 18, 2010.
The Defendant timely appealed.




       2
           The Sentencing Act provides, in relevant part, as follows:

       If appropriate for the offense and if not already an essential element of the offense, the court shall
       consider, but is not bound by, the following advisory factors in determining whether to enhance a
       defendant’s sentence:

       (1) The defendant has a previous history of criminal convictions or criminal behavior, in addition
       to those necessary to establish the appropriate range;

       (2) The defendant was a leader in the commission of an offense involving two (2) or more criminal
       actors.

Tenn. Code Ann. § 40-35-114(1)-(2) (Supp. 2007).

                                                     -7-
                                    II. Issues Presented

       The Defendant raises the following issues for review, as restated from his brief:

              (1) Whether the trial court erred by allowing a redacted version
              of Defendant’s statement to police to be introduced at trial?

              (2) Whether the trial court erred by allowing Officer Poindexter
              to testify concerning the transposed license plate numbers
              reported by the victim and that a Dodge Dakota with similar tags
              had been reported stolen?

              (3) Whether the trial court erred by denying the Defendant’s
              motion for judgment of acquittal at the conclusion of the State’s
              case-in-chief?

              (4) Whether the trial court erred by applying as an enhancement
              factor that the Defendant was a leader in the commission of an
              offense involving two or more criminal actors?

                                      III. Analysis
                            1. Admissibility of State’s Evidence

        The Defendant contends on appeal that certain evidence was improperly admitted at
trial. Specifically, the Defendant argues that the following evidence was unfairly prejudicial
and should not have been admitted: (1) his redacted statement to police in which he admitted
to being in a red Dodge Dakota on the day after the robbery; and (2) Officer Poindexter’s
testimony concerning the license plate numbers provided by the victim, which nearly
matched a red Dodge Dakota pickup truck that had been reported stolen.

                                   a. Standard of Review

        Tennessee Rule of Evidence 404(b) prohibits evidence of other crimes, wrongs, or
acts that are offered “to prove the character of a person in order to show action in conformity
with the character trait.” Tenn. R. Evid. 404(b). Such evidence may be admissible, however,
for other purposes, such as to show identity, motive, intent, common scheme or plan, or
absence of mistake Id.; State v. Rickman, 876 S.W.2d 824, 827 (Tenn. 1994) (citing Bunch
v. State, 605 S.W.2d 227, 229 (Tenn. 1980)). Rule 404(b) sets forth the specific procedure
the trial court must follow to determine the admissibility of proffered evidence:



                                              -8-
              (1) The court upon request must hold a hearing outside the
              jury’s presence;

              (2) The court must determine that a material issue exists other
              than conduct conforming with a character trait and must upon
              request state on the record the material issue, the ruling, and the
              reasons for admitting the evidence;

              (3) The court must find proof of the other crime, wrong, or act
              to be clear and convincing; and

             (4) The court must exclude the evidence if its probative value is
             outweighed by the danger of unfair prejudice.
Tenn. R. Evid. 404(b).

        Where the trial court has substantially complied with the procedural requirements of
Rule 404(b), then we review the trial court’s evidentiary ruling under an abuse of discretion
standard. State v. Dubose, 953 S.W.2d 649, 652 (Tenn. 1997). An appellate court will find
an abuse of discretion “only when the trial court applied incorrect legal standards, reached
an illogical conclusion, based its decision on a clearly erroneous assessment of the evidence,
or employed reasoning that causes an injustice to the complaining party.” State v. Banks,
271 S.W.3d 90, 116 (Tenn. 2008) (citing Konvalinka v. Chattanooga–Hamilton Cnty. Hosp.
Auth., 249 S.W.3d 346, 358 (Tenn. 2008)). Here, the trial court meticulously complied with
the procedural requirements of Rule 404(b), a conclusion which the Defendant does not
contest on appeal. Thus, we review the trial court’s decision on these evidentiary issues
under an abuse of discretion standard.

                     b. The Defendant’s Redacted Statement to Police

       As noted above, during the police investigation, the Defendant provided a written
statement, in which, as relevant here, he admitted to being in the stolen truck on the day after
the robbery of the victim. At trial, the State attempted to introduce the written statement as
circumstantial evidence linking the Defendant to the vehicle used in the robbery. The trial
court determined that the redacted statement, excerpted above, was relevant to a material
issue other than conduct conforming with a character trait because it was “offered to prove
[the Defendant’s] familiarity with an undesignated red Dodge Dakota truck at the time
surrounding the case that we have on trial, not for any propensities to commit other
offenses.”




                                              -9-
       On appeal, the Defendant appears to argue both that the substance of the redacted
statement was unfairly prejudicial under the balancing procedure set forth by Tennessee Rule
of Evidence 404(b), and that the statement was so heavily redacted that it created an unfairly
prejudicial impression with the jury that something was amiss. To this latter argument, the
Defendant asserts in his brief that:

                It would be difficult for any reasonable jury not to conclude that
                other ‘bad acts’ of [the] [D]efendant are being concealed by
                such redactions. Such speculations by the jury carry a very high
                likelihood of leading to a conviction based on unfairly
                prejudicial and ultimately irrelevant suggestions that the
                [Defendant] may have committed or been involved in other
                crimes.

        After reviewing the record, we conclude that the trial court did not abuse its discretion
in admitting the redacted statement. Preliminarily, we note that the trial court clearly
complied with the procedural requirements of Rule 404(b). The court correctly recognized
that evidence relating to the stolen truck could unfairly prejudice the Defendant and carefully
weighed this risk against the statement’s probative value. We agree with the trial court that
the portions of the statement that were admitted were not unfairly prejudicial. The trial court
carefully redacted every part of the statement that could be read to suggest that the Defendant
participated in stealing the Dodge Dakota.

        We also agree with the State that any confusion or speculation by the jury regarding
omissions or gaps in the statement in the form of “white space” was cured by the trial court’s
instruction. A jury is presumed to have obeyed a trial court’s curative instruction. State v.
Reid, 164 S.W.3d, 286, 323 (Tenn. 2005) (citing State v. Shaw, 37 S.W.3d 900, 904 (Tenn.
2001)). Here, the trial court’s instruction specifically and adequately instructed the jury that
the matters that had been redacted were irrelevant to the offense with which the Defendant
was charged, that they had been redacted in accordance with the Rules of Evidence, and that
the jury was to disregard the redactions and use the statement only for its intended purpose.
This curative instruction was sufficient to assuage any concerns the jury may have had
regarding omissions or “white space” in the Defendant’s statement.3 Accordingly, we
conclude that the Defendant is not entitled to relief on this issue.




        3
         We note that the Defendant has not advanced any appellate argument on this issue under Tennessee
Rule of Evidence 403.

                                                  -10-
         c. Officer Poindexter’s Testimony Regarding the License Plate Number

       The Defendant also argues that the trial court erred when it permitted Officer
Poindexter to testify that the license plate numbers provided by the victim nearly matched
a Dodge Dakota that had been reported stolen. Similar to his argument regarding the
redacted statement, the Defendant contends that Officer Poindexter’s testimony created an
unfairly prejudicial inference that the Defendant was involved in stealing the truck. The
State contends that the Defendant “opened the door” to Officer Poindexter’s testimony by
asking him on cross-examination whether any of the license plate numbers provided by the
victim were registered to the Defendant or to a red Dodge Dakota pickup truck.

        The doctrine of curative admissibility “permits the State, on redirect, to question the
witness to clarify or explain the matters brought out during, or to remove or correct
unfavorable inferences left by, the previous cross-examination.” State v. Land, 34 S.W.3d
516, 531 (Tenn. Crim. App. 2000) (citing People v. Manning, 695 N.E.2d 423, 433 (Ill.
1998)). The doctrine of curative admissibility allows the State to admit otherwise
inadmissible evidence “in order to explain or counteract a negative inference” raised by an
issue that a defendant injects into the case. Id. (citations omitted); see also Neil P. Cohen,
Sarah Y. Sheppeard & Donald F. Paine, T ENNESSEE L AW OF E VIDENCE § 6.11[6][a] (5th ed.
2005). The doctrine is designed to guarantee fairness. Land, 34 S.W.3d at 531. Thus, it
prevents a party from manipulating the Rules of Evidence so as to gain exclusion of certain
evidence and then “extracting selected pieces of this evidence for his own advantage, without
the Government being able to place them in their proper context.” Id. (quoting Lampkins v.
United States, 515 A.2d 428, 431 (D.C. 1986)). On the other hand, the doctrine of curative
admissibility also limits the introduction of inadmissible evidence in that it may only be used
to “shield a party from adverse inferences and is not to be converted into a doctrine for
injecting prejudice.” Id. (citing Manning, 695 N.E.2d at 434).

        In the present case, Officer Poindexter testified on direct examination, without
objection, that the victim gave him several possible license plate numbers that became part
of his investigation. Then, on cross-examination, defense counsel questioned Officer
Poindexter as to whether any of the potential license plate numbers given by the victim
matched a red Dodge Dakota or a vehicle registered to the Defendant. The defense clearly
was trying to cast doubt on both the completeness of the police investigation and the veracity
of the victim’s visual identification of the getaway vehicle. In a subsequent jury-out hearing,
when the State sought to introduce this evidence because the Defendant had “opened the
door,” Officer Poindexter testified that by transposing one number, he was able to match one
of the license plate numbers provided by the victim to a red Dodge Dakota that had been
reported stolen. After weighing the probative value of this evidence against its prejudicial
effect, as required by Rule 404(b), the trial court allowed Officer Poindexter’s testimony to

                                             -11-
this effect, but did not allow him to testify that the Defendant was involved in stealing the
truck. The trial court then gave the curative instruction to the jury excerpted above.

        After a thorough review of the record, we conclude that the trial court did not abuse
its discretion by allowing Officer Poindexter to testify that in performing his investigation,
he ran the license plate numbers provided by the victim and that, by transposing a number,
he was able to match those numbers to the tag number of a reportedly stolen Dodge Dakota.
Nothing in Officer Poindexter’s testimony implicated the Defendant in the separate crime of
stealing the Dodge Dakota. Officer Poindexter’s testimony simply explained a negative
inference that had been raised on cross-examination by the Defendant. His testimony was
properly introduced under the doctrine of curative admissibility. Without Officer
Poindexter’s explanatory testimony, the State would have been unfairly prejudiced by the
Defendant’s insinuation that the police investigation was not thorough or that the victim’s
identification of the vehicle used in the robbery was unduly problematic. The trial court
carefully observed the proper procedure and weighed the prejudicial effect and probative
value of the proffered testimony. The Defendant has failed to show an abuse of discretion
by the trial court on this evidentiary issue.

         2. Denial of Motion for Judgment of Acquittal / Sufficiency of Evidence

       The Defendant next contends that the trial court erred when it denied his motion for
judgment of acquittal. The trial court denied the Defendant’s motion at the close of the
State’s proof. The Defendant elected to present evidence after the trial court denied the
motion, thus waiving appellate review of the motion for judgment of acquittal. See State v.
Conrad, No. M2008-01342-CCA-R3-CD, 2009 WL 3103776, at *6 (Tenn. Crim. App. Sept.
29, 2009); State v. Clardy, No. M2007-02729-CCA-R3-CD, 2009 WL 230245, at *11 (Tenn.
Crim. App. Feb. 2, 2009). We, however, will review whether sufficient evidence was
presented to support the Defendant’s conviction for aggravated robbery. In doing so, we will
consider both the evidence presented by the State as well as the evidence presented by the
Defendant. See Clardy, 2009 WL 230245, at *11. Our 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, 99 S.Ct. 2781, 2789 (1979); see also Tenn. R. App. P. 13(e).
After a jury finds a defendant guilty, the presumption of innocence is replaced with a
presumption of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Consequently, the
defendant has the burden on appeal of demonstrating that the evidence was insufficient to
support the jury’s verdict. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The appellate
court does not weigh the evidence anew; rather, “a jury verdict, approved by the trial judge,
accredits the testimony of the witnesses for the State and resolves all conflicts” in the
testimony and all reasonably drawn inferences in favor of the State. State v. Harris, 839

                                             -12-
S.W.2d 54, 75 (Tenn. 1992). Thus, “the State is entitled to the strongest legitimate view of
the evidence and all reasonable or legitimate inferences which may be drawn therefrom.”
Id. at 75 (citation omitted). This standard of review applies to guilty verdicts based upon
direct or circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)
(citing State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). In Dorantes, our Supreme
Court adopted the United States Supreme Court standard that “direct and circumstantial
evidence should be treated the same when weighing the sufficiency of such evidence.” Id.
at 381. Accordingly, the evidence need not exclude every other reasonable hypothesis except
that of the defendant’s guilt, provided the defendant’s guilt is established beyond a
reasonable doubt. Id.

       In the present case, the Defendant was convicted of aggravated robbery. Robbery is
defined as “the intentional or knowing theft of property from the person of another by
violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401(a) (2006). A robbery
becomes aggravated, as relevant here, when it 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.” Tenn. Code Ann. § 39-13-402(a) (2006).

        At trial, the victim testified that the Defendant approached him at the Circle K gas
station with a drawn handgun. When the victim ran, the Defendant chased him. The victim
testified that he feared the Defendant would shoot him, and so he stopped running and turned
around to face the Defendant. According to the victim, the Defendant told him, “Drop it off,
bitch,” and that in response, he handed the Defendant his wallet, which contained six
hundred dollars and three credit cards. The Defendant then took the wallet and escaped in
a red Dodge Dakota pickup truck. The victim provided police with a description of his
assailant and possible license plate numbers to the truck, one of which nearly matched a
vehicle that the Defendant admitted being in the day after the robbery. The victim then
positively and unequivocally identified the Defendant as the robber both in a photographic
lineup and at trial. In his defense, the Defendant provided testimony that his physical
appearance differed from that described by the victim. Specifically, the testimony indicated
that at the time of the robbery, the Defendant had facial hair, wore a different hairstyle than
described by the victim, and had tattoos on the back of each hand, which the victim did not
notice. The Defendant also had two alibi witnesses, his aunts, who testified that he was
asleep in bed on the night of the robbery.

        The weight and credibility given to the testimony of witnesses, and the reconciliation
of conflicts in that testimony, are questions of fact. State v. Sheffield, 676 S.W.2d 542, 547
(Tenn. 1984). Thus, the credibility of an eyewitness identifying the accused as the
perpetrator of the crime for which he stands trial is a matter entrusted to the trier of fact and
not this Court. State v. Strickland, 885 S.W.2d 85, 87 (Tenn. Crim. App. 1993). Likewise,

                                              -13-
the credibility of alibi testimony is a question of fact to be resolved by the jury. Cole v. State,
215 S.W.2d 824, 825 (Tenn. 1948). It is well settled that “the testimony of a victim, by itself,
is sufficient to support a conviction.” Strickland, 885 S.W.2d at 87 (citing State v. Williams,
623 S.W.2d 118, 120 (Tenn. Crim. App. 1981)). In this case, the jury, as the trier of fact
concerning the credibility of the witnesses, accredited the testimony of the victim over the
testimony of the alibi witnesses. It is not the role of this Court to reevaluate the evidence or
substitute its own inferences for those drawn by the jury. State v. Winters, 137 S.W.3d 641,
655 (Tenn. Crim. App. 2003) (citations omitted). Consequently, we hold that the evidence
clearly was sufficient to support the Defendant’s conviction for aggravated robbery and
conclude that the trial court did not err in denying the Defendant’s motion for judgment of
acquittal.

                                         3. Sentencing

        Lastly, the Defendant argues that the trial court erred by applying as a sentencing
enhancement factor that the Defendant was a leader in the commission of an offense that
involved two or more criminal actors. On appeal, the applicable standard of review of a
challenged sentence is de novo on the record with a presumption of correctness. Tenn. Code
Ann. § 40-35-401(d) (2006). This presumption is “conditioned upon the affirmative showing
in the record that the trial court considered the sentencing principles and all relevant facts and
circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The party challenging
the sentence has the burden of demonstrating that it is improper. Tenn. Code Ann. § 40-35-
401, Sentencing Comm’n Cmts.; State v. Carter, 254 S.W.3d 335, 344 (Tenn. 2008).

        Following the 2005 amendments to the Sentencing Act, “a trial court ‘shall consider,
but is not bound by’ an ‘advisory sentencing guideline’ that suggests an adjustment to the
defendant’s sentence upon the presence or absence of mitigating and enhancement factors.”
Carter, 254 S.W.3d at 344 (quoting Tenn. Code Ann. § 40-35-210(c)). These mitigating and
enhancement factors are set out in sections 40-35-113 and -114, and the trial court shall
consider “[e]vidence and information offered by the parties” in applying these factors. Tenn.
Code Ann. § 40-35-210(b)(5) (2006). While a trial court has considerable discretion when
imposing a sentence, it is required to place on the record which “enhancement or mitigating
factors were considered, if any, as well as the reasons for the sentence, in order to ensure fair
and consistent sentencing.” Tenn. Code Ann. § 40-35-210(e). A defendant may challenge
an enhanced sentence on direct appeal. Tenn. Code Ann. § 40-35-401(b)(2) (2006).
Consequently, if the trial court applies inappropriate enhancement or mitigating factors, or
fails to follow the guidelines of the Sentencing Act, the presumption of correctness fails and
our review becomes de novo. Carter, 254 S.W.3d at 345 (citing State v. Shelton, 854 S.W.2d
116, 123 (Tenn. Crim. App. 1992); State v. Pierce, 138 S.W.3d 820, 827 (Tenn. 2004)).



                                               -14-
       The trial court sentenced the Defendant as a Range II multiple offender to eighteen
years and six months. The court declined to find mitigating factors, but found two
enhancement factors. First, the trial court enhanced the Defendant’s sentence based on his
extensive previous history of criminal behavior, which was over and above that necessary to
establish his range, including five felony convictions, numerous misdemeanor offenses, and
a long history of illegal drug use.4 See Tenn. Code Ann. § 40-35-114(1). On appeal, the
Defendant does not contest the trial court’s application of this enhancement factor to his
sentence.

       Second, the trial court found that the Defendant was a leader in the commission of an
offense involving two or more criminal actors. See Tenn. Code Ann. § 40-35-114(2). In
applying this factor, the trial court stated from the bench, as follows:

                 I also find too that he was the leader in the commission [of an]
                 offense involving two or more criminal actors. I’m not saying
                 he was the leader. I’m saying he was a leader, in that, he’s the
                 one with the weapon that jumped out of the car. It’s kind of
                 hard to say that somebody in the car would order him to do it.
                 There’s no proof of that in the record and he’s the one with the
                 gun, but he is the one who actually performed the robbery and
                 took the items.

       The Defendant asserts that the application of this second enhancement factor was in
error because the evidence did not reveal the identity of the driver or what role the driver may
have played in the robbery. Consequently, the Defendant argues that any finding as to the
driver’s involvement in the robbery is merely speculation.




        4
          The Defendant’s history of felonies included convictions for: (1) burglary, a Class D felony, on
September 18, 1997; (2) criminal attempt, a Class E felony, on November 4, 1997; (3) theft over $500, a
Class E felony, on September 20, 1999; (4) theft over $10,000, a Class C felony, on November 15, 2000; and
(5) theft over $1,000, a Class D felony, on June 1, 2005. The Defendant’s history of misdemeanors included
convictions for, inter alia: (1) failure to appear, desecration of a venerated object, and driving on a revoked
license, June 5, 1996; (2) driving on a revoked license, January 25, 1997; (3) driving on a revoked license,
December 26, 2002; (4) theft of a vehicle, July 11, 2004; (5) criminal trespass, March 22, 2007; (6) criminal
trespass, May 1, 2007; (7) criminal trespass, May 2, 2007; (8) criminal trespass, August 7, 2007; (9) criminal
trespass, August 17, 2007; (10) simple possession of cocaine, September 24, 2007; (11) vandalism, February
25, 2008; and (12) assault, November 6, 2008. The Defendant’s presentence report indicated that he had
used illegal drugs on a daily basis, including marijuana, powder cocaine, and crack cocaine, since the age
of thirteen. The Defendant stated that he was physically dependent on crack cocaine and was not ready for
a drug abuse program because he had not decided to quit using illegal drugs.

                                                     -15-
       We must agree with the Defendant on this issue. The identity of the driver was not
in evidence; neither was the driver’s degree of knowledge of the actions of the Defendant.
The record is also silent as to whether the driver was an active participant or whether the
driver was under duress placed upon him or her by the Defendant. While the trial court’s
assumptions in applying this enhancement factor are logical, we simply cannot find sufficient
evidence in the record to support those assumptions. Therefore, we conclude that the trial
court erred in applying this enhancing factor.

       Having found that the trial court misapplied an enhancement factor, we must review
the Defendant’s sentence de novo. Carter, 254 S.W.3d at 345. In performing this de novo
review, we are mindful that under the amended statute, there is no longer a presumptive
sentence. Id. at 343. “Rather, the trial court is free to select any sentence within the
applicable range so long as the length of the sentence is ‘consistent with the purposes and
principles of [the Sentencing Act].’” Id. (citing Tenn. Code Ann. § 40-35-210(d)).5

        Upon our de novo review of the evidence and the purposes and principles of the
Sentencing Act, we find that a sentence of eighteen years and six months was appropriate.
The Defendant has a substantial prior criminal history over and above that necessary to
establish his sentencing range. Additionally, the record indicates that the Defendant has used
illegal drugs since about age thirteen. Moreover, the Defendant reports that his body still
needs crack cocaine, but that he is not ready for a drug abuse program because he has not
decided to quit his drug habit. This makes any chance of rehabilitation very unlikely.

       Aggravated robbery is a Class B felony, and the sentence range for a Class B felony,
Range II offender is twelve to twenty years. Tenn. Code Ann. §§ 39-13-402(b); 40-35-
112(b)(2) (2006). Given the Defendant’s prior criminal history, admitted history of illegal
drug use, and poor chance of rehabilitation, the trial court was well within the applicable
sentencing purposes and principles to sentence the Defendant to eighteen years and six
months. Consequently, we find no error in the sentence ordered by the trial court.




       5
         The purposes and principles of the Sentencing Act are set forth at Tennessee Code Annotated
sections 40-35-102 and -103.

                                               -16-
                              IV. Conclusion

For the foregoing reasons, we affirm the judgment of the trial court.

                                                 _________________________
                                                 JEFFREY S. BIVINS, JUDGE




                                    -17-
