             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT JACKSON

                        SEPTEMBER SESSION, 1999
                                                        FILED
                                                         October 29, 1999

                                                       Cecil Crowson, Jr.
                                                      Appellate Court Clerk
STATE OF TENNESSEE,              *
                                 *      No. 02C01-9901-CR-00030
      Appellee,                  *
                                 *      SHELBY COUNTY
vs.                              *
                                 *      Hon. Arthur T. Bennett, Judge
CARLOS R. PORTO-SAES,            *
                                 *      (Aggravated Robbery; 1 ct.;
      Appellant.                 *      Aggravated Assault, 2 cts)



For the Appellant:                      For the Appellee:

Kevin E. Childress                      Paul G. Summers
Attorney for Appellant                  Attorney General and Reporter
301 Washington Ave., Suite 201
Memphis, TN 38103                       Patricia C. Kussmann
                                        Assistant Attorney General
(ON APPEAL)                             Criminal Justice Division
                                        425 Fifth Avenue North
                                        2d Floor, Cordell Hull Building
                                        Nashville, TN 37243-0493
Ms. Patricia Odell
Attorney at Law
50 North Front Street                   William L. Gibbons
Memphis, TN 38103                       District Attorney General

(AT TRIAL)                              Glen C. Baity
                                        Asst. District Attorney General
                                        Criminal Justice Center - Third Floor
                                        201 Poplar Avenue
                                        Memphis, TN 38103




OPINION FILED:

AFFIRMED



David G. Hayes, Judge
                                                    OPINION



         The appellant, Carlos R. Porto-Saes, was convicted by a Shelby County jury

of one count of aggravated robbery and two counts of aggravated assault.1 For

these convictions, he received sentences of ten years incarceration for aggravated

robbery and three years for each aggravated assault conviction. The sentences

were ordered to be served concurrently. In this appeal as of right, the appellant

presents only one issue for our review: “Whether the evidence is sufficient to

support his convictions for aggravated robbery and aggravated assault beyond a

reasonable doubt?”



         After a review of the evidence, we affirm the appellant’s convictions.




                                                 Background



         On February 21, 1997, at approximately 7:30 p.m., the Krystal Restaurant

located at 496 Watkins in Memphis was robbed by two men wearing masks. After

entering the restaurant, one of the masked robbers, later identified as the appellant,

entered the dining room area, brandishing a pistol and ordered the customers,

including Jesse Holt and Julian Williams, onto the floor. The appellant remained in

the dining area while the second robber, wearing a black and orange mask and

wielding an iron pipe, entered the drive-through window area. When the second

robber entered this area, he confronted Krystal employee, Mabline Thompson, who

was standing near the cash register and ordered, “Bitch, give me your money and

get down.” The robber then proceeded to grab money from the cash register and



         1
         On July 10, 1997, a Shelby County Grand Jury indicted the appellant and his co-
defend ant, char ging them with one c ount of a ggrava ted robb ery of Ma bline Tho mps on. On
January 13, 1998, the Grand Jury returned additional indictments against the appellant, charging
him with tw o cou nts o f agg rava ted a ssa ult ag ains t Jes se H olt an d Julia n W illiam s res pec tively.

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put it in a pouch around his waist. He then ordered Ms. Thompson into the office

where he forced her to open the restaurant’s safe. As Ms. Thompson was being led

from the drive-through area to the office, she noticed another man in the dining

room wearing a blue mask and holding a pistol. After obtaining the money from the

safe, Ms. Thompson and another employee, Lenora Fletcher, were struck by the

robber with the iron pipe. During the robbery, Ms. Fletcher also observed a masked

individual standing in the dining area holding a nine millimeter pistol on the

customers.



       Memphis Police Officer Craig Cook and his partner, Officer Michael

Richardson, were flagged down in their separate patrol cars at North Parkway and

Watkins and were advised that the nearby Krystal restaurant was being robbed.

Joined by Memphis Police Officer Fred Farah, Cook and Richardson responded to

the robbery call at the Krystal Restaurant. Upon arriving at the scene, Officer Farah

walked towards the counter while the other two officers proceeded toward the rear

of the store. Officer Farah noticed “everybody was on the ground.” He then “heard

shuffling in back of the counter. . . .” As he approached the counter, the robber

wearing the black and orange mask, later identified as co-defendant Alexi Oliveras,

“popped up from the counter.” Oliveras “had a pipe in his hand. . . .” Officer Farah

restrained Oliveras and placed him in custody.



       Meanwhile, Officer Cook observed the appellant in the dining area

       squatting down in the floor wearing a black ski mask, brown gloves,
       and holding a pistol. When [the appellant] looked over and saw me
       coming in the front door, he stuck the pistol down the back of his
       pants, pulled off the black mask and his gloves, threw them behind
       him. Then he sat down in a chair at a table, put his hands flat out on
       the table. . . .

Officer Cook recovered the weapon, a nine millimeter, from the back waistband of

the appellant’s pants. At trial, Officer Cook made an in-court identification of the

appellant as the robber with the gun.



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                                       Analysis



       In his sole issue on appeal, the appellant contends that, when tested against

the reasonable doubt standard, the evidence is insufficient to support the

convictions returned by the jury. Specifically, the appellant contends that all of the

evidence against him is circumstantial and that no victim could identify him as the

perpetrator prior to his being placed in police custody. Moreover, the appellant

asserts that the testimony of Officer Cook, the sole witness who could identify the

appellant as the perpetrator wielding the pistol, is inherently untrustworthy. In

support of this allegation, he asserts that, if the suspect was squatting down behind

a three foot partition as Officer Cook testified, Cook would not have been able to

clearly identify who had the mask and gun. Accordingly, he argues that the physical

obstructions to Officer Cook’s identification of the appellant make the identification

inherently suspect.



       Although a defendant is initially cloaked with the presumption of innocence,

State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982), a jury conviction removes this

presumption of innocence and replaces it with one of guilt, so that on appeal a

convicted defendant has the burden of demonstrating that the evidence is

insufficient. Id. In determining the sufficiency of the evidence, this court does not

reweigh or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.

1978). On appeal, the State is entitled to the strongest legitimate view of the

evidence and all legitimate or reasonable inferences which may be drawn therefrom.

State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). It is the appellate court's duty to

affirm the conviction if the evidence viewed under these standards was sufficient for

any rational trier of fact to have found the essential elements of the offense beyond

a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 2789

(1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); Tenn. R. App. P. 13(e).

This rule is applicable to findings of guilt predicated upon direct evidence,


                                         4
circumstantial evidence, or a combination of both direct and circumstantial evidence.

State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).



       Initially, we agree with the State’s position that the present case does not rely

solely upon circumstantial evidence to support the convictions. Indeed, Officer

Cook’s testimony that he observed the appellant with the mask and the weapon is

direct evidence of the appellant’s involvement in the present offenses. Accordingly,

this argument is without merit.



       Finally, the appellant attacks the reliability of Officer Cook’s identification of

the appellant. The thrust of the appellant’s argument focuses upon the “proverbially

untrustworthy” identification of strangers. See United States v. Wade, 388 U.S.

218, 87 S.Ct. 1926 (1967). Our supreme court specifically addressed these

concerns in State v. Dyle, 899 S.W.2d 607, 609 (Tenn. 1995). The court

acknowledged that the “accuracy of eyewitness testimony is affected by the usual

universal fallibilities of human sense perception and memory.” Dyle, 899 S.W.2d at

612. “This phenomenon, which could obviously affect other forms of evidence also,

is potentialized by the fact that this testimony is prone to many outside influences

(police interrogations, lineups, etc.) and is often decisive.” Id. (citation omitted).

Thus, to account for these prejudicial influences on an eyewitness identification, the

court promulgated a pattern jury instruction on identity instructing the jury to

consider several factors before assessing the weight to be given to a witness’s

identification of a defendant. See Dyle, 899 S.W.2d at 612 (factors to be

considered include: witness’s capacity and opportunity to observe the offender; the

degree of certainty expressed by the witness regarding the identification; the

occasions on which the witness failed to make an identification of the witness; and

the occasions on which the witness made an identification that was consistent with

the identification at trial). The Dyle instruction was provided in the present case.




                                           5
       Officer Cook had a reasonable opportunity to identify the appellant as the

perpetrator when he entered the dining area of the restaurant. Officer Cook

discovered a pistol in the appellant’s pants, a ski mask, and a pair of gloves in the

appellant’s possession upon approaching him at the restaurant table. Officer Cook

never hesitated in his identification of the appellant and at no point did Officer Cook

misidentify or fail to identify the appellant as the perpetrator. The credible

testimony of one identification witness is sufficient to support a conviction if the

witnesses viewed the accused under such circumstances as would permit a positive

identification to be made. See State v. Strickland, 885 S.W.2d 85, 87-88 (Tenn.

Crim. App. 1993). Moreover, it was within the prerogative of the jury to assess the

credibility of Officer Cook. See State v. Adkins, 786 S.W.2d 642, 646 (Tenn.1990);

State v. Burlison, 868 S.W.2d 713, 718-19 (Tenn.Crim.App.1993); Matthews, 805

S.W.2d at 779.



       Viewing the evidence in a light most favorable to the State, we conclude that

the evidence is more than sufficient to support the appellant’s convictions. Tenn. R.

App. P. 13(e). The proof is undisputed that the appellant, through the use of a

deadly weapon, ordered Jesse Holt and Julian Williams onto the floor while his co-

defendant, armed with a weapon, forcibly obtained from Mabline Thompson a sum

of money being the contents of both a cash register and the store safe. See Tenn.

Code Ann. § 39-13-402 (a)(1) (1997); Tenn. Code Ann. § 39-11-402(2) (1997);

Tenn. Code Ann. § 39-13-102(a)(1)(B) (1997). This issue is without merit.



       Accordingly, the judgments of conviction entered by the trial court are

affirmed.




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                          ____________________________________
                          DAVID G. HAYES, Judge



CONCUR:




____________________________________________
JOE G. RILEY, Judge



____________________________________________
THOMAS T. W OODALL, Judge




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