             IN T H E C O U R T O F C R IM I N A L A P PE A L S O F T E N N E S S E E
                                       A T JA C K SO N

                       S T A T E O F T E N N E SS E E v. B O B B Y B R O W N

                      Direct A ppeal from the C ircuit C ourt for T ipton C ounty
                                N o. 3458   J oseph H . W alk er, J ud ge



                       N o. W 1999-00298-C C A -R 3-C D - D ecid ed M ay 30, 2000


        T he D efendant w as indicted for one count of agg ravated robbery and one count of theft ov er
$1,000. H e w as subsequently tried by a T ipton C ounty jury and found g uilty of ag grav ated robbery
and theft ov er $500. In this appeal, the Defend ant argues that the trial court erred by allow ing
introduction of an inv oluntary statem ent w hich he made to police follow ing his arrest, by failing to
grant his motion for new trial on the basis of insufficient ev idence, and by sentencing him
incorrectly. W e hold that the trial court did not err by adm itting the D efendant’ s statement to police,
that the ev idence w as suff icient to support the Def endant’s conv iction, and that the Def endant w as
properly sentenced. A ccordingly , we af firm the judgm ent of the trial court.

T enn. R . A pp. P. 3 A ppeal as of R ight; Judgm ent of the Trial C ourt Af firmed.

W E L L E S , J., deliv ered the opinion of the court, in which H A Y E S , J., and G L E N N , J., joined.

Jason G . W hitw orth, C ov ington, T ennessee, for the appellant, B obby L . Brow n.

Paul G . Sum mers, A ttorney G eneral, M ark E. D av idson, A ssistant A ttorney G eneral, E lizabeth R ice,
D istrict A ttorney G eneral, James W . Freeland, Jr., A ssistant District A ttorney, f or the appellee, S tate
of T ennessee.

                                                   O PIN IO N

         T he T ipton C ounty G rand Jury indicted the D efendant, Bobby B row n, for one count of
agg ravated robbery and one count of thef t ov er $1,000. Foll ow ing a trial conducted on N ov ember
4, 1998, a Tipton C ounty jury conv icted the Def endant of aggrav ated robbery and thef t ov er $500.
T he tri al co urt se nt en ce d t he D ef en da nt as a R an g e II m ul ti pl e o f f en de r to sev enteen y ears
incarceration for the aggravated robbery and three years incarceration for the theft; the trial court
ordered that the sentences be serv ed concurrently. Pursuant to Rule 3 of the T ennessee Rules of
A ppellate Procedure, the D efendant now appeals both his conv iction and his sentence. He presents
three issues for our review : (1) w hether the trial court erred by deny ing his motion for new trial, in
w hich he argued that the police induced him to confess by off ering him m oney to retrieve w eapons
from the crime; (2) w hether the evidence introduced at trial w as sufficient to support his convictions;
and (3) w hether he w as properly sentenced. W e affirm the decision of the trial court.
        K athryn M artin testified that she was w orking at the C orner L iquor Store in C ov ington on
O ctober 22, 1997. S he recalled that at approximately 9:00 p.m., a man walked into the store and
pointed a pistol at her. She tol d h im , “D on ’ t h urt me,” and he demanded that she open the cash
register. A fter she complied, he told her to lie on the floor. H e removed m oney f rom the register
and took a gun w hich was kept beneath the counter. He then remov ed the phone from the w all and
hit M artin on the back w ith the credit card machine before departing. F earful, M artin remained on
the floor for a few m inutes; she then summoned help.

        M a rt in te st if i ed th at th e a v e ra g e amount of m oney in the store’s cash register at the end of
each day w as approxim ately $600 or $700. S he estimated the amount taken on the night of th e
robbery as “anyw here from $500 or $600 or more.” She described the perpetrator of the crime as
a “skinny guy ” betw een fiv e feet, eight inches and six feet tall, but she could not further identify him
because “all [she saw ] of the g uy w as his nose part.” M artin could not say that the D efendant w as
not the perpetrator, but she stated that she did not remem ber ev er seeing the D efendant prior to trial,
either inside or outside of the store.

        T homas B ryant, the owner of the C orner L iquor Store, testified that he w as summ oned to the
store by pol ice on the night of the robbery. H e informed police that $650 had been taken from the
cash register. He also reported that a Sm ith & W esson .357 magnum handgun w orth approximately
$500 had b een s tole n f rom h is st ore.

         Investig ator R icky C handler of the C ov ington Police D epartment testified that he inv estigated
the armed robbery of the C orner L iquor Store w hich took place on O ctober 22, 19 97. H e stated that
he obtained a description of the perpetrator as part of his inv estigation and reported that the
description did not fit the D efe ndan t. H ow ev er, he stated that a few day s after the crime, he and
C aptain C arver, also of the C ov ington P olice D ep art m en t, w ere contacted by the D efendant and a
m a n na m ed F ran k S m it h, J r. A ccording to C handler, the D efendant identif ied K enneth A dams as
the perpetrator of the crime and off ered to recov er the two w eapons inv olv ed in the crime, the
handgun used by the perpetrator and the one stolen from the store, in exchange for money from the
police department. T he D efendant requested $500 for each of the w eapons.

        C handler testified that although the Def endant was not helpful to the police in apprehending
K enneth A dams, he did prov ide the police w ith both w eapons used in the crime. C handler stated
that the D efendant w as initially paid $500 for recov ery of the w eapons, with an additional $500 due
on receipt, w hich w as nev er paid. C handler reported that the Def endant was paid an additional $200
for recovery of w eapons taken in an unrelated case; how ev er, the D efendant subsequently
relinquished the $200 when “[t]hat fell through.”

        C handler maintained that the D efendant w as not a suspect for the crime at the time he
provided the police w ith the guns. He stated that the guns w ere recov ered on O ctober 29, 1997 and
that A dams w as arrested and charged w ith the crime during the first or second week of N ov ember
1997. A fter A dams’ arrest, the police targeted the D efendant and F rank Sm ith, Jr., as suspects based


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on information provided by A dams. C handler reported that A dams supplied the police w ith a motel
receipt for a room registered to the D efendant on the day of the robbery.

       C handler also introduced the follow ing w ritten statement f rom the D efendant w hich w as
taken by police after the Def endant’s arrest:
               K enny A dams came to m e talking about being broke, homeless, and I told
       him I was in the same shape. W e came uptow n, m et F rank Sm ith, Jr. On the w ay
       uptow n K enny had talked about robbing the beauty shop on 51 at S pring. Told him
       it w asn’t w orth it.
               I parked th e v an upt ow n on N orth M ain, an d I w ent into the club to ask
       C harlie E d for some cigarette money. F rank came running in and told me to come
       on, and I got in the van and w e picked up K enny running dow n the street. He said,
       ‘I done it’ and pulled out a big gun and some cash.
               A ll I thought about w as getting high. W e w ent to M emphis to a motel and
       smoked up the m oney.

C handler explained that the D efendant m eant that he, A dams, and S mith had used money from the
robbery to buy crack cocaine. C handler also stated that the v an w hich the Def endant mentioned in
his statement w as ow ned by another party but had been driv en by the D efendant f or about three years
prior to the crim e. I n a dd it io n, he rep ort ed th at at th e t im e o f th e crim e, t he D ef en da nt ’ s d riv er’ s
license had been revoked.

         T erry R ials, manager of a M emphis area C omf ort Inn, introduced into evidence a copy of the
“check-in” for one of the rooms at his m otel. Th e room w as registered to the D efendant. A ccording
to the receipt, the Defendant checked into the room on O ctober 22, 1997 and checked out on O ctober
23, 1997. H e paid for the room in cash.

         K enneth A dams, w ho w as incarcerated at the time of t rial for the aggrav ated robbery and
theft ov er $1,000 of the C orner L iquor S tore, w as questioned about a statement he made to police
concerning the events of O ctober 22, 1997. A t trial, he maintained that the statement he had
previously giv en to police w as truthf ul. H e v erified that he told Investig ator C handler, “[t]he night
I robbed the liquor store, [the D efendant] sent Frank [S mith, Jr.,] to see if they had a camera, and
F rank came back and said no.” A dams recalled that he had provided the same testimony at his guilty
plea hearin g. H e claimed that the D efendant knew about the robbery bef ore it happened and that he,
S mith, and the D efendant all w orked together to rob the store. H e claime d that the three of them
decided to rob the store and sat together in the v an before the crime to discuss what w ould happen.
In addition, A dams m aintained that he, S mith, and the Def endant checked into a C omf ort Inn in
M emphis follow ing the crime, w here they “smoked . . . dope” which had been bought w ith proceeds
of the crime.

         F rank S mith, Jr., was called to testify for the defense. A fter being adv ised of his rights, he
opted to inv oke his Fif th A mendm ent priv ilege in response to questions concerning the D efendant’s
inv olv ement in the robbery. H ow ev er, after continued questioning, he admit ted that he remembered


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a telephone conv ersation with counsel f or the Def endant during w hich he stated that he and the
D efendant did not participate in p la nn in g the robbery. W hen asked whether this was true, he
responded, “can’t no g rown m an put another grown m an up to do nothing. . . . He do it on hi s ow n,”
and then invoked his F ifth A mendm ent priv ilege. O n cross-exam ination, Sm ith admitted that he had
been prev iously conv icted of tw o separate counts of theft ov er $500.

         T he D efendant testified on his ow n behalf and denied involv ement in planning or assisting
in the robbery. He described the events of O ctober 22, 1997 as follows: O n the night before the
robbery, A dams contacted him , look ing fo r a place to st ay . H e allow ed A dams to spend the night
in his v an, and the next m orning they drove to M emphis to look for jobs together. A dams found a
job that day, and on the way home to C ov ington, A dams beg an to tell the Def endant “he needed a
ride to get to that job, and how broke he w as and how bad he w as doing.”

         A fter their conversation, the Def endant decided that he needed to borrow some “cigarettes
mo ney ,” an d h e p roc ee de d t o a ba r in C ov in g to n, w he re one of his friends worked, to borrow the
money . A dams noticed a beauty salon on the w ay and told the D efendant that he was g oing to rob
it. T he D efendant responded, “K enny, m an, it ain’t w orth it.”

         W hen they arrived in C ov ington, they encountered Sm ith, who approached the v an on foot.
T he D efendant parked the v an and got out, leaving A dam s ins ide t he v an. H e told S mith that A dams
w as co ns id eri ng robbing the beauty salon and that they needed to “get rid” of A dams. T he
D efendant w ent into the bar w here his friend worked and remained there for thirty to forty m inutes.
S mith then entered the bar and said, “C ome on . . . . L et’s go, m an. . . . K enny done got out the v an
and he gone up tow ard the liquor store.” T hey lef t the bar and got into the v an. A s they drov e
tow ard the liquor store, they encountered A dams, w ho w as running dow n the street. A dams got into
the v an, an d the D ef enda nt th en sa w the s tole n cas h and a g un.

        A fter A dams entered the v an, the three men drove to M emphis together. The D efendant
registered under his name at the C omf ort Inn. He, S mith, and A dams used cocaine in the m otel
room. T he D efendant admitted that he knew the cocaine had been bought w ith money from the
robbery.

        O n cross-exam ination, the D efendant testified that S mith w as driving his v an at the time of
the crime because the D efendant’s driver’s license had been rev oked. H e also admitted that he had
been previously conv icted of agg ravated burglary and tw ice of the sale of cocaine. H e explained that
he w as “addict[ed]” to drugs. He denied that he aided A dams in leav ing the scene of the crime.
W hen questioned about his decision to prov ide the police with g uns from the crime, he explained,
“I knew that I had done w rong . . . and I knew that this w ould come up.” He said that at the time he
contacted the police, he thought that he would be called as a S tate w itness against A dams and that
he w ould be of fe red a pl ea ag reem ent i n ex chan ge fo r his te stim ony .




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                             I. D E F E N DA N T ’S S TA T E M E N T T O PO L IC E

         T he D efendant first argues that law enforcement officers induced him to inv oluntarily
incriminate himself by off ering him $1,000 to recov er the w eapons inv olv ed in this crim e. H e
contends that the officers knew that he w as a “crack addict” and that he was “unable to resist the
temptation of being paid $1,000.00 to retrieve incriminating ev idence.” In his brief, he states,
“O ff ering a crack addict $1,000.00 to incriminate himself amounts to phy sical and psycholog ical
coercion making the resulting production of ev idence and statement inv olun tary and i nadm issi ble.”
T he D efendant insists that the actions of law enforcement officers v iolated his Fif th and Fourteenth
A mendm ent rights and that the statement he m ade to police, which w as later introduced at trial, w as
inv oluntary and therefore inadmissible. He thus contends that the trial court erred by deny ing his
motion for new trial, in w hich he asserted this issue as a ground.

         T he D efendant approached police shortly af ter the crime in question, w hich occurred on
O ctober 22, 1997, and offered to prov ide them w ith w eapons from the crime in ex change f or money.
O n O ct ob er 2 9, 19 97 , be f ore he w as targeted as a suspect in the crime, the D efendant deliv ered the
handguns to police. A fter the police arrested K enneth A dams in early N ov ember, the police then
arrested the D efendant. H e w as advised of his M iranda rights and then made the statement at issue
on N ov em ber 19, 1 997.

           “[I]n order for a confession to be admissible, it must be ‘free and voluntary; that is, must not
be extracted by any sort of threats or v iolence, nor obtained by any direct or implied promises,
how ev er slig ht, no r by the e x ertion of any im proper in fl uenc e . . . .’” S tate v . Sm ith, 933 S.W .2d 450,
455 (T enn. 1996) (quoting B ram v . U nited S tates, 168 U .S. 532 (1897)). “It is the duty of the trial
j ud g e to determine the v oluntariness and the admissibility of a def endant's pre-trial statement.” S tate
v . B urns, 979 S .W .2d 276, 289 (T enn. C rim. A pp. 1998). The trial court's determination that a
confession w as giv en knowing ly and v oluntarily is conclusiv e unless the ev idence preponderates
ag ains t the trial c ourt's ruling . Id.

        A pparently, the D efendant argues that his statem ent to police w as not v oluntary because of
his addiction to drugs. The f act that he may hav e been motiv ated to receive m oney f rom police to
buy drugs does not render his subsequent statement inv oluntary. R ather, he made an of fer to police
to exchang e money for weapons, and the police took him up on his off er. T he D efendant w as later
arrested in connection w ith this crime and informed of his rights. He then opted to make a statement
to police concerning his inv olv ement in the crime. W e find no ev idence of coercion of any kind in
the record before us. W e conclude that the Def endant’s statement to police w as v oluntary and
therefore that it was properly adm itted at trial. This issue has no merit.

                                 II. S U F F IC I EN C Y O F T H E E V I D E N C E

        T he D efendant next argues that the evidence presented at trial w as insufficient to support his
conv iction. H e states, “The only ev idence tending to connect the Defendant . . . to the robbery w as
the uncorroborated testimony of his C o-D efendant, K enny A dams.” H e contends that A dams’


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testimony w as not only uncorroborated, but w as also unreliable and lacking in credibility. H e argues
that the trial court erred by ov erruling his motion for new trial “since the verdict is against the weight
of the ev idence and w as based upon the uncorroborated testimony of an accom plice.”

          T ennessee R ule of A ppellate Procedure 13(e) prescribes that “[f]indings of g uilt in criminal
actions w hether by the trial court or jury shall be set aside if the evidence is insuff icient to support
the findings by the trier of fact of gu ilt b ey ond a reas onabl e doub t.” T enn. R . A pp. P . 13(e). In
addition, because conviction by a trier of fact destroys the presumption of innocence and imposes
a presumption of g uilt, a convicted criminal defendant bears the burden of show ing that the ev idence
w as insu ff icie nt. M cB ee v . State , 372 S .W .2d 173, 176 (T enn. 1963); see also S tate v. E v ans, 838
S .W .2d 185, 191 (T enn. 1992) (citing S tate v . G race, 493 S.W .2d 474, 476 (T enn. 1976), and S tate
v . B row n, 551 S.W .2d 329, 331 (T enn. 1977)); S tate v. T uggle , 639 S.W .2d 913, 914 (T enn. 1982);
H olt v . State , 357 S.W .2d 57, 61 (T enn. 1962).

         In its review of the ev idence, an appellate court must aff ord the S tate “the strongest legitim ate
v iew of the e v idence as w ell as all reasonable and legitimate inf erences that may be draw n
theref rom.” T uggle , 639 S.W .2d at 914 (citing S tate v . C abbage, 571 S.W .2d 832, 835 (T enn.
1978)). T he court may not “re-w eigh or re-evaluate the e v iden ce” i n the record bel ow . E v ans, 838
S .W .2d a t 1 91 (c it in g C a bb ag e, 571 S.W .2d at 836). L ikew ise, should the rev iew ing court find
particular conflicts in the trial testimony , the court must resolv e them in f av or of the jury v erdict or
trial c ourt ju dg me nt. T uggle , 639 S.W .2d at 914.

        In ad di ti on , ou r supreme court has held “that in Tennessee a conv iction may not be based
upon the uncorroborated testimony of an accom plice.” S tate v . Big bee, 885 S.W .2d 797, 803 (T enn.
1994). T he court has explained the extent to w hich accomplice testim ony must be corroborated as
follow s:
        [T ]here must be som e fact testif ied to, entirely ind ependent of the accom plice's
        testim ony, w hich, taken by itself , leads to the inference, not only that a crime has
        been comm itted, but also that the defendant is implicated in it; and this independent
        corroborativ e testimony must also include some fact establishing the defendant's
        identity. T his corroborativ e ev idence may be direct or entirely circumstantial, and
        it need not be adequate, in and of itse lf , to support a conviction; it is suff icient to
        meet the requirements of the rule if it fairly and legitim ately tends to connect the
        defendant w ith the commission of the crime charged. It is not necessary that the
        corroboration extend to ev ery part of the accomplice's ev idence. The corroboration
        need not be conclusive, but it is suff icient if this ev idence, of itself, tends to connect
        the defendant w ith the commission of the off ense, although the ev idence is slight and
        entitled, when standing alone, to but little consideration.

Id. a t 8 03 -8 04 (q uo ti ng S tate v. G aylor, 862 S.W .2d 546, 552 (T enn. C rim. A pp. 1992)). The
supreme court has also indicated that the question of w hether a witness' testimony has been
suf fi cien tly corroborate d is a fa ctua l m atte r w hich shou ld be resolv ed by the j ury . Id. at 803.



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          C ontrary to the Def endant’s contentions, K enneth A dams’ testimony w as not the only
ev idence presented at trial linking the D efendant to the crime. T o corroborate A dams’ testimony ,
the S tate presented a motel receipt showing that the Def endant registered for a room at a motel on
the day of the crime, as A dams indicated, and paid for the room in cash. In addition, Of ficer
C handler testified that the D efendant supplied the police w ith both w eapons inv olv ed in the crime,
and the owner of the liquor store v erified that one of the guns provided by the D efendant w as the
same gun that had been stolen from his store. Finally , the Def endant himself admitted that he w as
w ith A dams before and after the robbery, that he knew A dams intended to com mit a robbery, that
A dams entered his van im mediately after the crime, that he drov e w ith A dams and S mith to a m otel
room in M emphis follow ing the crime, that he registered for the room under his own nam e, and that
the three men then smoked crack cocaine bought w ith the proceeds of the robbery. W e conclude that
this is clearly suf ficient ev idence from w hich the jury could hav e adduced the D efendant’s g uilt.
A l th ou g h the D efendant denied involv ement in the actual robbery, questions concerning credibility
of the w itnesses are entrusted to th e jury . S tate v. S heffield , 676 S.W .2d 542, 547 (T enn.1984).
H av ing heard all ev idence in this case, including the conflicting testimony of A dams and the
D efendant, the jury apparently rejected the D ef en da nt ’ s t es ti m on y . W e w il l n ot di st urb this finding
on appeal. W e therefore conclude that suff icient ev idence w as presented at trial to support the jury’ s
finding of guilt.

                                               III. S E N T E N C IN G

        F inally, the D efendant argues that he w as improperly sentenced. H e complains that the trial
court failed to apply appropriate mitig ating factors, and he requests a reduction of his sentence. T he
D efendant suggests that the follow ing mitig ating f actors should have been applied in his case: “(1)
the D efendant’s conduct neither caused nor threatened bodily injury; (2) the D efendant acted under
strong provocation of addictiv e drugs; (3) the D efendant played a m inor role in commission of the
off ense; (4) the D efendant w as suff ering from m ental or physical condition that signi ficantly reduced
his culpability for the off ense; (5) the D efendant assisted the authorities in uncov ering off enses
comm itted by other persons or in detecting or apprehending other persons; (6) the D efendant assisted
authorities i n l oc at in g or recov ering property inv olv ed in the crime; (7) the D efendant lacked a
sustained intent to v iolate the law motiv ed by criminal conduct; and (8) the D efendant acted under
duress or domination of another person.” S ee generally T enn. C ode A nn. § 40-35-113.

        W hen an accused challenges the length, range, or manner of serv ice of a s en te nc e, t hi s C ou rt
has a duty to conduct a de nov o review of the sentence w ith a presumption that the determinations
made by the trial court are correct. T enn. C ode A nn. § 40-35-401(d). This presumption is
“conditioned upon the affirmativ e showing in the record that the trial court considered the sentencing
principles and all relev ant facts and circumstances.” S tate v. A shby , 823 S.W .2d 166, 169 (T enn.
1991).

          W hen conducting a de nov o review of a sentence, this C ourt must consider: (a) the ev idence,
if any , received at the trial and sentencing hearing; (b) the presentence report; (c) the principles of
sentencing and arguments as to sentencing al ternativ es; (d) the nature and characteristics of the


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criminal conduct inv olv ed; (e) any statutory m itigating or enhancement factors; (f) any statem ent
made by the def endant regarding sentencing; and (g) the potential or lack of potential for
rehabilitation or treatm ent. S tate v . Tho mas , 755 S.W .2d 838, 844 (T enn. C rim. A pp. 1988); T enn.
C ode A nn. §§ 40-35-102, -103, -210.

         If our rev iew reflects that the trial court follow ed the statutory sentencing procedure, that the
court imposed a law ful sentence after having g iv en due consideration and proper weight to the
factors an d p rin ci pl es se t o ut un de r th e s en te nc in g la w , an d t ha t t he tri al co urt ’ s f in di ng s o f f ac t a re
adequately supported by the record, then we m ay not m odify the sentence ev en if w e w ould hav e
pref erred a dif fe rent resul t. S tate v . Fletcher, 805 S.W .2d 785, 789 (T enn. C rim. A pp. 1991).

            A t the sentencing hearing, the trial judge considered the sentencing principles and relev ant
circumstances. W e therefore conclude that our review is de nov o w ith a presumption of correctness.
In s en te nc in g the D efendant, the trial judge considered the Def endant’s prior criminal record and
found him to be a mult iple offe nder. S ee T enn. C ode A nn. § 40-35-106. He applied one
enhancement factor, that the “defendant has a prev ious history of criminal conv ictions or criminal
behavior in addition to those necessary to establish the appropriate range,” id. § 40-35-114(1), and
no mitig ating factors. He ordered that the Def endant’s tw o present convictions run concurrently.
In addition, because the Defendant comm itted a separate offense w hile out on bond for the offense
in this case, the trial judge ordered that the sentences in this case run consecutive to the sentence
imposed for the conv iction the D efendant receiv ed w hile out on bond. T he trial judge further found
that “the severity of the sentence is reasonably related to the sev erity of the off enses comm itted and
that it serves to protect the public from further criminal acts by a defen dant who had resorted to
agg ravated criminal conduct in this aggrav ated robbery and has a history of criminal conduct going
back to conv ictions in this court in 1991.” F inally , the trial judge noted that the D efendant w as
i ne li g ib le f or a lt ern at iv e s en te nc in g .

          T he D efendant’ s presentence report rev eals that the Def endant has a lengthy prior record,
w hich includes convictions for such off enses as aggrav ated burglary, theft of property, aggrav ated
assault, and grand larceny, in addition to a number of drug-related off enses. Furthermore, at the
sentencing hearing, the D efendant admitted that he had been convicted of reckless endangerment
inv olv ing a deadly w eapon w hile on bond for the off ense in this case. W e are satisfied that the
D efendant’s prior record and apparent lack of amenability to rehabilitation justifies imposition of
an ef fe ctiv e sev ente en-y ear sent ence in th is ca se. H av ing carefully considered the record in this case,
w e further find that the trial court did not err by f ailing to apply m itigating factors suggested by the
D efendant and conclude that the sentence imp osed in this case is appropriate.

          T he judgment of the trial court is accordingly aff irmed.




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