        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs November 10, 2009

                   STATE OF TENNESSEE v. JOHNNY TATE

              Direct Appeal from the Criminal Court for Shelby County
                        No. 07-08398    Lee V. Coffee, Judge




                  No. W2008-02503-CCA-R3-CD - Filed May 7, 2010


The defendant, Johnny Tate, was convicted by a Shelby County jury of two counts of
especially aggravated kidnapping, Class A felonies; two counts of aggravated robbery, Class
B felonies; and aggravated burglary, a Class C felony. He was subsequently sentenced to two
sentences of life without parole, to two sentences of twelve years, and to a sentence of six
years for the respective convictions. Further, the trial court ordered that the two sentences
of life be served consecutively to each other, with the other sentences to be served
concurrently. On appeal, the defendant raises the single issue of sufficiency of the evidence.
Specifically, he contends that the evidence presented is insufficient to establish his identity
as the perpetrator of the crimes. Following review of the record, we affirm the judgments
of conviction.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the court, in which R OBERT W.
W EDEMEYER and J.C. M CL IN, JJ., joined.

Ruchee J. Patel, Memphis, Tennessee, for the appellant, Johnny Tate.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; William L. Gibbons, District Attorney General; and David Pritchard, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                    Factual Background

       At approximately 7:45 p.m., the seventy-five-year-old victim, Larry Hassell, was in
his front yard watering the lawn. He observed the defendant and a “well-dressed” black
woman approach him. At first, Mr. Hassell was not alarmed, but he then observed that the
defendant had a gun with a short barrel, resembling a .38, in his hand. The defendant
proceeded to shove Mr. Hassell onto the concrete and told him to “get you M.F. into that
carport,” while holding the gun to his head. The defendant then demanded $5000, saying
that he was a “dope head.” The defendant then pulled Mr. Hassell up and shoved him back
down to the ground “a couple of times.” The defendant then asked who else was in the
home, and Mr. Hassell informed him that his wife was upstairs. The defendant, followed by
his accomplice who was later identified as Brenda Robinson, forced Mr. Hassell into the
home at gunpoint.

       The group went into an upstairs television room, where Mrs. Hassell was sitting. The
defendant, upon entering, pointed the gun at her. He then demanded Mr. Hassell’s wallet and
pointed the gun at his head. While the defendant left the room to retrieve the wallet,
Robinson kept the gun pointed at Mr. Hassell’s head. Upon the defendant’s return, he
demanded Mr. Hassell’s ATM number and removed two credit cards. When Mr. Hassell
explained that he did not have an ATM number, the defendant prodded him with the gun and
said, “Give me that number you M.F. or I’m going to blow your brains out.”

        The defendant found electrical tape, telephone cords, and ropes throughout the house,
and he then forced the Hassells to lie on their stomachs on the floor and proceeded to “hog
tie” them. The defendant then held the gun to Mr. Hassell’s head again and demanded to
know where the safe was located. The defendant and Robinson then took turns ransacking
the home, with the other remaining in the room with the gun pointed at the Hassells. The
defendant repeatedly informed the Hassells that he would “blow their brains out” if they
looked up. Both Mr. and Mrs. Hassell were in pain and were having a difficult time
breathing.

        At approximately 9:30 p.m., the Hassells heard the door to their residence slam. Mrs.
Hassell was then able to free herself from her bindings and then free her husband. Mr.
Hassell grabbed his gun to pursue the defendant and Robinson, but they had already fled the
scene in the Hassell’s two Cadillac sports utility vehicles. Mr. Hassell then went to his
neighbor’s home and contacted the police and OnStar. The police arrived approximately five
minutes later, and thirty minutes later the Hassells were informed that their cars had both
been found at a residence in West Memphis. The Hassells also discovered that the defendant
and Robinson had taken sets of dishes, a 1891 encased Whitney gun, china, silverware,
televisions, a microwave, clothes, suitcases, steak knives, flashlight batteries, a 1921 silver
dollar, and many other items. The estimated value of the items stolen was $100,000. Mr.
Hassell provided police with a general description of the assailants, but he was later unable
to provide a positive identification in a photo line-up.



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       The two vehicles were tracked by OnStar to 805 Walnut Street, the residence of the
defendant’s mother. Upon arriving, investigators discovered that the stolen items were still
located in the cars or scattered in the front yard. Additionally, inside one of the vehicles was
a black purse which contained identification for Mr. Hassell and Robinson. The defendant’s
mother consented to a search of the residence, but no items were found inside. Investigators
ran a background check on Robinson and discovered that the defendant was her main
associate.

       In the days following the robbery, Jonesboro, Arkansas police officers arrested the
defendant and Robinson on separate charges. The pair was arrested in front of a local
Kroger. When arrested, the authorities discovered a 1921 silver dollar, later identified as
belonging to the Hassells, in the defendant’s pocket. Additionally, the weapon used in the
robbery of the Hassells was found lying on the ground between the defendant and the vehicle
from which he was taken during the arrest. Authorities discovered that the defendant and
Robinson had been staying at a local motel and obtained a search warrant. In the room,
police found a pawn ticket for four sets of gold earrings, later identified as belonging to Mrs.
Hassell. Police also learned that the defendant’s brother was renting the room beside the one
rented by the defendant and Robinson. During their search, police noticed a Sears truck pull
into the parking, stop and look, and then exit. Police stopped the truck and found that the
defendant’s brother was driving. After being questioned, he was released.

       Memphis police subsequently learned of the arrests of the defendant and Robinson
and proceeded to question them. After being read his rights, the defendant gave a detailed
statement to police admitting his involvement but stating that he had forced Robinson to
participate. He indicated that he saw Mr. Hassell on the front lawn, approached him with a
weapon, and proceeded to force him into the home where he and Robinson stolen numerous
items, loaded them into the Hassell’s vehicles, and then drove to a house belonging to the
defendant’s mother. He further indicated that shortly after their arrival, he heard police
approaching and left the area on foot, leaving behind the vehicles and the stolen items.

         Based upon the foregoing, the defendant was indicted by a Shelby County grand jury
for two counts of especially aggravated kidnapping, two counts of aggravated robbery, and
one count of aggravated burglary. Following a jury trial, he was convicted as charged. After
a subsequent sentencing hearing, the defendant received two life sentences, two twelve-year
sentences, and one six-year sentence for the respective convictions. The court further
ordered that the two life sentences be served consecutively to each other but that the
remaining sentences be served concurrently. Following the denial of his motion for new
trial, the defendant timely appealed to this court.

                                           Analysis

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       On appeal, the defendant raises the single issue of sufficiency of the evidence.
Specifically, he contends that the evidence presented was not sufficient “to exclude all other
reasonable theories except that of [the defendant’s] guilt.” He relies on the following: Mr.
Hassell was unable to provide a positive identification; there was no evidence that the
defendant resided at 805 Walnut Street; his statement to police contained inaccuracies and
was not corroborated; and he had no knowledge of where the only direct piece of evidence,
the 1921 silver dollar, came from. He further asserts that all the other evidence tended to
support the guilt of his brother, such as that his brother used his mother’s address, his
brother’s identification was used on the pawn ticket found, and he and his brother physically
resembled each other.

         In considering the issue of sufficiency of the evidence, we apply the rule that where
the sufficiency of the evidence is challenged, the relevant question for the reviewing court
is “whether, after viewing the evidence in the light most favorable to the [State], any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Tenn. R. App. P. 13(e). Moreover,
the State is entitled to the strongest legitimate view of the evidence and all reasonable
inferences which may be drawn therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992).
All questions involving the credibility of witnesses, the weight and value to be given the
evidence, and all factual issues are resolved by the trier of fact. State v. Pappas, 754 S.W.2d
620, 623 (Tenn. Crim. App. 1987). This court will not reweigh or reevaluate the evidence
presented. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

        “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of
the witnesses for the State and resolves all conflicts in favor of the theory of the State.” State
v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). A jury conviction removes the presumption
of innocence with which a defendant is initially cloaked and replaces it with one of guilt so
that, on appeal, a convicted defendant has the burden of demonstrating that the evidence is
insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). These rules are applicable
to findings of guilt predicated upon direct evidence, circumstantial evidence, or a
combination of both. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).

       Although a conviction may be based entirely upon circumstantial evidence, Duchac
v. State, 505 S.W.2d 237, 241 (Tenn. 1974), the facts in such cases must be “so clearly
interwoven and connected that the finger of guilt is pointed unerringly at the [d]efendant and
the [d]efendant alone.” State v. Black, 815 S.W.2d 166, 175 (Tenn. 1991) (citing State v.
Duncan, 698 S.W.2d 63 (Tenn. 1985)). However, as in the case of direct evidence, the
weight to be given circumstantial evidence, “the inferences to be drawn from such evidence,
and the extent to which the circumstances are consistent with guilt and inconsistent with



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innocence, are questions primarily for the jury.” Marable v. State, 203 Tenn. 440, 313
S.W.2d 451, 457 (Tenn. 1958) (citations omitted).

        As noted, the defendant was convicted of especially aggravated kidnapping,
aggravated robbery, and aggravated burglary. Especially aggravated kidnapping, as relevant
here, is false imprisonment, as defined in Tennessee Code Annotated section 39-13-302: (1)
Accomplished 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[.] . . . T.C.A. § 39-13-305(a)(1)
(2006). A person commits the offense of false imprisonment who knowingly removes or
confines another unlawfully so as to interfere substantially with the other’s liberty. T.C.A.
§ 39-13-302(a) (2006). Additionally, aggravated robbery, as charged in this case, is robbery
as defined in Tennessee Code Annotated section 39-13-401: (1) Accomplished 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[.] . . . T.C.A. § 39-13-402(1) (2006). Robbery is the intentional
or knowing theft of property from the person of another by violence or putting the person in
fear. T.C.A. § 39-13-401(a) (2006). Finally, aggravated burglary is burglary of a habitation
as defined in sections 39-14-401 and 39-14-402. T.C.A. § 39-14-403(a) (2006). As relevant
here, a person commits burglary who, without the effective consent of the property owner:
(1) Enters a building and commits or attempts to commit a felony, theft or assault[.] . . .
T.C.A. § 39-14-402(a)(3). Under Tennessee Code Annotated section 39-14-401, habitation,
as utilized in this case: (A) [m]eans any structure, including buildings, module units, mobile
homes, trailers, and tents, which is designed or adapted for the overnight accommodation of
person[.] . . . T.C.A. § 39-14-401(A) (2006). As we read the defendant’s argument, he does
not contest whether the elements of each offense were established by the proof. Rather, he
asserts only that the proof failed to establish that he was the perpetrator who committed the
offenses. We agree with the defendant that the proof more than sufficiently established all
the elements of the requisite crimes.

         We agree with the defendant that the identity of the perpetrator is an essential element
of any crime. State v. Thompson, 519 S.W.2d 789, 793 (Tenn. 1975). However, like any
other requisite element, sufficient proof of the perpetrator’s identity may be established
through circumstantial evidence alone. Reid, 91 S.W.3d at 277. As with any other
circumstantial evidence, the facts must be “so clearly interwoven and connected that the
finger of guilt is pointed unerringly at the [d]efendant and the [d]efendant alone.” Id. Again,
it is the jury that decides the appropriate weight to be given circumstantial evidence and any
inferences that may be drawn therefrom. Marable, 313 S.W.2d at 457.

       Each of the assertions made by the defendant was put before the jury and argued as
part of his defense at trial. Based upon their verdict, the jury weighed that evidence and
found that it was not credible. On appeal, the defendant is essentially asking us to reweigh

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the jury’s determination, which this court will not do. Rather, we look to the evidence
presented and determine if a rational trier of fact could have reached the conclusion that the
defendant was guilty of the crimes as charged. In this case, the evidence presented was more
than adequate to give the jury sufficient reason to conclude that the defendant did, in fact,
commit these crimes. First and foremost, the defendant admitted to police that he was the
perpetrator and gave details which would be known only to the one who had committed the
crime. We further disagree with the defendant that the statement, though containing some
inaccuracies, was not corroborated. Further, the vehicles containing several of the stolen
items were found parked in front of the defendant’s mother’s home. Additionally, Brenda
Robinson’s identification was found inside one of the vehicles, and Robinson was a known
close associate of the defendant. Moreover, when the defendant was arrested in Arkansas,
he was in possession of the 1921 silver dollar stolen from the Hassells, as well as the gun
used in the commission of the offenses. Finally, a pawn ticket for four pairs of Mrs.
Hassell’s earrings was found in the defendant and Robinson’s motel room. Based upon these
facts, a rational trier of fact could reasonably conclude that the defendant committed the
crimes.

                                      CONCLUSION

       Based upon the foregoing, the judgments of conviction are affirmed.




                                                   ___________________________________
                                                   JOHN EVERETT WILLIAMS, JUDGE




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