        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs January 5, 2016

                  STATE OF TENNESSEE v. TRAVIS SEIBER

                  Appeal from the Criminal Court for Shelby County
                       No. 1300594    W. Mark Ward, Judge


              No. W2015-00221-CCA-R3-CD - Filed February 23, 2016


Aggrieved of his Shelby County Criminal Court jury convictions of three counts of
aggravated robbery, the defendant, Travis Seiber, appeals, arguing that he was deprived
of the right to a trial by a fair and impartial jury, that the trial court erred by permitting
the State to use as a demonstrative aid a gun that had not been entered into evidence, and
that the evidence was insufficient to support his convictions. Discerning no error, we
affirm.

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

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

Mitchell Wood, Memphis, Tennessee, for the appellant, Travis Seiber.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Jose Leon, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

               A Shelby County Criminal Court jury convicted the defendant of three
counts of aggravated robbery for his role in the August 24, 2012 taking of money and
cellular telephones from Jose Escobar, Juan Camacho, and Ofelia Romero at gunpoint.

              At trial, Mr. Escobar testified that he and the other victims worked cleaning
restaurants from 10:00 p.m. to 2:00 a.m. each evening. Mr. Escobar always parked his
car at the Bella Vista Apartment complex, where Mr. Camacho and Ms. Romero lived
together, and the three would ride to work together. The victims returned from work
shortly before 3:00 a.m. on August 24, 2012. As they stood in the parking lot, they were
approached by a man holding a firearm. A second man using a shirt to cover his face
also approached from a nearby breezeway. The man “pointed the gun on [Mr.
Camacho‟s] head” and took cellular telephones and money from Mr. Camacho and Ms.
Romero. The man with his face covered took Mr. Escobar‟s wallet, cellular telephone,
and $77. The perpetrators ran away through the parking lot.

              Mr. Escobar identified the defendant as the perpetrator who pointed the
black handgun at Mr. Camacho, noting that the parking lot “was very illuminated. You
could see very well” and that the defendant had a distinctive scar on his face as well as
long dreadlocks in his hair. He also noted that he had previously seen the defendant in
the parking lot of the Bella Vista Apartments. Mr. Escobar later identified the defendant
from a photographic array.

              Mr. Escobar said that he quit his job working for Mr. Camacho one week
after the robbery because he was afraid. Mr. Camacho and Ms. Romero, he said, moved
to New Orleans shortly after the robbery because they were afraid.

              Memphis Police Department (“MPD”) Officer Joshua Barnes, who
responded to the call reporting the robbery, testified that he prepared a report based on
the information he “could comprehend from [Mr. Camacho‟s] very broken English and
[Officer Barnes‟s] very broken Spanish.” He gleaned that the victims had been robbed at
gunpoint.

              MPD Officer Fausto Frias testified that he was dispatched to take
statements from the victims a few days after the robbery because neither Mr. Escobar nor
Ms. Romero spoke any English and Mr. Camacho‟s English was poor. Both Mr. Escobar
and Mr. Camacho identified the defendant as the armed assailant. Neither man could
identify the assailant whose face remained covered during the robbery, and Ms. Romero
made no identifications at all. Officer Frias also interviewed the defendant following his
arrest. He recalled that the defendant insisted that he had not committed the offenses but
did not provide any alibi information during his interview.

              Tammy McKinley testified on behalf of the defendant that the defendant
came to visit her at the Peppertree apartment belonging to Ms. McKinley‟s sister at
around 8:00 a.m. on the morning of August 24, 2012. She said that she recalled the date
because she was preparing for her grandson‟s birthday party. She said that the defendant
did not leave the apartment until he went with her to the party on the evening of August
25, 2012.

            Iesha Lacy, Ms. McKinley‟s daughter, testified that she was living in the
Peppertree Apartments in August 2012, when the defendant came there to visit Ms.
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McKinley. She said that the defendant arrived on the evening of August 23, 2012, and
stayed until August 25, 2012, when they left to attend her son‟s birthday party.

              Based on this proof, the jury convicted the defendant as charged of three
counts of aggravated robbery. Following a sentencing hearing, the trial court imposed
three sentences of 10 years each to be served at 85 percent by operation of law for each
conviction and ordered partially consecutive sentencing for a total effective sentence of
20 years at 85 percent.

               In this timely appeal, the defendant asserts that he was deprived of the right
to a trial by a fair and impartial jury, that the trial court erred by permitting the State to
use as a demonstrative aid an imitation gun that had not been entered into evidence, and
that the evidence was insufficient to support his convictions. We consider each claim in
turn.

                                         I. Juror Bias

              The defendant asserts that he was deprived of the right to trial by a fair and
impartial jury because one of the jurors knew the defendant and his family prior to trial
and failed to disclose his knowledge during voir dire. The State contends that the
defendant has failed to prove any bias on the part of any juror.

               The criminal accused possesses the right to trial by an impartial jury as
guaranteed by the state and federal constitutions. See U.S. Const. amend. VI (“In all
criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an
impartial jury of the State and district wherein the crime shall have been committed . . .
.”); Tenn. Const. art. I, § 9 (“[I]n all criminal prosecutions, the accused hath the right to . .
. a speedy public trial, by an impartial jury of the county in which the crime shall have
been committed . . . .”). To this end, “[a] court may discharge from service a . . . petit
juror . . . who is disqualified from such service, or for any other reasonable or proper
cause, to be judged by the court,” including “[t]hat a state of mind exists on the juror‟s
part that will prevent the juror from acting impartially.” T.C.A. § 22-1-105. Generally,
juror disqualifications are based upon one of two theories: (1) propter defectum (“On
account of or for some defect.” Black’s Law Dictionary 1385 (Rev. 4th Ed. 1968)) or (2)
propter affectum (“For or on account of some affection or prejudice.” Id.). Because the
defendant complains of bias or partiality against the defendant, his claim is one of
propter affectum. See State v. Furlough, 797 S.W.2d 631, 652 (Tenn. Crim. App. 1990).

              At the hearing on the defendant‟s motion for new trial, the defendant‟s
father and brother, James Seiber III and James Seiber IV, testified that on the last day of
the defendant‟s trial juror Fred Marshall spoke to them in the men‟s restroom.
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                Mr. Seiber IV recalled that Juror Marshall told them good morning and
that, after he had washed his hands, Juror Marshall told them to have a good day. He said
that after the encounter, Mr. Seiber III said that he thought he recognized the juror. At
that point, Mr. Seiber IV said, that he “remembered that [he] knew” Juror Marshall.
After the trial, he “went and researched and found out who [the juror] was” because he
“did not know who Fred was at the beginning of this trial.” He said, “I didn‟t know him
or remember him at that point.” Mr. Seiber IV testified that he had dated Juror
Marshall‟s daughter “[p]robably about maybe about 20 years ago” when the two were in
high school and that the relationship ended when she discovered Mr. Seiber IV‟s
infidelity and slashed the tires on his car in retribution. Mr. Seiber IV said that Juror
Marshall had refused to pay for the replacement of the slashed tires and that he had
ordered Mr. Seiber IV to stay off of his property.

               During cross-examination, Mr. Seiber IV said that initially he was not sure
that Juror Marshall was the same man he had known previously because he “hadn‟t seen
him in over 20 years . . . . So his facial wasn‟t the same.” Mr. Seiber IV insisted,
however, that with the exception of his hairstyle, his own appearance was exactly the
same as it had been 20 years prior. He insisted that if he had remembered Juror Marshall,
he “would of said something at the beginning of the trial.” Mr. Seiber IV conceded that
Juror Marshall said nothing beyond “good morning” and “y‟all have a good day,” but he
insisted that Juror Marshall “engaged in the conversation to almost like I know you or
something like that.”

              Mr. Seiber III testified that he “[b]arely” recognized one of the jurors who
sat “on the end” in the jury box. He said, “I didn‟t know him. I thought I knew him but
after we went in the restroom it became clear to me that I knew this guy.” He said that he
remembered the juror because he had seen him in the grocery store on one occasion and
passing by in his car. Mr. Seiber III said that he was aware that Mr. Seiber IV “used to
date [the juror‟s] daughter. But I didn‟t know him that well. Her either.” During cross-
examination, he acknowledged, “I did not have a relationship with [Juror Marshall], sir. I
barely knew the man.”

               The court denied the defendant‟s motion for new trial, ruling with respect
to the juror bias issue as follows:

             As far as the efforts here to impeach this verdict, . . . I find
             that what we basically have here is that there‟s one juror,
             Juror Number 1, that 20-something years ago lived three or
             four houses down from the defendant‟s family. And his
             brother some 20-something years ago dated [the juror‟s
                                           -4-
             daughter] for a little while and . . . they had a conflict.

                     Of course this is 20-something years ago. And your
             first witness here today said I didn‟t recognize him. I didn‟t
             remember him. And the same way with the defendant‟s
             father, James Seiber III. He didn‟t remember him until they
             spoke in the bathroom. So I think it‟s probably just as likely
             that the juror didn‟t remember them either. I certainly don‟t
             have any proof here today that the juror remembered them.
             And but be that as it may. And the other thing I want to say is
             this has been presented to me from the perspective that this
             juror knowing the defendant‟s brother and the defendant‟s
             father. It hasn‟t been presented to me from the perspective of
             knowing the defendant who is on trial. The defendant sits
             here and remains mute, silent. He sat through the whole trial.
             Am I to infer that the defendant didn‟t remember him either?
             Or he did remember him? I don‟t know. He hasn‟t testified
             here today. But this is about the defendant, not the
             defendant‟s brother or the defendant‟s family. So I don‟t
             have, Number 1, any evidence of any extraneous prejudice or
             any information or outside influence given to this jury. A few
             comments were made that were innocuous in the bathroom.
             It had nothing to do with this case.

                     Number 2, I have no evidence that this juror lied on
             voir dire or knowingly failed to disclose material information.
             It‟s just as likely that – well, I have absolutely no evidence
             that he knows the defendant, but it‟s just as likely that he
             didn‟t remember the brother or the father either. But I don‟t
             have any evidence. I don‟t have any evidence of any bias or
             partiality on the part of this juror. All of the jurors said that
             they could be impartial. I don‟t have anything to refute that.

                     I‟m willing to bet the transcript shows me asking the
             jurors if they knew the defendant. I don‟t have any evidence
             he did remember the defendant. So anyway I just don‟t think
             there‟s any reason to impeach the verdict under these
             circumstances.

              The defendant complains that the trial court should have granted him a new
trial because Mr. Seiber IV had dated Juror Marshall‟s daughter some 20 years prior to
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the trial, and the relationship had ended on bad terms. He claims entitlement to a new
trial on grounds that Juror Marshall intentionally failed to disclose this information
during voir dire and that Juror Marshall was prejudiced against him.

              The Supreme Court has observed that “[q]ualified jurors need not . . . be
totally ignorant of the facts and issues involved” in a trial. Murphy v. Florida, 421 U.S.
794, 799-800 (1975). Instead, “„[i]t is sufficient if the juror can lay aside his impression
or opinion and render a verdict based on the evidence presented in court.‟” Id. at 800.
The defendant must “demonstrate „the actual existence of such an opinion in the mind of
the juror as will raise the presumption of partiality.‟” Id.

                Here, the record does not clearly establish that Juror Marshall actually
knew and recognized the defendant, let alone that he had any prejudice against the
defendant. The defendant would have this court assume, based on the testimony of the
defendant‟s father and brother, that Juror Marshall recognized them, even though both
testified that they did not initially recognize Juror Marshall, that Juror Marshall knew that
Mr. Seiber III and Mr. Seiber IV were related to the defendant, that Juror Marshall
recalled Mr. Seiber IV‟s dating his daughter 20 years before the trial, and that Juror
Marshall decided to exact revenge for Mr. Seiber IV‟s 20-year-old slight against his
daughter by convincing the other jurors to convict the defendant of robbery based on this
extraneous information. To say that this is nothing more than rank speculation is an
understatement. No proof exists of “„the actual existence of such an opinion in the mind
of the juror as will raise the presumption of partiality.‟” Murphy, 421 U.S. at 800. In
consequence, the defendant is not entitled to relief on this issue.

                                  II. Demonstrative Aid

              The defendant next asserts that the trial court erred by permitting the State
to use a plastic handgun as a demonstrative aid during closing argument, arguing that
because no gun was recovered and Mr. Escobar could not describe the gun beyond its
being a “black handgun,” the plastic gun was not relevant. The State contends that
because the prosecutor only used the gun to demonstrate the distance from which Mr.
Escobar observed it during the robbery, it was relevant to the presentation of the State‟s
case.

              Following the presentation of the proof, the prosecutor indicated to the
court and to the defendant his intent to use a plastic handgun during his closing argument
to demonstrate for the jury the distance between Mr. Escobar and the defendant during
the offense to reiterate that Mr. Escobar was close enough to identify the defendant and
observe the gun used during the crime. The defendant objected, arguing that because no
gun had been recovered and Mr. Escobar could not describe the gun beyond its being a
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“black handgun,” the plastic handgun was not relevant. The trial court ruled that the
prosecutor would be permitted to use the plastic handgun as a demonstrative aid so long
as he made it clear to the jury that the gun was not the one involved in the robberies. Just
before the prosecutor began the demonstration, the trial court admonished the jury, “Just
for demonstration purposes we got a little rubber gun here. And this is not, no one is
trying to argue this was the gun involved and the thing is just for demonstration.”

               The decision whether to permit the use of demonstrative aids rests
generally within the discretion of the trial judge. See, e.g., State v. West, 767 S.W.2d
387, 402 (Tenn. 1989); State v. Delk, 692 S.W.2d 431 (Tenn. Crim. App. 1985).
Demonstrative aids may be used during the trial or during closing argument, when their
use is governed by the same general rules for the propriety of closing argument. Trial
courts have substantial discretionary authority in determining the propriety of final
argument but must be careful to restrict any improper argument. Sparks v. State, 563
S.W.2d 564, 569–70 (Tenn. Crim. App. 1978). Generally speaking, closing argument
“must be temperate, must be predicated on evidence introduced during the trial of the
case, and must be pertinent to the issues being tried.” State v. Sutton, 562 S.W.2d 820,
823 (Tenn. 1978). The State, in particular, “must refrain from argument designed to
inflame the jury and should restrict its commentary to matters in evidence or issues at
trial.” State v. Gann, 251 S.W.3d 446, 459-60 (Tenn. Crim. App. 2007). “To merit a
new trial, however, the argument must be so inflammatory or improper as to affect the
verdict.” Id. (citing Harrington v. State, 385 S.W.2d 758, 759 (1965)). In Judge v. State,
this court articulated the factors to be considered in making that determination:

              (1) The conduct complained of viewed in the context and in
              light of the facts and circumstances of the case[;]
              (2) [t]he curative measures undertaken by the court and the
              prosecution[;]
              (3) [t]he intent of the prosecutor in making the improper
              statements[;]
              (4) [t]he cumulative effect of the improper conduct and any
              other errors in the record [; and]
              (5) [t]he relative strength or weakness of the case.

Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976).

              Here, the prosecutor informed the court and the defendant prior to the
beginning of closing argument of his intent to use the plastic handgun as a demonstrative
aid. He allowed the court, the court officer, and defense counsel to examine the gun, and
the court heard the defendant‟s arguments against its use during closing argument.
Ultimately, the court concluded that the prosecutor would be permitted to use the gun to
                                            -7-
demonstrate the distance between the defendant and the victims during the offense. That
distance was critical to the State‟s case, which case hinged upon Mr. Escobar‟s
identification of the defendant as the perpetrator and his testimony that the defendant
used a gun. Mr. Escobar‟s ability to view the defendant and the gun was crucial to his
testimony. Additionally, the plastic gun was a “black handgun” as was described by Mr.
Escobar, and both the court and the prosecutor made it clear to the jury that the gun was
not the one used in the offense. Under these circumstances, we cannot say that the trial
court abused its discretion by permitting the prosecutor to use the plastic handgun as a
demonstrative aid.

                                      III. Sufficiency

              Finally, the defendant contends that the evidence was insufficient to
support his convictions of aggravated robbery, arguing that because neither Mr. Camacho
nor Ms. Romero testified at trial, there was no evidence that the defendant took their
property by fear.

              We review the defendant‟s claim of insufficient evidence mindful that our
standard of review is whether, after considering the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.
307, 319 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This
standard applies to findings of guilt based upon direct evidence, circumstantial evidence,
or a combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d
370, 379 (Tenn. 2011).

               When examining the sufficiency of the evidence, this court should neither
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.
Questions concerning the credibility of the witnesses, the weight and value of the
evidence, as well as all factual issues raised by the evidence are resolved by the trier of
fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must
afford the State the strongest legitimate view of the evidence contained in the record as
well as all reasonable and legitimate inferences which may be drawn from the evidence.
Id.

              As charged in this case, aggravated robbery is “robbery as defined in § 39-
13-401 . . . [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.” T.C.A. §
39-13-402(a)(1). “Robbery is the intentional or knowing theft of property from the
person of another by violence or putting the person in fear.” Id. § 39-13-401(a). “A
person commits theft of property if, with intent to deprive the owner of property, the
                                             -8-
person knowingly obtains or exercises control over the property without the owner‟s
effective consent.” Id. § 39-14-103(a). A deadly weapon is defined as “[a] firearm or
anything manifestly designed, made or adapted for the purpose of inflicting death or
serious bodily injury; or [a]nything that in the manner of its use or intended use is capable
of causing death or serious bodily injury.” Id. § 39-11-106(a)(5).

               As indicated, simple robbery, and aggravated robbery by extension, may be
accomplished by either violence or putting the victim in fear. See id. § 39-14-401(a); -
402(a). The evidence adduced at trial established that the defendant and another man
approached the victims in the parking lot of the Bella Vista Apartments shortly before
3:00 a.m. Mr. Escobar testified that the defendant, whom he was able to identify because
of the distinctive scar on his face and his unusual hairstyle, pointed a black gun at Mr.
Camacho before the defendant and another man, who kept his face covered, took money
and cellular telephones from the victims. Both Mr. Escobar and Mr. Camacho identified
the defendant as the gun wielding perpetrator from a photographic array. “[P]ointing a
deadly weapon at the victim constitutes „violence‟ as used in the offense of robbery
pursuant to Tenn[essee] Code Ann[otated] § 39-13-401.” State v. Allen, 69 S.W.3d 181,
185 (Tenn. 2002). Additionally, Mr. Escobar testified that he gave the perpetrators his
money and cellular telephone because he feared the defendant would shoot Mr. Camacho.
The other victims gave their property to the perpetrators at gunpoint, and their leaving
town shortly after the offenses circumstantially established that the taking was
accomplished by putting them in fear. Consequently, the evidence more than sufficiently
establishes the elements of aggravated robbery.

                                        Conclusion

              Based upon the foregoing, we affirm the judgments of the trial court.

                                                    _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




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