         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                  November 2, 2004 Session

                STATE OF TENNESSEE v. ROMELUS CARAWAY

                  Direct Appeal from the Criminal Court for Shelby County
                             No. 03-01611 Chris Craft, Judge



                  No. W2004-00462-CCA-R3-CD - Filed December 23, 2004


The Defendant, Romelus Caraway, was indicted for felony Escape. A Shelby County Jury convicted
the Defendant of the indicted offense, and the trial court sentenced the Defendant to six years, after
it determined the Defendant was a career offender. On appeal, the Defendant contends that the trial
court erred when it denied him a new trial because: (1) the indictment against the Defendant was
fatally defective and the trial court allowed the State to use this defective indictment to prove
essential elements of the offense for which he was charged; and (2) the evidence is insufficient to
sustain his conviction. Finding no reversible error, we affirm the trial court’s judgment.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JERRY L. SMITH and J.C.
MCLIN , JJ., joined.

Paul K. Guibao (on appeal) and Joseph S. Ozment (at trial), Memphis, Tennessee, for the appellant,
Romelus Caraway.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Steve Jones, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                             OPINION
                                              I. Facts

       In January 2003, the Defendant was indicted for felony Escape. The Defendant was
convicted of this offense by a Shelby County Jury, and he was sentenced to six years, as a career
offender. The following evidence was presented at the Defendant’s trial.

       Phyllis Sheppard, the criminal courts coordinator and keeper of records for the ten divisions
in Shelby County, testified that, on June 30, 2002, the Defendant was in the custody of the Shelby
County Sheriff’s Department for aggravated assault charges. She said that aggravated assault has
different classes, but each class is a felony. She testified that the Defendant was placed in custody
on May 29, 2002, after he was arrested by capias for failing to appear in court for aggravated assault
charges on indictment numbers 01-04636, 01-04633, and 01-04635. She said that the “system”
keeps track of people arrested by issuing a records and identification (“R and I”) number, assigned
by the Sheriff’s Department. She testified that the R and I number is based upon fingerprints, so that
even if a person is arrested several times, or uses a different name, the cases will be assigned by the
R and I number of the person.

         On cross-examination, Sheppard testified that a capias is a warrant that orders the Sheriff’s
Department to place a person in custody because that person has been summoned to court and did
not appear, resulting in a bond forfeiture. She said that, besides the R and I number, a booking
number is also assigned to each defendant and that number reflects the day a person is arrested. She
testified that the initial booking number on the aggravated assault charge was 00156918, which was
the booking number for indictment numbers 01-04636, 01-04633, and 01-04635. She said that all
three aggravated assault indictments resulted in a trial with the jury returning a verdict of not guilty
on January 17, 2003.

        On re-direct examination, Sheppard testified that the Defendant would have received a new
booking number when he was arrested for the second time on the aggravated assault charges. She
said that when a capias is issued, the defendant does not have a choice as to whether or not he is
going to be arrested and placed in custody, regardless of what the defendant believes the outcome
will be at trial. She testified that the outcome of a trial has no relation to the validity of a person
being taken into custody. She said that the Defendant’s trial on January 17, 2003, resulted in a
misdemeanor vandalism conviction.

        Bettie Lee, a registered nurse at the Regional Medical Center (“Med”), testified that she was
on duty in the detention ward on June 30, 2002. She said that the detention ward houses the ill
inmates that are in custody. She testified that each room has a lock and the doors are kept locked
while the prisoners are in the room. Lee explained that only law enforcement officers have access
to the “buzzer” that unlocks the doors. She said that the windows in the rooms are guarded with
“wires all around the window.” Lee testified that, during her shift on June 30, 2002, one of the
prisoners who was a patient in the Med, escaped. She said that this prisoner was in a single room
that had only one bed. Further, because he was being treated for tuberculosis, he was in a negative
pressure room, which is a special room for persons with airborne infections.

        Lee testified that the inmate who escaped was Romelus Caraway, and she identified him as
the Defendant in court. Lee said that an officer has to open the door for her to enter a room, but she
saw the Defendant through his door’s viewhole at approximately 8:50 p.m. when she began
dispensing medication. She said that when she entered the Defendant’s room, at approximately 9:50
p.m. to give him his medication, she discovered that the Defendant was gone. She testified that the
windows in the Defendant’s room were open and the bed was pulled against the window. Lee
explained that all of the glass from the windows was broken and removed and there were sheets
rolled up that looked “like a rope hanging out the window . . . near the ground.”


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        On cross-examination, Lee testified that, on June 30, 2002, the Defendant had been in the
Med for a few days, but she did not remember exactly how long. She said that she did not see the
Defendant leave the room. She testified that the officer at the guard station could see her enter and
exit each room. She said that she could not see the jail ward door from inside the room.

        On re-direct examination, Lee testified that, at the time that the Defendant escaped, the
prisoners in the Med were not handcuffed or shackled. She said that, since the incident, the prisoners
are restrained.

         Richard Blair, a deputy sheriff, testified that he was on duty at the Med on June 30, 2002,
and assigned to watch over the inmates housed there. He said that the inmates at the Med are in the
custody of the Shelby County Sheriff’s Office and are not free to leave. He testified that the
prisoners in the Med are in a secured room, and the officers give nurses or doctors access to the
room. Blair testified that, on June 30, 2002, the Defendant escaped, and he identified the Defendant
in the courtroom. He said that, after the Defendant had received treatment, he was to return to the
jail. The Deputy said that, when he and the nurse were going into the Defendant’s room, and the
Deputy went to “buzz to let her in,” the nurse said that the Defendant was gone. Deputy Blair
testified that he went down the hall and saw that the window was open and that there were sheets
and other materials hanging out the window. He said that, upon discovering that the Defendant was
gone, he notified his field commander and called Med security.

        On cross-examination, Deputy Blair testified that it is standard procedure to always have two
guards present. He said that, according to procedure, one guard does not leave until the replacement
guard arrives, but, on that evening, procedure was not followed because the other officer left around
9:00 p.m. The Deputy testified that the officers did not allow the inmates to have tape, extra gowns,
or extra bed sheets in their rooms and each inmate usually had one or two sheets on their bed.
Deputy Blair testified that extra linens and tape were kept at the nurse’s station, to which he had
access. He said that it is the officers’ and nurses’ responsibility to ensure that nothing extra is in the
room when the nurse leaves. He testified that he has never helped a prisoner escape. On re-direct
examination, Deputy Blair testified that the Defendant did not pay him to let him escape.

         Christopher Vaden, an officer with the Memphis Police Department, testified that, on July
1, 2002, he was involved in the Defendant’s arrest for escape. He said that he and other officers
received a call to a Shelby County address about a person that had escaped from jail, and he went
to that address. He testified that another officer saw the Defendant inside and yelled to him, which
caused the Defendant to try to exit through the side door where Officer Vaden was located. Officer
Vaden testified that the Defendant opened the side door, and saw him, and then went back into the
house. The Officer said that the Defendant then proceeded to run out the front door, where another
officer was located. He said that he and the other officer chased the Defendant on foot and, after
they captured him, they took him to the Med.

        The Defendant testified that he was in the prison ward at the Med on June 30, 2002. He said
that he broke the window in his room and that Deputy Blair gave him the tape. He testified that he


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paid Blair to help him escape, but that Blair told him to make it look like he escaped through the
window. He said that Blair gave him “scrubs” and walked him to the elevator and, while on the
elevator, he took off his gown and put on the scrubs and then walked out of the building.

        On cross examination, the Defendant testified that he was in custody and being treated for
tuberculosis when he left the Med. On re-direct examination, the Defendant testified that he was
“released” by Deputy Blair. On re-cross examination, the Defendant testified that he ran from the
police when they were trying to arrest him, after he “left” the Med.

                                             II. Analysis

         On appeal, the Defendant contends that the trial court erred in three regards. First, he asserts
that the indictment against the Defendant was defective because it did not state the specific charge
of the underlying felony, which is necessary to prove the offense of escape. Second, he contends that
the trial court improperly allowed the State to use unrelated criminal charges to prove the elements
of escape. Finally, the Defendant asserts that the evidence is insufficient to sustain his conviction
for escape.

                                            A. Indictment

        The Defendant alleges that his indictment was defective because it failed to allege the
specific charge necessary to establish lawful custody to prove the offense of escape. Specifically,
the Defendant asserts that, although he was in lawful custody of Shelby County pending aggravated
assault charges, the indictment was based upon charges of aggravated kidnapping and aggravated
assault linked to a different booking number. As a result, the Defendant contends, he was not on
notice of the specific charges used to establish lawful custody. Further, in a related issue, he asserts
that the trial court erred in allowing the State to use criminal charges that were not related to the
indictment to prove the essential elements of escape.

        The Defendant’s indictment reads:

        THE GRAND JURORS of the State of Tennessee, duly selected, empaneled, sworn
        and charged to inquire for the body of the county of Shelby, Tennessee, upon their
        oath present that:
                                      ROMELUS CARAWAY
        on June 20, 2003 in Shelby County, Tennessee, and before the finding of this
        indictment, did unlawfully and knowingly escape from the Shelby County Jail by
        leaving temporary custody at the Regional Medical Center located in Shelby County,
        Tennessee, having been lawfully held there awaiting trial for the felony charges of
        Aggravated Kidnapping and Aggravated Assault, in violation of T.C.A. 39-16-605,
        against the peace and dignity of the State of Tennessee.

The Defendant contends that this indictment was fatally defective because it was vague in stating


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what specific felony charge for which he was being held, which the Defendant contends is necessary
to prove the offense of felony Escape. Generally, defenses based upon a defective indictment must
be presented prior to trial. Tenn. R. Crim. P. 12(b)(2). Rule 12(b)(2) provides as follows:

       (b) Pretrial Motions. – Any defense, objection, or request which is capable of
       determination without the trial of the general issue may be raised before trial by
       motion. Motions may be written or oral at the discretion of the judge. The following
       must be raised prior to trial:
       (2) Defenses and objections based on defects in the indictment, presentment or
       information (other than that it fails to show jurisdiction in the court or to charge an
       offense which objections shall be noticed by the court at any time during the
       pendency of the proceedings).

Accordingly, the Defendant has waived this issue. However, in the interest of justice, we will
proceed to deal with this issue on the merits.

         The Tennessee Supreme Court has held that, for constitutional purposes, “an indictment is
valid if it provides sufficient information: (1) to enable the accused to know the accusation to which
answer is required; (2) to furnish the court adequate basis for the entry of a proper judgment; and (3)
to protect the accused from double jeopardy.” State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997).
Further, the indictment must meet the statutory requirements of Tennessee Code Annotated section
40-13-102, which provides:

       The indictment must state the facts constituting the offense in ordinary and concise
       language, without prolixity or repetition, in such a manner as to enable a person of
       common understanding to know what is intended, and with that degree of certainty,
       which will enable the court, on conviction, to pronounce the proper judgment; and
       in no case are such words as “force and arms” or “contrary to the form of the statute”
       necessary.

In Hill, our Supreme Court concluded that, although the scienter requirement was not stated in the
indictment, the indictment was valid, based upon it: (1) satisfying the three aforementioned
constitutional requirements; (2) complying with the notice requirements of Tennessee Code
Annotated section 40-13-202; and (3) providing a basis for logically inferring the mental element
of the crime charged. Id. at 726-27. The Hill Court stressed that indictments should be scrutinized
from the vantage point of “common sense and right reason rather than from the narrow standpoint
of . . . technicality or hair splitting fault finding.” Id. at 728 (quoting United States v. Purvis, 580
F.2d 853, 857 (5th Cir.1978)). Since Hill, the Court has often repeated its intention to relax
“common law pleading requirements and its reluctance to elevate form over substance when
evaluating the sufficiency of indictments.” See e.g., State v. Hammonds, 30 S.W.3d 294, 300 (Tenn.
2000). In Hammonds, the Court said, “Indeed, Hill and its progeny leave little doubt that
indictments which achieve the overriding purpose of notice to the accused will be considered
sufficient to satisfy both constitutional and statutory requirements.” Id.; see State v. Sledge, 15


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S.W.3d 93, 94 (Tenn. 2000); Crittenden v. State, 978 S.W.2d 929, 931 (Tenn.1998); Ruff v. State,
978 S.W.2d 95, 100 (Tenn. 1998). The Tennessee Supreme Court has held that an indictment may
refer to the statute that defines the offense and that indictment is sufficient and satisfies all
constitutional and statutory requirements. See Sledge, 15 S.W.3d at 95; see also Ruff v. State, 978
S.W.2d 95, 100 (Tenn. 1998).

        In the case under submission, the indictment about which the Defendant complains is
attached to the appellate record. After a thorough review of the indictment in this case, we find that
it meets both the constitutional and statutory requirements. The Defendant is named as the accused,
the date of the offense is given, and the actus reus and mens rea of the offense is stated. Further, the
indictment afforded the Defendant clear, understandable notice that he was being charged with a
violation of Tennessee Code Annotated 39-16-605, which proscribes Escape. The indictment tracks
the escape statute and alleges that the Defendant knowingly escaped from custody. The indictment’s
failure to allege the correct booking number for the specific charge required to establish felony
Escape does not make it defective. At the Defendant’s trial for escape, the State “only had to prove
that [the Defendant] escaped from lawful custody while being held for a felony. It was not necessary
for the name of the felony to be alleged, instructed, or proven.” State v. Culp, 891 S.W.2d 232, 236
(Tenn. Crim. App. 1994); see also State v. James, 81 S.W.3d 751, 760-61 (Tenn. 2002).
Accordingly, the Defendant was provided adequate notice of the charge against him, escape while
being held on a felony, and the trial court had an adequate basis for the entry of a proper judgment.
Therefore, this issue is without merit.

         Next, the Defendant contends that the trial court improperly allowed the State to use
unrelated criminal charges to prove the essential elements of escape. Specifically, the Defendant
asserts that the use of charges for aggravated assault1 and aggravated kidnapping was erroneous since
these charges were not pending. Sheppard, the keeper of the official court records, testified that the
Defendant was arrested on May 29, 2002, after failing to appear for three indictments of aggravated
assault. The record appears to support this testimony, and it appears that since only one aggravated
assault charge and one kidnapping charge were dismissed prior to the Defendant’s escape, there was
at least one aggravated assault charge that remained. In the case under submission, the jury was
instructed that in order to convict the Defendant of escape, the State must prove, beyond a reasonable
doubt, that: (1) the Defendant escaped; (2) at the time of the escape the Defendant “was charged with
aggravated assault, a felony”; (3) the escape was from a penal institution; and (4) that the Defendant
acted “intentionally, knowingly or recklessly.” Based on Sheppard’s testimony, there were
aggravated assault charges pending and, therefore, the use of a charge of aggravated assault in the
jury instruction was correct.

       Further, the citing of any specific felony was not actually needed to support a conviction for
escape and, therefore, any citation of a specific felony was merely gratuitous. Even if the felony
charge stated was the incorrect charge it does not render the indictment defective. “An indictment


         1
         In his brief, the Defendant stated that aggravated robbery charges were used, however, it appears that the
charges were actually for aggravated assault.

                                                         -6-
is not bad or fatal if it . . . contains surplus words. However, in rejecting the surplusage, the offense
must be sufficiently charged.” Culp, 891 S.W.2d at 236. After the removal of the specific offense
of aggravated assault, the indictment would still read that the Defendant was being charged with
escape while being held on felony charges and this would suffice in placing the Defendant on notice
of the offense. It is not necessary for the State to prove the type of felony for which the Defendant
was incarcerated and in custody; the State only needs to prove that the Defendant was in custody for
a felony. Id. This issue is without merit.

                                   B. Sufficiency of the Evidence

         When an accused challenges the sufficiency of the evidence, this Court’s 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, 324 (1979); State v. Carter, 121 S.W.3d 579,
588 (Tenn. 2003); State v. Smith, 24 S.W.3d 274, 278 (Tenn. 2000). This rule applies to findings
of guilt based upon direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).

        In determining the sufficiency of the evidence, this Court should not re-weigh or re-evaluate
the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor may this
Court substitute its inferences for those drawn by the trier of fact from the evidence. State v. Buggs,
995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956). Questions
concerning the credibility of the witnesses, the weight and value of the evidence, and all factual
issues raised by the evidence are resolved by the trier of fact. Liakas, 286 S.W.2d at 859. This Court
must afford the State of Tennessee the strongest legitimate view of the evidence contained in the
record, as well as all reasonable inferences which may be drawn from the evidence. State v. Evans,
838 S.W.2d 185, 191 (Tenn. 1992). Because a verdict of guilt against a defendant removes the
presumption of innocence and raises a presumption of guilt, the convicted criminal defendant bears
the burden of showing that the evidence was legally insufficient to sustain a guilty verdict. Id.; see
State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).

        The Defendant contends that the evidence presented at trial is insufficient to sustain his
conviction for escape. Specifically, he asserts that the proof at trial does not match the indictment
and the facts alleged therein. He contends that, because he was not in lawful custody for the charges
considered during the arrest and for the subsequent indictment, and those charges were used to
establish a necessary element of the offense, a guilty verdict was improper.

        Escape, as stated by Tennessee Code Annotated section 39-16-605 (2003), makes it
“unlawful for any person arrested for, charged with, or convicted of an offense to escape from a
penal institution . . . .” Escape is defined as an “unauthorized departure from custody . . . .” Tenn.
Code Ann. § 39-16-601(3)(2003). Custody, defined by Tennessee Code Annotated section 39-16-
601(2) (2003), is defined as being “under arrest by a law enforcement officer or under restraint by
a public servant pursuant to an order of a court . . . .” Penal institution “includes any institution or


                                                  -7-
facility used to house or detain a person: (A) Convicted of a crime . . . or (C) Who is in direct or
indirect custody after a lawful arrest.” Tenn. Code Ann. § 39-16-601(4) (2003).

        After considering the evidence in the light most favorable to the State, we conclude that
sufficient evidence exists in the record to support the Defendant’s conviction. The evidence at trial,
viewed in this light, showed that the Defendant was taken into custody on May 29, 2002, on at least
three separate aggravated assault charges. On June 28, 2002, one count of aggravated assault and
aggravated kidnapping were dismissed due to lack of prosecution. According to Sheppard, at least
two aggravated assault charges against the Defendant remained and that would satisfy one of the
necessary elements of the offense of felony Escape, that the Defendant was being held on felony
charges. It is not necessary for the State to prove the charges the Defendant is being held on or to
even state what the felony charges are. The evidence is, therefore, sufficient to prove that the
Defendant escaped while in custody pending felony charges. This issue is without merit.

                                          III. Conclusion

      In accordance with the foregoing authorities and reasoning, we AFFIRM the trial court’s
judgment.



                                                       ___________________________________
                                                       ROBERT W. WEDEMEYER, JUDGE




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