            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                       DECEMBER SESSION, 1997        FILED
                                                      March 24, 1998

                                                  Cecil Crowson, Jr.
STATE OF TENNESSEE,         )                        Appellate C ourt Clerk
                            )    No. 03C01-9701-CR-00013
      Appellee              )
                            )    HAMILTON COUNTY
vs.                         )
                            )    Hon. STEPHEN M. BEVIL, Judge
JAMIE LEE PITTMAN,          )
                            )    (Aggravated Robbery; Robbery;
      Appellant             )    Carrying a dangerous weapon)



For the Appellant:               For the Appellee:

Johnny D. Houston, Jr.           Charles W. Burson
717 Georgia Avenue               Attorney General and Reporter
Chattanooga, TN 37402
                                 Clinton J. Morgan
                                 Assistant Attorney General
                                 Criminal Justice Division
                                 450 James Robertson Parkway
                                 Nashville, TN 37243-0493


                                 William H. Cox III
                                 District Attorney General

                                 Rebecca J. Stern
                                 Asst. District Attorney General
                                 Suite 300, Courts Building
                                 600 Market Street
                                 Chattanooga, TN 37402



OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                                    OPINION



        The appellant, Jamie Lee Pittman, was found guilty by a Hamilton County jury

of aggravated robbery, robbery, and carrying a dangerous weapon. The trial court

subsequently imposed an effective sentence of twelve years in the Department of

Correction. In this appeal as of right, the appellant raises the following issues:

        I. Whether the trial court erred in denying the appellant’s Motion to
        Suppress; and

        II. Whether the evidence is sufficient to sustain the appellant’s
        conviction for aggravated robbery.


        After a review of the record before us, we affirm the judgments entered by the

trial court.




                                                  Background



        On April 23, 1994, Bryant Young and Dereke Silvers, life-long friends, were

preparing to travel from their home in Chattanooga to Atlanta, Georgia to attend

“Freaknik,” a week long gathering of students from African-American colleges in the

southeast.1 Young packed several new outfits, “a lot” of compact discs, and his nine

millimeter Ruger, which had been disassembled and placed in his luggage for the

journey to Atlanta. Young then left his home in his 1989 Nissan pickup truck to

meet Silvers.



        Before the two young men left Chattanooga, Young stopped at a

convenience store to get a beer and some snack food for their trip. As Young pulled

into the parking lot, he noticed a taxi cab entering the lot. The driver of the cab

knew both Young and Silvers and called out to the two men. Young noticed that



        1
            Young describ ed Frea knik as a “little black M ardi Gra s aroun d April . . . .”

                                                       2
three passengers were inside the cab. He then observed two of the passengers

enter the store. While Silvers remained in the truck, Young entered the store and

selected his purchases. Soon thereafter, Silvers, leaving the truck unattended, went

into the store. Silvers and Young then proceeded to pay for their purchases. As

Young was leaving the store he observed two individuals, later identified as Brewer

and Jennings, walking away with two of his bags containing personal items which

had been placed in the bed of his truck. In an attempt to regain his possessions, he

chased after the two. One of the fleeing thieves, Cornelius “Red Bone” Jennings,

had a sawed off pump shotgun with a shirt wrapped around the barrel. Jennings

pointed the weapon towards Young and forced him to lay upon the ground. The

appellant approached Young, picked him up off the ground, and demanded Young’s

jewelry and wallet. Meanwhile, Greg “BooBoo” Brewer was taking Young’s compact

discs and telephone out of the cab of the truck. When Silvers finally emerged from

the store, he was greeted by Jennings and his sawed off shotgun. Like Young,

Silvers was robbed of his jewelry and wallet. The perpetrators, clutching their ill-

gotten gains, fled the scene. Young and Silvers located a police officer nearby and

reported the incident.



       Detective Randy Poland obtained descriptions of the robbers from both

Silvers and Young. He then prepared photo-lineups which he separately showed to

both victims. Young identified both Pittman and Brewer as the perpetrators; Silvers

was only able to identify Brewer from the lineup.



       On April 29, 1994, at approximately 2:00 p.m., Dereke Silvers again

contacted the Chattanooga Police Department. He reported that three men drove

by his house in a red vehicle and pointed weapons at him. He described these men

as the three men who had robbed him earlier that month; “one by the name of Jamie

Pittman and the other one was “BooBoo.” Silvers described the clothing his

assailants were wearing, the vehicle in which the men were traveling, and also


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described the weapons the men were carrying, i.e., “semi-automatic,” “like a .9

millimeter.” This information was dispatched over the police radio and Detective

John Carter responded to the call. Detective Carter was acquainted with “BooBoo”

Brewer and the appellant.



      Ten minutes after receiving this information, Detective Carter stopped at a

convenience store to purchase something to drink. While inside the store, he

recognized the appellant and Brewer as they entered the store. He also noticed a

red vehicle, matching the description provided by Silvers, parked outside. Carter

advised the two men to stop and, although familiar with them by name, asked them

to identify themselves. The appellant responded truthfully while Brewer provided a

false name. Carter called for backup and detained the appellant and Brewer inside

the store. After backup arrived, Carter went outside to the vehicle and looked

through the windows. At this point, the detective observed what appeared to be the

barrel of a gun protruding from beneath the front passenger seat. Carter opened

the door and retrieved the gun, a .38 Rossi revolver. Believing that the weapon

provided probable cause for a more detailed search of the car, Carter looked in the

glove compartment where he discovered a nine millimeter Ruger. Both weapons

were loaded. At this point, the appellant and Brewer were taken into custody.



                          I. Search of Appellant’s Vehicle



       The appellant first argues that the trial court erred in denying his motion to

suppress, thereby, permitting introduction of the two pistols found in the automobile

driven by the appellant. In support of this contention, the appellant asserts the well-

established principle that, “warrantless searches and seizures are presumed to be

unreasonable unless they fall within one of the exceptions to the warrant

requirement.” He contends that the search of the vehicle was executed without the

benefit of a valid exception to the warrant requirement. We disagree.


                                         4
       On a motion to suppress, deference is given to the trial court to assess the

credibility of the witnesses and determine issues of fact, and the prevailing party is

entitled to the strongest legitimate view of the evidence. State v. Odom, 928 S.W.2d

18, 23 (Tenn. 1996). Moreover, the trial court’s findings will not be disturbed on

appeal unless the evidence preponderates otherwise. Id. At the conclusion of the

motion to suppress, the trial court upheld the validity of the search based upon the

presence of exigent circumstances plus probable cause to justify the warrantless

search. In arriving at this conclusion, the trial court found, in relevant part, as

follows:

       . . . the line of cases since Chambers and Carroll basically said that if
       the officer has probable cause to such that he could go get a search
       warrant, in light of the fact that this is a movable object and it is subject
       to be moved and in light of the exigent circumstances, that it would be
       sort of an exercise in futility to require him to go back and get a search
       warrant, if he has probable cause to search it. . . .

       . . .I feel like that it is a valid search, it’s a justifiable search as an
       exception to the search warrant requirement, and that is an automobile
       search under Carroll and Chambers v. Maroney and those other
       cases. . . .



Additionally, the court concluded that the possible presence of an unidentified third

person at the scene, who could have driven the vehicle away or shot the officer with

the weapon, justified the officer’s “approaching the car to glance inside.”

Accordingly, the trial court opined that, once Carter observed the barrel of the

weapon protruding from beneath the front seat of the car, he had probable cause to

expand his search to the remainder of the vehicle, including the glove compartment.



       Any warrantless search is presumptively per se unreasonable under the

Fourth Amendment. Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S.Ct. 2130,

2135 (1993). Since warrantless searches are presumed to be unreasonable, the

prosecution has the burden of establishing by a preponderance of the evidence that

the search and resulting seizure were justified pursuant to one of the recognized

exceptions to the warrant requirement. State v. Watkins, 827 S.W.2d 293, 295


                                           5
(Tenn. 1992) (citing Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct.

2022, 2032 (1971); Hughes v. State, 588 S.W.2d 296, 301 (Tenn. 1979)). The

Supreme Court of the United States has continually carved out exceptions to the

warrant requirement based on the level of intrusiveness involved in the search, the

expectation of privacy of the individual, and the circumstances surrounding the

search. State v. White, No. 03C01-9408-CR-00277 (Tenn. Crim. App. at Knoxville,

June 7, 1995).



         The law is well established that, “if a car is readily mobile, [an exigency

sufficient to excuse the failure to obtain a search warrant] and probable cause exists

to believe it contains contraband, the Fourth Amendment permits police to search

the vehicle without more.”2 Pennsylvania v. LaBron, -- U.S. --, 116 S.Ct. 2485, 2487

(1996). See also California v. Carney, 471 U.S. 386, 105 S.Ct. 2066 (1985); Carroll

v. United States, 267 U.S. 132, 155-56, 45 S.Ct. 280, 286 (1925); State v. Leveye,

796 S.W.2d 948, 953 (Tenn. 1990); State v. Julian, No. 03C01-9511-CV-00371

(Tenn. Crim. App. at Knoxville, Jul. 24, 1997); State v. Mason, No. 01C01-9509-CC-

00288 (Tenn. Crim. App. at Nashville, Apr. 30, 1997); State v. Parrish, No. 01C01-

9309-CC-00292 (Tenn. Crim. App. at Nashville, Nov. 16, 1995), perm. to appeal

denied, (Tenn. Apr. 1, 1996). Once an officer has probable cause to believe

contraband is contained in the vehicle, he may search the automobile and the

containers within it. California v. Acevedo, 500 U.S. 565, 580, 111 S.Ct. 1982, 1991


         2
          Probable cause is defined as “a reasonable ground for suspicion, supported by
circumstances indicative of an illegal act.” State v. Johnson, 854 S.W .2d 8 97, 8 99 (T enn . Crim .
App. 1993). In the present case, Detective Carter had been informed by Silvers, the victim of the
aggravated robbery, that the perpetrators of the robbery (who had previously been identified as
the appellant, Brewer, and Jennings) drove by his home in a red car pointing “semi-automatic”
weapons at him. Carter then observed the appellant and Brewer pull into the parking lot of the
conve nience s tore in a red vehicle. Ca rter was ju stified in relying up on Silvers ’ informa tion.
W here the information is received from a citizen informant, the information is presumed reliable
and the officer is not under any obligation to establish that the source is credible or that the
inform ation is reliable. See State v. Cauley, 863 S.W .2d 411, 4 17 (Te nn. 1993 ); State v. Melson,
638 S.W .2d 342, 3 54-55 (T enn. 198 2), cert. denied, 459 U.S. 1137, 103 S.Ct. 770 (1983). “An
ordinary citizen who reports a crime which has been committed in his presence . . . stands on
much different ground than a police informer.” State v. Sm ith, 867 S.W .2d 3 43, 3 47 (T enn . Crim .
App. 1993) (citation omitted). This distinction is applicable to the present case. Detective Carter
had no re aso n to q ues tion th e cre dibility of Silver s, wh o had been the vic tim o f a vio lent c rim e
comm itted previously by the perpetrators. Silvers was an eyewitness to the offense. More over,
the circumstances which developed subse quent to Carter’s arrival at the convenience store
corrob orated S ilvers repo rt. Thus , sufficient p robable cause existed fo r the ens uing sea rch.

                                                      6
(1991). Thus, Carter’s initial search of the vehicle and subsequent search of the

glove compartment was proper.



       Another exception to the warrant requirement also is applicable under the

facts of the present case, i.e., when the seized items are in “plain view” from a lawful

vantage point of the searching officer. See Harris v. United States, 390 U.S. 234,

236, 88 S.Ct. 992, 993 (1968); Armour v. Totty, 486 S.W.2d 537, 540 (Tenn. 1972).

The “plain view” doctrine requires proof that: (1) the objects seized were in plain

view; (2) the viewer had a right to be in position for the view; and (3) the

incriminating nature of the object was immediately apparent. Horton v. California,

496 U.S. 128, 136-141, 110 S.Ct. 2301, 2308-2310 (1990), overruling in part,

Coolidge v. New Hampshire, 403 U.S. at 443, 91 S.Ct. at 2022; see also Minnesota

v. Dickerson, 508 U.S. at 375, 113 S.Ct. at 2136-37 (citations omitted). We

conclude that the circumstances surrounding the challenged search satisfy the plain

view exception to the warrant requirement. First, Detective Carter had a right to be

in “position for the view.” The appellant’s vehicle was already parked in the store’s

parking lot, subject to observation by anyone who cared to look. See United States

v. Willis, 37 F.3d 313, 316 (7th Cir. 1994). Merely by approaching the vehicle,

Carter was in a legitimate position to look through the window of the vehicle. Id.

Next, Detective Carter testified that he saw, “in plain view,” what appeared to be the

barrel of a weapon protruding from beneath the front passenger seat of the vehicle

matching the description provided by Silvers, who had, less than thirty minutes

before, recounted the incident involving the appellant, Brewer, and Jennings waving

guns at him from a red car. Thus, Carter’s seizure of the Rossi revolver falls within

the “plain view” exception to the warrant requirement.



       The evidence in the record does not preponderate against the trial court’s

findings as to this issue. Accordingly, this issue is without merit.




                                          7
                              II. Sufficiency of Evidence



       In his final issue, the appellant limits his challenge regarding the sufficiency of

the evidence to his conviction for aggravated robbery. He argues that the proof fails

to establish that the victim Bryant Young was placed “in fear.” In support of his

contention, he asserts that “Young never testified that he was in fear. Moreover,

when explicitly asked the question ‘how did this all make you feel,’ he replied that he

was angry and shocked, but never that he was in fear.” Thus, the appellant

contends that the State failed to satisfy an essential element of the offense of

aggravated robbery. We disagree.



       When a challenge is made on appeal to the sufficiency of the convicting

evidence, this court must adhere to certain well-established principles. First, 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). Next, the State is entitled to the strongest

legitimate view of the evidence and all reasonable or legitimate inferences which

may be drawn therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992).

Moreover, this court may not reweigh or reevaluate the evidence. State v. Cabbage,

571 S.W.2d 832, 835 (Tenn. 1978). Viewing the evidence under these criteria, it is

this court's responsibility to affirm the conviction if the proof was sufficient for any

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

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

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

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

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

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




                                           8
       In the present case, aggravated robbery is defined as the intentional or

knowing theft of property from the person of another by violence or putting the

person in fear where the robbery is accomplished with a deadly weapon. Tenn.

Code. Ann. § 39-13-401, 402 (1990). As the language of the statute plainly

provides, robbery may be accomplished through either the element of “putting the

person in fear” or “by violence.” Id.; see also State v. Nunley, No. 01C01-9309-CC-

00316 (Tenn. Crim. App. at Nashville, Feb. 2, 1995). It is abundantly clear, in this

case, that the robbery was accomplished through violence. Moreover, the fact that

the victim failed to testify that he was in fear during the robbery is not determinative

of the issue. The element of either “fear” or “violence” is satisfied if the

circumstances of the incident, within reason and common experience, are of such a

nature as to persuade a person to part with his property against his will. See

generally State v. Thien Duc Le, 743 S.W.2d 199, 201 (Tenn. Crim. App. 1987);

State v. High, No. 02C01-9312-CR-00275 (Tenn. Crim. App. at Jackson, Oct. 12,

1994). The fact that co-defendant Jennings pointed a sawed off shotgun in the

victim’s face while the appellant removed the victim’s rings and wallet is sufficient

proof of both violence and fear. In addition, the appellant’s taking of the victim’s

property is sufficient to find him criminally responsible for Jennings’ acts of violence.

See Tenn. Code Ann. § 39-11-402(2) (1991). This issue is without merit.




                                    III. Conclusion



       For the forgoing reasons, the judgment of the trial court is affirmed.




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                          ____________________________________
                          DAVID G. HAYES, Judge



CONCUR:




______________________________________
DAVID H. WELLES, Judge



______________________________________
THOMAS T. W OODALL, Judge




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