                                                                                        10/04/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs July 10, 2018

                   STATE OF TENNESSEE v. JACK AUSTIN

                 Appeal from the Criminal Court for Shelby County
                      No. 15-04179       Chris Craft, Judge
                     ___________________________________

                           No. W2017-02042-CCA-R3-CD
                       ___________________________________


On July 19, 2017, the Defendant, Jack Austin, was convicted of aggravated robbery, a
Class B felony. The trial court sentenced him as a Range I, standard offender to eight
years and six months at 85% in the Department of Correction. The Defendant argues on
appeal that the evidence is insufficient to sustain his conviction. He additionally argues
that the trial court imposed an excessive sentence by misapplying an enhancement factor.
After thorough review, we affirm the judgment of the trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which D. KELLY THOMAS, JR.,
and CAMILLE R. MCMULLEN, JJ., joined.

Mark Bowman, Memphis, Tennessee, for the appellant, Jack Austin.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Abby Wallace and
Jose Leon, Assistant District Attorneys General, for the appellee, State of Tennessee.


                                       OPINION

                                        FACTS

      On August 27, 2015, a Shelby County grand jury indicted the Defendant and co-
defendant for aggravated robbery. Following a jury trial, the Defendant and co-defendant
were convicted on July 19, 2017. We now review the facts relevant to this appeal.
        At trial, Deana Jeffries testified that she was working at Dollar General on January
23, 2015, when a man wearing a mask and brandishing a gun entered the store through
the front door. She stated that she could tell he was a man by his voice when he “[t]old
[Ms. Jeffries] to go behind the register and open the register.” The man was wearing a
black shirt, black pants, black shoes, and black ski mask, and Ms. Jeffries therefore did
not see his face. She testified that she was five-feet, ten-inches tall, and the man was “a
tad taller” than her. Ms. Jeffries “never had a gun pointed to [her] face” before and had a
hard time opening her register, and the man told her to “hurry up.” Once she opened the
register, the man handed her a “white grocery . . . plastic bag” and demanded she put the
money from the register into the bag. She stated that he then ran out of the store. Ms.
Jeffries’ co-worker, Walter Taylor, then helped her lock the front doors while they waited
for police to arrive.

       Mr. Taylor also testified at trial, stating that he was working in the back of the
Dollar General store on January 23, 2015, when he “heard a woman scream, and [he]
heard someone say, ‘Get down on the ground.’” After realizing the store was being
robbed, Mr. Taylor ran into the parking lot through an emergency exit and called 911.
He further testified that while in the parking lot, he saw a “van or a truck, SUV type
vehicle” on the street with its headlights on and was “already . . . running.” He then saw
a person wearing all black run toward the vehicle and get into the passenger seat, and the
vehicle “sped off back into Waverly Plantation[,]” a “big subdivision[,]” via Waverly
Farms Road, though Mr. Taylor did not see the man’s face. He further stated that
although he did not see how many people were in the vehicle, there had to be at least two
people because the vehicle left “immediately” after the man got into the passenger seat,
such that there was insufficient time for the man to get into the passenger seat, climb into
the driver seat, and drive off.

        Officer Sharif James, employed by the Shelby County Sheriff’s Office, testified
that he was one of the officers who responded to Dollar General following the robbery on
January 23, 2015. He gathered information from Ms. Jeffries and Mr. Taylor and learned
that the man was “wearing a black top with a hood on it, black pants . . . black shoes[,]”
had taken “approximately $207” from the register, and had gotten into a “light-colored
either truck or van or SUV” seen heading into Waverly Plantation. Officer James used
this information to advise others to be on the lookout (“BOLO”) for the suspect and
vehicle. He testified that there were only two roads that led in and out of Waverly
Plantation.

        Officer Heidi Moulder, employed by the Shelby County Sheriff’s Office, testified
at trial that she heard the dispatcher give details of the robbery at the Dollar General and
decided to patrol one of the entrances of Waverly Plantation with her partner, knowing
other officers were already at the only other entrance into the neighborhood. She testified
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that she saw a light-colored van run a stop sign in the neighborhood “at a high rate of
speed,” and she proceeded to initiate a traffic stop of the vehicle, which continued for
“approximately 100 feet” before stopping. Officer Moulder then approached the
passenger side of the vehicle while her partner, Officer Billy Gray, approached the driver
side. She testified that the passenger seemed “very nervous,” and she found “a handgun
inside of a do-rag in the glove box visually.” She further observed “through the window .
. . a pair of tennis shoes and other dark clothing that were given out in [the] BOLO[.]”
The clothing was later determined to be “a black hoodie turned inside out, a pair of black
pants and a black pair of shoes with a pink stripe on the bottom, and a completely
covered skull mask[,]” and a white plastic grocery bag was found amongst the clothing.
Officer Moulder also patted down the passenger, whom she described as “approximately
six-foot tall[,]” and found “approximately $207 in cash . . . in his right front pocket.” At
trial, she identified the Defendant as the passenger and the co-defendant as the driver of
the van.

        Officer Billy Gray, employed by the Shelby County Sheriff’s Office, gave
testimony similar to Officer Moulder’s. He stated that they arrived at Waverly Plantation
“pretty quickly” after the robbery and stopped the van after observing it run a stop sign,
and he spoke with the driver while Officer Moulder spoke with the passenger, during
which he discovered the driver had a suspended driver’s license. He and Officer Moulder
found black clothing in the van, and he testified that the passenger and driver both
appeared to be between six-foot and six-foot, two-inches tall. Rochelle Cooper, a
criminal investigator with the Shelby County District Attorney General’s Office, also
testified at trial regarding the co-defendant’s driving history. The Defendant elected not
to testify on his own behalf.

       Following the close of all proof, the Defendant was convicted of aggravated
robbery. At the sentencing hearing, the State pointed out that in the Defendant’s
presentence report, his mother stated that he “doesn’t attend school and get [sic] high all
day long.” The report also showed inconsistencies with the Defendant’s self-reported
employment and education and his actual records. The trial court found the existence of
one enhancement factor, namely that the Defendant had a previous history of criminal
convictions or criminal behavior, based on his previous conviction for possession of
marijuana and his admitted marijuana use. The Defendant also noted that he had other
pending criminal cases in the trial court. The Defendant argued that the court should
consider that he wanted “to be a better role model for [his children]” as a mitigating
factor. At the end of the sentencing hearing, the Defendant was sentenced to eight years
and six months in the Department of Correction.


                                       ANALYSIS
                                           -3-
        The Defendant argues on appeal that the evidence is insufficient to sustain his
conviction for aggravated robbery based on the witnesses’ inability to identify him. He
further argues that the trial court erred in applying the enhancement factor of prior
criminal history and criminal behavior based on his misdemeanor marijuana possession
conviction and his admission of prior marijuana use. The State responds that his
conviction is sustained by circumstantial evidence, and the record demonstrates that the
trial court properly weighed the criminal history and criminal behavior enhancement
factor in sentencing the Defendant to six months more than the minimum sentence. We
agree with the State.

                                 I. Sufficiency of Evidence

        When the sufficiency of the evidence is challenged, the relevant question of the
reviewing court is “whether, after viewing 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.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also
Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or
jury shall be set aside if the evidence is insufficient to support the findings by the trier of
fact of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92
(Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 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. See State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “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). Our supreme court has stated the rationale for this rule:

       This well-settled rule rests on a sound foundation. The trial judge and the
       jury see the witnesses face to face, hear their testimony and observe their
       demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be
       given to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d
523 (1963)). “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).

                                             -4-
        A criminal offense may be established entirely by circumstantial evidence. State
v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010). In addition, the State does not have the
duty to exclude every other reasonable hypothesis except that of the defendant’s guilt in
order to obtain a conviction based solely on circumstantial evidence. See State v.
Dorantes, 331 S.W.3d 370, 380-81 (Tenn. 2011) (adopting the federal standard of review
for cases in which the evidence is entirely circumstantial). The jury as the trier of fact
must evaluate the credibility of the witnesses, determine the weight given to witnesses’
testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d
331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App.
1978)). Moreover, the jury determines the weight to be given to circumstantial evidence
and the inferences to be drawn from such evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence are questions
primarily for the jury. Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d
646, 662 (Tenn. 2006)). The identification of the defendant as the perpetrator is a
question of fact for the jury after considering all the relevant proof. State v. Strickland,
885 S.W.2d 85, 87 (Tenn. Crim. App. 1993) (citing State v. Crawford, 635 S.W.2d 704,
705 (Tenn. Crim. App. 1982)). This court, when considering the sufficiency of the
evidence, shall not reweigh the evidence or substitute its inferences for those drawn by
the trier of fact. Dorantes, 331 S.W.3d at 379.

        To sustain the Defendant’s conviction, the State had to prove beyond a reasonable
doubt that he committed aggravated robbery. As is relevant to the facts of this 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” that is “[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[.]” Tenn. Code Ann. §§ 39-13-401(a), -402.
The Defendant does not challenge the specific elements of aggravated robbery or allege
that the robbery was not committed; instead, he contends that the State failed to prove his
identity as the perpetrator.

        Although neither Ms. Jeffries nor Mr. Taylor saw the perpetrator’s face, Ms.
Jeffries was able to describe the clothing the perpetrator was wearing and his height. Mr.
Taylor was able to describe the getaway vehicle that the perpetrator got into, and testified
that it would have been impossible for the perpetrator to get into the passenger’s seat and
then switch to the driver’s seat based on the time if took the vehicle to take off. Officer
Moulder testified that she and her partner stopped a vehicle matching the description Mr.
Taylor gave in the same neighborhood that he saw the vehicle go toward. The
neighborhood had only two entrances, and Officer Moulder and Officer Gray arrived
there soon after the robbery. Officer Moulder further testified that they found
approximately $207 in the Defendant’s pocket, the same amount stolen from Dollar
General, and a gun hidden in the glove compartment. Further, Officer Gray testified that
                                           -5-
they found black clothing and a white plastic grocery bag matching the description that
Ms. Jeffries gave of the perpetrator and the bag, and the Defendant was the same height
as the perpetrator. At trial, both Officer Gray and Officer Moulder were able to identify
the Defendant as the passenger of the vehicle they stopped. The jury was also able to
view the store’s surveillance videotape and make its own determination of how
recognizable the man in the video was based on his clothing. Though circumstantial, we
conclude that there was enough evidence in the form of testimony from the Dollar
General employees and the officers, as well as the security footage, to sustain the
Defendant’s conviction of aggravated robbery. Viewed in the light most favorable to the
State, a rational trier of fact could have found that the Defendant committed aggravated
robbery. The Defendant is not entitled to relief.

                                     II. Sentencing

       Under the 2005 amendments to the Sentencing Act, a trial court is to consider the
following when determining a defendant’s sentence and the appropriate combination of
sentencing alternatives:

      (1) The evidence, if any, received at the trial and the sentencing hearing;

      (2) The presentence report;

      (3) The principles of sentencing and arguments as to sentencing
      alternatives;

      (4) The nature and characteristics of the criminal conduct involved;

      (5) Evidence and information offered by the parties on the mitigating and
      enhancement factors set out in §§ 40-35-113 and 40-35-114;

      (6) Any statistical information provided by the administrative office of the
      courts as to sentencing practices for similar offenses in Tennessee; and

      (7) Any statement the defendant wishes to make in the defendant’s own
      behalf about sentencing.

Tenn. Code Ann. § 40-35-210(b).


       The trial court is granted broad discretion to impose a sentence anywhere within
the applicable range, regardless of the presence or absence of enhancement or mitigating
                                           -6-
factors, and the sentencing decision of the trial court will be upheld “so long as it is
within the appropriate range and the record demonstrates that the sentence is otherwise in
compliance with the purposes and principles listed by statute.” State v. Bise, 380 S.W.3d
682, 709-10 (Tenn. 2012). Although the trial court should consider enhancement and
mitigating factors, the statutory enhancement factors are advisory only. See Tenn. Code
Ann. § 40-35-114; see also Bise, 380 S.W.3d at 701. Moreover, a trial court's
“misapplication of an enhancement or mitigating factor does not invalidate the sentence
imposed unless the trial court wholly departed from the 1989 Act, as amended in 2005.”
Bise, 380 S.W.3d at 706. Accordingly, we review the length of the sentences ordered by
the trial court under an abuse of discretion standard, “granting a presumption of
reasonableness to within-range sentencing decisions that reflect a proper application of
the purposes and principles of our Sentencing Act.” Id. at 707.

        At the sentencing hearing, the trial court briefly misspoke regarding the Defendant
after the State confused the Defendant and the co-defendant. However, the trial court
correctly referenced the Defendant and his presentence report in applying the
enhancement factor of his previous history of criminal convictions and criminal behavior.
See Tenn. Code Ann. § 40-35-114(1). The court based this determination on the
Defendant’s previous marijuana possession conviction and admitted marijuana use,
though the trial court stated it did not give the factor significant weight. Though the
Defendant argued that he did not want to be a “career criminal” so that he could be a role
model for his children, the trial court declined to apply that as a mitigating factor. The
Defendant also argued that his misdemeanor conviction and prior marijuana use should
not have been applied as an enhancement factor, and he should have been sentenced to
the minimum eight-year sentence. In sentencing the Defendant, the trial court reasoned:

      I find [the] enhancement factor that he has a previous history of criminal
      convictions or criminal behavior. He has this marijuana conviction and
      also admits, freely admits to smoking marijuana. So I don’t give a great
      deal of weight to that enhancement factor because I have only one
      misdemeanor conviction.
          ....
      The mitigating factor about his children and his allocution about wanting to
      be there for his kids, looking at his Presentence Report he smokes
      [marijuana] all day. He dropped out of school. . . . Doesn’t work. Doesn’t
      go to school. Basically smokes [marijuana]. . . . So although he does have
      children, I really cannot figure that that’s mitigating.
          ....
      So for that reason I’m going to show [the Defendant] sentenced to eight
      years and six months in the Department of Correction at 85 percent parole

                                           -7-
      eligibility. The marijuana offense and the smoking marijuana in general,
      that criminal behavior is good for six months.

    The sentencing range for aggravated robbery, a Class B felony, committed by a Range
I, standard offender is between eight and twelve years. Tenn. Code Ann. § 40-35-
112(a)(2). The record reflects that the trial court properly considered the enhancement
and mitigating factors, applying the Defendant’s past criminal history and criminal
behavior as an enhancement factor and finding no mitigating factors. Accordingly, the
trial court sentenced the Defendant to eight years and six months, six months beyond the
minimum sentence in his range. Id. Although the Defendant argues that the
enhancement factor should not have been applied, he fails to recognize that he has a prior
criminal conviction, period, and the trial court has discretion to take that into
consideration and impose a sentence within the applicable range. Again, our standard of
review is abuse of discretion with a presumption of reasonableness. After thorough
review, we conclude the record supports the trial court’s sentencing determinations. The
Defendant is not entitled to relief.

                                    CONCLUSION

        Based on the foregoing authorities and reasoning, we affirm the judgment of the
trial court.



                                            ____________________________________
                                            ALAN E. GLENN, JUDGE




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