         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs April 19, 2005

                 STATE OF TENNESSEE v. CLARENCE MABON

                      Appeal from the Criminal Court for Shelby County
                             No. 03-02347   J. C. McLin, Judge



                     No. W2004-01880-CCA-R3-CD - Filed June 6, 2005


A Shelby County Criminal Court jury convicted the defendant, Clarence Mabon, of two counts of
aggravated robbery, a Class B felony. The trial court merged the two offenses and sentenced him
as a Range I, standard offender to eight years in the Department of Correction. On appeal, the
defendant contends that the evidence is not sufficient to support his conviction and that a fatal
variance exists between the indictment and the proof presented at trial. We affirm the judgment of
the trial court.

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

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and ALAN
E. GLENN , J., joined.

Robert Wilson Jones, District Public Defender; Garland Ingram Erguden, Assistant Public Defender
(on appeal); and Trent Hall, Assistant Public Defender (at trial), for the appellant, Clarence Mabon.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Vanessa D. King, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

        This case relates to the armed robbery of a McDonald’s restaurant on Poplar Street in
Memphis, Tennessee, on November 23, 2002. Alisha Jenkins testified that she was working as the
counter clerk at the McDonald’s on the night of the robbery. She said she was sixteen years old at
that time and had been working at the restaurant for three weeks. She said the defendant came to
the counter and asked for a glass of water. She said that when she gave him a cup of water, he left
the counter and walked toward the rear of the restaurant. She said that approximately one hour later,
he returned to the counter and ordered some food. She said that when she told him the cost of his
order, he leaned on the counter and said, “This a robbery.” She said she stepped back and looked
at her manager, who was busy preparing french fries. She said that she looked back to the robber
and he said, “Don’t be stupid.” She said she returned to the cash register and started pushing buttons
in an attempt to open the register. She said that he asked what was wrong and that she replied she
was frightened. She said the robber had a two-barreled, “long” gun in his duffle bag. She said the
gun was inside the duffle bag and covered with something. She said that she handed him the money
in the register when it opened, which the manager saw. She said the manager approached them and
asked, “Alisa [sic], what you doing?” and that she replied, “We just robbed.” She said that the
robber left through the back entrance facing the library and that her manager pressed the alarm
buttons located at the register and the drive-through window. She said the police arrived shortly
thereafter. She said the robbery occurred at approximately 7:00 or 8:00 p.m.

        Ms. Jenkins testified that the police came to her house with photographs and that she was
able to identify the robber in one of the photographs. She said that later she was asked to come to
court to identify the person who committed the robbery and that the man she identified was the
defendant. She said that she was afraid when the defendant came into the McDonald’s with the gun
because she believed the defendant might shoot her, even if she gave him the money.

        On cross-examination, Ms. Jenkins testified that the defendant was wearing a cap and a blue
South Pole sweater. She said that no customers were present during the time the defendant was in
the restaurant.

        Eugenia Threat testified that while she was working at the McDonald’s drive-through
window on the evening of the robbery, she observed Ms. Jenkins handing money from her cash
register to a man at the counter. She said that when she approached Ms. Jenkins to ask her why she
was giving money away, she saw that the man receiving the money had a gun. She said that the gun
appeared to be long but that she could only see the barrel because the gun was inside a dark-colored
duffle bag with some type of clothing lying over the top of it. She said the man pointed the gun at
her and motioned for her to return to the drive-through. She said she put up her hands and waited
for him to take what he wanted and leave. She said that Ms. Jenkins’ mouth was open and she
looked “scared to death.” She said the man left the counter and walked around the corner. She said
she immediately began pushing the alarm buttons in the store.

       Ms. Threat testified that she saw the face of the robber during the robbery and that she saw
him again about one week later. She said that she saw him walk through the McDonald’s restaurant
and that she and her manager followed him to a Wendy’s restaurant. She said they called the police
who arrested him at Wendy’s. She said she was certain the man they followed to Wendy’s was the
same man who had robbed the McDonald’s the week before. She identified the defendant in court
as the man who robbed the restaurant and acknowledged that she also identified him in general
sessions court approximately one year before the trial.

        Memphis City Police Officer David Galloway testified that he received a call to go to the
library at 3030 Poplar Street on November 24, 2002. He said some officers had discovered a twelve-
gauge shotgun, a blue sweater cap, and one pair of blue gym shorts in a blue Wilson gym bag behind



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the dumpster in back of the library. He said the shotgun contained one shell. He said he
photographed the items and tagged them for storage as evidence in the police property room.

       On cross-examination, Officer Galloway testified that he was not called to the robbery scene
at the McDonald’s restaurant and that he did not know whether the bag and its contents were
checked for fingerprint evidence. He said that his job was only to collect the evidence. This
concluded the state’s proof. The defendant did not present any evidence.

        The jury returned a verdict of guilty on counts one and two of the indictment. Count one
alleged that the defendant committed the offense of aggravated robbery by violence, and count two
alleged that the defendant committed the offense by putting the victim in fear. The trial court
merged count two into count one and entered one judgment of conviction for aggravated robbery.

                            I. SUFFICIENCY OF THE EVIDENCE

       The defendant contends that the evidence is insufficient to support his conviction for
aggravated robbery. He argues that the conviction rests solely on the identifications provided by two
eyewitnesses. The state contends the evidence is sufficient. We agree with the state.

        Our standard of review when the defendant questions the sufficiency of the evidence on
appeal 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, 99 S. Ct. 2781, 2789 (1979). We do not re-weigh
the evidence but presume that the jury has resolved all conflicts in the testimony and drawn all
reasonable inferences from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d
542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions about
witness credibility were resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

        Aggravated robbery is the “intentional or knowing theft of property from the person of
another by violence or putting the person in fear” and “[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. § 39-13-401, -402. The record reflects that the defendant was positively identified
by two eyewitnesses: Ms. Jenkins and Ms. Threat. Ms. Jenkins testified that she also identified the
defendant before the trial from photographs and at a previous court session. Ms. Threat testified that
she saw the face of the robber during the robbery, that she recognized him when she saw him again
in the restaurant, and that she also identified him in general sessions court approximately one year
before the trial. Both witnesses also testified that the defendant displayed a “long” gun during his
commission of the robbery. Ms. Jenkins testified that she feared the defendant may shoot her, even
if she gave him the cash in the register, and pointing a deadly weapon at a victim constitutes
“violence” as used in the offense of robbery. See State v. Allen, 69 S.W.3d 181, 186 (Tenn. 2002).
We conclude that the evidence was sufficient.




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                            II. VARIANCE IN THE INDICTMENT

       The defendant contends that a fatal variance exists between the indictment and the proof
presented at trial because both counts of the indictment incorrectly allege that the property taken
belonged to the employee working the cash register, when in fact the property was owned by
McDonald’s restaurant. The state contends that the indictment meets the requirements set forth in
T.C.A. § 40-13-202 and is valid.

        In this case, count one alleges that the defendant, Clarence Mabon, on November 23, 2002,
in Shelby County, Tennessee, “did unlawfully, knowingly, and violently, by use of a deadly weapon,
to wit: a firearm, obtain from the person of AMESHIA JENKINS: a sum of money, proper goods
and chattels of AMESHIA JENKINS, in violation of T.C.A. § 39-13-402 . . . .” Count two differs
in alleging that the defendant “did unlawfully and knowingly, by use of a deadly weapon, to wit: a
firearm, put AMESHIA JENKINS in fear and obtain from the person of AMESHIA JENKINS: a
sum of money, proper goods and chattels of AMESHIA JENKINS, in violation of T.C.A. § 39-13-
402, against the peace and dignity of the State of Tennessee.”

       Tennessee Code Annotated section 40-13-202 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 . . . .

        The defendant contends that if the ownership allegation in the indictment names one person
and the proof at trial shows the stolen property belongs to a different person, the variance in the
indictment is fatal, citing Daughtery v. State, 424 S.W.2d 414 (Tenn. 1968); Johnson v. State, 253
S.W. 963 (Tenn. 1923); Bolton v. State, 617 S.W.2d 909 (Tenn. Crim. App. 1981); and Parton v.
State, 458 S.W.2d 646 (Tenn. Crim. App. 1970). These cases followed the earlier common law
variance rule which stated that “if a person or thing necessary to be mentioned in an indictment is
described with greater particularity than is requisite, such person or thing must be proved exactly as
described in the indictment.” Bolton, 617 S.W.2d at 910 (citations omitted). However, the old
common law rule has since been relaxed, “so that substance rather than form is now determinative
of such questions.” State v. Moss, 662 S.W.2d 590, 592 (Tenn. 1984).

        In Moss, the defendant was convicted of petit larceny. The proof showed that the defendant
stole a sum of money from the car of a pizza delivery man employed by Matt’s Pizza. Both the
indictment and the proof stated that the money stolen was owned by Robert Furlotte and Charles
Oswalt. The variance was that the indictment stated that Furlotte and Oswalt operated as a
partnership, but the proof revealed that the two owners operated their business in corporate form.
The supreme court held that to the extent a variance existed between the indictment and the proof



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respecting the owner of the money stolen, “it was not a material one and amounts to nothing more
than harmless error.” Id. The court stated that

                The policy now followed in this and in most other jurisdictions is that
                before a variance will be held to be fatal it must be deemed to be
                material and prejudicial. A variance between an indictment and the
                proof in a criminal case is not material where the allegations and
                proof substantially correspond, the variance is not of a character
                which could have misled the defendant at trial and is not such as to
                deprive the accused of his right to be protected against another
                prosecution for the same offense. . . .

                         We approve the principles adopted by the Court in United
                States v. Schoenhut, 576 F.2d 1010 (3rd Cir.1978), which we
                paraphrase as follows: Unless substantial rights of the defendant are
                affected by a variance, he has suffered no harm, and a variance does
                not prejudice the defendant’s substantial rights (1) if the indictment
                sufficiently informs the defendant of the charges against him so that
                he may prepare his defense and not be misled or surprised at trial, and
                (2) if the variance is not such that it will present a danger that the
                defendant may be prosecuted a second time for the same offense; all
                other variances must be considered to be harmless error.

Id. (citations omitted).

        We conclude that the substantial rights of the defendant in this case were not affected by the
variance between the allegations of the indictment and the proof respecting ownership of the stolen
money. The indictment sufficiently informed the defendant of the charges against him to allow him
to prepare a defense without being misled or surprised at trial, and the variance does not present any
danger that the defendant could be prosecuted a second time for the same offense. The discrepancy
in the indictment concerning ownership is neither material nor prejudicial to the substantial rights
of the defendant and, therefore, is not a fatal variance between the indictment and proof. The
indictment states the facts constituting the aggravated robbery offense in ordinary and concise
language, such that a person of common understanding could know what was intended and the court
could pronounce the proper judgment, as required by T.C.A. § 40-13-202. The defendant is not
entitled to relief on this issue.

        Based on the foregoing and the record as a whole, the judgment of the trial court is affirmed.



                                                       ___________________________________
                                                       JOSEPH M. TIPTON, JUDGE


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