         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs December 4, 2001

                      STATE OF TENNESSEE v. MIKO T. BURL

                   Direct Appeal from the Criminal Court for Shelby County
                           Nos. 99-01971-73   W. Otis Higgs, Judge



                    No. W2000-02074-CCA-R3-CD - Filed January 28, 2002



The Appellant, Miko T. Burl, was convicted by a Shelby County jury of aggravated assault,
aggravated burglary, and especially aggravated robbery. Burl received an effective twenty-five year
sentence. On appeal, Burl raises the following issues: (1) whether the evidence was sufficient to
support the verdicts; (2) whether the trial court erred in not suppressing the photographic
identification; (3) whether the trial court erred in rejecting his special jury instruction relating to the
suggestiveness of the photo identification procedure; and (4) whether his sentence was proper. After
a review of the record, we find Burl’s issues are without merit. We find, however, as plain error, that
Burl’s convictions for both aggravated assault and especially aggravated robbery violate double
jeopardy principles. The conviction for aggravated assault is, therefore, vacated. The judgment of
the trial court in all other respects is affirmed.


  Tenn. R. App. P. 3; Judgment of the Criminal Court is Reversed and Dismissed in Part;
                                    Affirmed in Part.

DAVID G. HAYES, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and DAVID
H. WELLES, J., joined.

Brett B. Stein, Memphis, Tennessee, for the Appellant, Miko T. Burl.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; J. Ross Dyer,
Assistant Attorney General; William L. Gibbons, District Attorney General; and Charles Bell,
Assistant District Attorney General, for the Appellee, State of Tennessee.
                                              OPINION

                                        Factual Background

         On September 22, 1998, Josephine Woodson, the eighty-six-year-old victim, and her
daughter-in-law, Linda Fly, were at Ms. Woodson’s home in Memphis. Ms. Woodson heard
someone at the door. Thinking it was her son, she got up to let him in. When she got up, she was
met by the Appellant, who was holding a gun in her face and demanding money. Ms. Woodson
grabbed the gun, and began to “tussle all over the floor” with the Appellant. The Appellant threw
Ms. Woodson against a heater, breaking her ribs. He fled the home after taking $230 from a pocket
of Ms. Woodson’s clothing. During the robbery, the Appellant dropped a pager. Based upon this
fact, the Appellant was developed as a suspect. During the investigation, two photo lineups were
shown to Ms. Woodson and Ms. Fly, and both positively identified the Appellant as the robber.

        After a trial by jury, the Appellant was convicted of one count of aggravated assault, one
count of aggravated burglary, and one count of especially aggravated robbery. The Appellant, a
Range I standard offender, received sentences of four years for the aggravated assault conviction,
four years for the aggravated burglary conviction, and twenty-five years for the especially aggravated
robbery conviction. These sentences were ordered to be served concurrently. The Appellant filed
a motion for new trial, which was later denied. This timely appeal followed.

                                             ANALYSIS

                                   I. Sufficiency of the Evidence

        The Appellant first argues that the evidence produced at trial was insufficient to support his
convictions for aggravated assault, aggravated burglary and especially aggravated robbery.
Specifically, he argues that “a rational trier of fact could not have found him guilty beyond a
reasonable doubt based upon the proof, [i.e.,] the issue at trial was a classic one of eye witness
identification of the Defendant as compared to the Defendant’s alibi.” We disagree.

         A jury conviction removes the presumption of innocence with which a defendant is 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).
In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the
evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Likewise, it is not the duty of this
court to revisit questions of witness credibility on appeal, that function being within the province of
the trier of fact. State v. Adkins, 786 S.W.2d 642, 646 (Tenn. 1990); State v. Burlison, 868 S.W.2d
713, 719 (Tenn. Crim. App. 1993). Instead, the Appellant must establish that the evidence presented
at trial was so deficient that no reasonable trier of fact could have found the essential elements of the
offense beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319,
99 S. Ct. 2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994). Moreover, the State



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is entitled to the strongest legitimate view of the evidence and all reasonable inferences which may
be drawn therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992).

                                      A. Aggravated Assault

        The Appellant was charged in a two-count indictment, which alleged the aggravated assault
of Josephine Woodson (1) by use of a deadly weapon, Tennessee Code Annotated § 39-13-
102(a)(1)(B) (1997), or, alternatively, (2) by causing serious bodily injury, Tennessee Code
Annotated § 39-13-102(a)(1)(A) (1997). The jury returned their verdict of guilty based upon their
finding of use of a deadly weapon. As previously noted, the Appellant was also convicted of
especially aggravated robbery which requires proof of use of a deadly weapon. See Tenn. Code Ann.
§ 39-13-403(a) (1997). At this juncture, and although not raised as an issue, we are constrained to
examine the record to determine whether the facts support separate convictions for aggravated
assault and especially aggravated robbery. An appellate court may consider issues not presented for
review if they rise to the level of “plain error.” Tenn. R. Crim. P. 52(b); see also Tenn. R. App. P.
13(b). Following our review, we find, as plain error, that the Appellant's convictions for aggravated
assault and especially aggravated robbery violate principles of double jeopardy.

       The issue of multiple punishments arising from a single criminal episode was addressed by
our supreme court in State v. Phillips, 924 S.W.2d 662 (Tenn. 1996). To determine whether offenses
are multiplicitous, several general principles must be considered:

        (1) A single offense may not be divided into separate parts; generally, a single
        wrongful act may not furnish the basis for more than one criminal prosecution;

        (2) If each offense charged requires proof of a fact not required in proving the other,
        the offenses are not multiplicitous; and

        (3) Where time and location separate and distinguish the commission of the offenses,
        the offenses cannot be said to have arisen out of a single wrongful act.

Id. at 665.

        In this case, the physical acts of the Appellant which established the element of “use of a
deadly weapon” permitting a conviction for especially aggravated robbery were the same physical
acts which supported proof of the element of “use of a deadly weapon” for the Appellant’s
conviction of aggravated assault. Under principles of double jeopardy relating to multiple
convictions, only one offense was committed and only one conviction may stand because the
offenses arose out of “a single wrongful act.” Accordingly, the Appellant's conviction for aggravated
assault is vacated.




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                 B. Aggravated Burglary and Especially Aggravated Robbery

        A person is guilty of aggravated burglary if that person, without the effective consent of the
property owner, enters a habitation with intent to commit a theft. Tenn. Code Ann. §§
39-14-402(a)(3), -403(a) (1997). Especially aggravated robbery is the intentional or knowing theft
of property from the person of another by violence or putting the person in fear, accomplished with
a deadly weapon, and the victim suffers serious bodily injury. Tenn. Code Ann. §§ 39-13-403(a)
(1997). The Appellant’s insufficiency argument for these offenses is based upon his alibi evidence
produced at trial versus the identification evidence produced by the State. The State presented two
eyewitnesses, Josephine Woodson and Linda Fly, who positively identified the Appellant. The State
also established that the Appellant’s pager was found at the home of the victim. The Appellant
provided an alibi witness, Jacqueline Yancey, his mother, who testified that the Appellant was at
home asleep on his couch during the time of the robbery. Additionally, Lawanda Davis, the
Appellant’s girlfriend, attempted to explain the circumstances surrounding the pager.

        The determination of the weight and credibility of the testimony of witnesses and
reconciliation of conflicts in that testimony are matters entrusted exclusively to the trier of fact, and
not this court. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984). Like any other fact at trial, an
alibi defense presents an issue of fact determinable by the jury. Cole v. State, 215 S.W.2d 824, 825
(Tenn. 1948); Smith v. State, 566 S.W.2d 553, 556 (Tenn. Crim. App. 1978). Likewise, the
credibility of eyewitness testimony identifying the accused as the perpetrator of the criminal offense
for which he stands trial is a question of fact for the determination of the jury upon consideration of
all competent proof. State v. Strickland, 885 S.W.2d 85, 87 (Tenn. Crim. App.1993). The credible
testimony of one identification witness is sufficient to support a conviction if the witness viewed the
accused under such circumstances as would permit a positive identification to be made. Id. at 87-88.
The jury, as the arbiters of the credibility of the witnesses, chose to accredit the testimony of the
State's witnesses and reject the claims of the Appellant. The Appellant has had his day in court.
This court may not reevaluate the evidence or substitute its inferences for those drawn by the trier
of fact from the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.1978).

        The positive identification testimony of the witnesses, Josephine Woodson and Linda Fly,
sufficiently supports the Appellant’s convictions; their testimony is not so improbable or
unsatisfactory as to create a reasonable doubt of the Appellant’s guilt. Accordingly, we find the
evidence was sufficient to support the jury’s finding that the Appellant entered the residence of the
victim with the intent to commit a theft. Moreover, the proof established that the Appellant’s
robbery of the victim of $230 was accomplished by use of a deadly weapon and caused serious
bodily injury. Accordingly, we find this issue without merit.

                                  II. Suppression of Photo Array

        Second, the Appellant contends that “the trial court erred in denying [his] motion to suppress
photographic spread identification and to prohibit ‘in court’ identification made by one of the
[S]tate’s witnesses on the ground that such identification was unduly suggestive.” Specifically, he


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argues that the photo identification procedure was unduly suggestive because the officer indicated
to the viewer that a specific photograph was the one that was to be identified. In the Appellant’s
brief, he asserts that,

       there was no dispute that Ms. Fly was not positive about her identification until she
       told the officer that the assailant had a hat on and the officer used his hand to modify
       the picture that Ms. Fly picked out as possibly looking like the assailant. Only then
       was Ms. Fly positive about her identification. The proper method would have been
       to put forth pictures of possible suspects with hats on so as not to be suggestive.

        At trial, the witness, Ms. Fly, testified that she did not have any problem identifying the
Appellant when she viewed the photographic array. Upon identifying the Appellant from the
photographs, Ms. Fly stated, “that’s him, . . . but he had a hat on.” The officer then covered the
Appellant’s forehead with his hand. Thereafter, Ms. Fly definitively identified the Appellant. The
trial court denied the Appellant’s motion to suppress, ruling that the officer’s action was not unduly
suggestive.

         As pronounced by the United States Supreme Court, a violation of due process has occurred
if the identification procedure is so suggestive as to give rise to a very substantial likelihood of
irreparable misidentification. Neil v. Biggers, 409 U.S. 188, 198, 93 S. Ct. 375, 381-82 (1972). This
standard has been adopted by our state's supreme court. Bennett v. State, 530 S.W.2d 511, 512-15
(Tenn.1975). The trial court must view the pre-trial identification procedure under the totality of the
circumstances. State v. Proctor, 565 S.W.2d 909, 911, (Tenn. Crim. App.), perm to appeal. denied,
(Tenn. 1978). Factors to be considered in determining whether a violation of due process has
occurred are:

       (1) the opportunity of the witness to view the criminal at the time of the crime;

       (2) the witness' degree of attention at the time of the crime;

       (3) the accuracy of the witness’ prior description of the criminal;

       (4) the level of certainty demonstrated at the confrontation; and

       (5) the time elapsed between the crime and the confrontation.

Biggers, 409 U.S. at 199, 93 S. Ct. at 382; see also State v. Philpott, 882 S.W.2d 394, 400 (Tenn.
1994). Unless the evidence preponderates against the judgment, the trial court's findings of fact
following a suppression hearing are conclusive on appeal. State v. Davis, 872 S.W.2d 950, 956
(Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1993).




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        In the instant case, the record clearly supports the trial court's finding that the photo
identification procedure was not unduly suggestive. Ms. Fly’s identification was not aided by the
officer. She identified the Appellant before the officer placed his hand over the Appellant’s
forehead. Therefore, viewing the totality of the circumstances, the trial court properly denied the
motion to suppress. This issue is without merit.

                                   III. Special Jury Instruction

        Third, the Appellant argues that the “trial judge erred in refusing to grant the defendant’s
special request for instruction.” He contends that the trial court’s jury instruction on identity
pursuant to State v. Dyle,899 S.W.2d 607, 612 (Tenn. 1995), did “not adequately cover [his] theory
as to the suggestiveness of the identification procedure, and therefore, was inadequate.” The
Appellant based upon Sloan v. State, 584 S.W.2d 461, 468-470 (Tenn. Crim. App. 1978), requested
the following charge:

       The Court should, as an additional factor stated in T.P.I. - - - Crim. 42.05. Identity,
       state that if you, the Jurors, find that the procedures used in the identification of the
       Defendant by the photographic spread was “suggestive” to the extent that they give
       rise to very substantial likelihood of irreparable misidentification, then you must
       disregard the identification.

         In Dyle, the Tennessee Supreme Court, to account for prejudicial influences on an eyewitness
identification, promulgated a pattern jury instruction on identity, which instructed the jury to
consider several factors before assessing the weight to be given to a witness’ identification of a
defendant. Dyle, 899 S.W.2d at 612 (factors to be considered include: witness’ capacity and
opportunity to observe the offender; the degree of certainty expressed by the witness regarding the
identification; the occasions on which the witness failed to make an identification of the witness;
the occasions on which the witness made an identification that was consistent with the identification
at trial; and whether the identification is the product of the witness’ own recollection (emphasis
added)). The Dyle instruction sufficiently addressed the Appellant’s issue of “suggestiveness” raised
at trial. When a trial court's instructions correctly charge the applicable law, the court does not err
by refusing special requests. Tillery v. State, 565 S.W.2d 509, 511 (Tenn. Crim. App.1978). This
issue is without merit.

                                           IV. Sentencing

        Finally, the Appellant asserts that “the trial judge erred in imposing a sentence of twenty-five
years as to the conviction for especially aggravated robbery.” Rule 27(a) of the Tennessee Rules of
Appellate Procedure requires the brief of the Appellant to contain, under appropriate headings, the
“issues presented for review; ...a statement of facts, setting forth the facts relevant to the issues
presented for review with appropriate references to the record; and an argument . . . setting forth the
contentions of the appellant with respect to the issues presented, and the reasons therefor.” Tenn.
R. App. P. 27(a)(4), (6), (7). Further, it is essential that the Appellant state with particularity the


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grounds upon which he seeks relief. The Appellant does not provide this court with a legal argument
setting forth his contentions with respect to the sentencing issue presented. In his brief, he simply
adopts counsel’s statements made at sentencing. We conclude that this issue has been waived
because the Appellant’s brief does not conform with Rule 27(a) of the Tennessee Rules of Appellate
Procedure.

                                         CONCLUSION

        Based upon the foregoing, we find that the evidence was sufficient to find the essential
elements of aggravated burglary and especially aggravated robbery beyond a reasonable doubt. The
trial court did not err in denying the Appellant’s motion to suppress the photographic identification
or the Appellant’s request for a special jury instruction on identity. We further conclude that the
sentencing issue raised by the Appellant is waived. Accordingly, the judgments of conviction for
aggravated burglary and especially aggravated robbery are affirmed. We conclude, however, that
the Appellant's conviction for aggravated assault violates principles of double jeopardy.
Accordingly, the conviction for aggravated assault is reversed and dismissed.




                                                      ___________________________________
                                                      DAVID G. HAYES, JUDGE




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