              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT JACKSON

                            MARCH 1999 SESSION                 FILED
STATE OF TENNESSEE,             *      C.C.A. # 02C01-9804-CR-00106

      Appellee,                 *      SHELBY COUNTY
                                                                July 16, 1999
VS.                             *      Hon. James C. Beasley, Jr., Judge

LESTER WILLIAMS,                *      (Aggravated Robbery)
                                                               Cecil Crowson, Jr.
      Appellant.                *
                                                              Appellate Court Clerk




For Appellant:                         For Appellee:

Tony N. Brayton                        Paul G. Summers
Assistant Public Defender              Attorney General and Reporter
201 Poplar Avenue, Suite 2-01
Memphis, TN 38103                      Georgia Blythe Felner
(on appeal)                            Counsel for the State
                                       Criminal Justice Division
Of counsel:                            425 Fifth Avenue North
                                       Nashville, TN 37243-0493
A.C. Wharton, Jr.
Shelby County Public Defender          David C. Henry
                                       Assistant District Attorney General
K. Leslie Mozingo                      Shelby County District
Assistant Public Defender              Criminal Justice Complex
201 Poplar Avenue, Second Floor        201 Poplar Avenue, Suite 301
Memphis, TN 38103                      Memphis, TN 38103
(at trial)




OPINION FILED:__________________________



AFFIRMED



GARY R. WADE, PRESIDING JUDGE
                                      OPINION

             The defendant, Lester Wililams, was convicted of aggravated robbery.

The trial court imposed a Range II, twenty-year sentence. In this appeal of right, the

defendant challenges the sufficiency of the identity evidence and argues that the

sentence is excessive.



             We affirm the judgment of the trial court.



             On March 12, 1997, real estate agent Mary Ella Thornton parked in the

driveway of one of her listed residences in Memphis in order to check the door lock.

When she returned to her vehicle, the defendant stepped out of a car that had

followed her into the driveway. The defendant walked towards Ms. Thornton, who

initially believed that he was a prospective buyer, displayed a gun, ordered her from

her vehicle, and took her purse and car keys. The defendant then left driving Ms.

Thornton's car. The driver of the other vehicle also drove away. Although unable to

identify the driver of the vehicle in which the defendant had arrived, Ms. Thornton

described her assailant to officers as a black male, approximately six feet, three

inches tall, and weighing 160 pounds. She was able to identify the defendant in a

photographic lineup at both the preliminary hearing and at trial.



              When questioned by the police, the defendant admitted that he had

been in the victim's vehicle for approximately one hour and forty minutes after it was

stolen. He stated that Milton Logan, who he identified as Junior, had offered him a

ride in the vehicle and driven him to Ace Check Cashing. The defendant claimed

that he was unaware that the car had been stolen but admitted that he had never

seen Logan in possession of the vehicle at any time before the date of the robbery.




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              Initially, the defendant complains that the identification evidence was

insufficient to justify a guilty verdict. The victim had acknowledged that her primary

focus was on the weapon during the course of the robbery and she also conceded

that she was unable to remember whether the gun had one or two barrels. The

defendant contends that the victim's identifications during the photographic lineup

and at the preliminary hearing were uncertain and that any eyewitness identification

is inherently untrustworthy:

              The vagaries of eyewitness identification are well-known;
              the annals of criminal law are rife with instances of
              mistaken identification. Mr. Justice Frankfurter once
              said, "What is the worth of identification testimony even
              when uncontradicted? The identification of strangers is
              proverbially untrustworthy. The hazards of such
              testimony are established by a formidable number of
              instances...."

United States v. Wade, 388 U.S. 218, 228-29 (1967). The defendant does not

allege that the trial court failed to provide accurate instructions on the question of

identity.



              When there is a challenge to the sufficiency of the evidence, well-

established guidelines apply limiting the scope of appellate review. The state, of

course, is entitled to the strongest legitimate view of the evidence and all reasonable

inferences which might be drawn therefrom. State v. Cabbage, 571 S.W.2d 832

(Tenn. 1978). This court may neither reweigh nor reevaluate the evidence. Id. at

836. Nor may a court substitute its inference for those drawn by the trier of fact from

the evidence. Liakas v. State, 286 S.W.2d 856 (Tenn. 1956). When the sufficiency

of the evidence is challenged, the relevant question is whether, after reviewing the

evidence in the light most favorable to the state, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. State v.

Williams, 657 S.W.2d 405 (Tenn. 1983); Tenn. R. App. P. 13(e).



                                            3
              In this instance, the victim, when shown a photograph of Logan

acknowledged that she was unable to make a positive identification. When,

however, shown a variety of other photographs, she was immediately able to identify

the defendant as her robber. The defendant concedes that she did so again at the

preliminary hearing and a final time at trial. Because there was a positive

identification by the victim and the defendant does not quarrel with the instructions

provided by the trial court in that regard, the evidence is clearly sufficient to establish

that a rational trier of fact could conclude guilt on the part of the defendant. Jackson

v. Virginia, 443 U.S. 307 (1979).



              Next, the defendant complains that the trial court imposed an

excessive sentence by erroneously determining that the defendant was a leader in

the commission of an offense involving two or more criminal actors. Tenn. Code

Ann. § 40-35-114(2). He argues that the "simple fact that another person drove

[the defendant] to the scene ... does not suggest that [he] was a leader in the

commission of this offense." See State v. Buckmeir, 902 S.W.2d 418, 423 (Tenn.

Crim. App. 1995). Furthermore, the defendant asserts that the trial court should

have concluded that because the defendant assisted authorities in uncovering an

unrelated offense by another person, a mitigating factor was present. See Tenn.

Code Ann. § 40-35-113(9). He argues that he is entitled to the application of

mitigating circumstances if he cooperated with the investigating officers even if the

state acquired the identity of the other perpetrator through other sources.



              When there is a challenge to the length, range, or manner of service of

a sentence, it is the duty of this court to conduct a de novo review with a

presumption that the determinations made by the trial court are correct. Tenn. Code

Ann. § 40-35-401(d). This presumption is "conditioned upon the affirmative showing


                                            4
in the record that the trial court considered the sentencing principles and all relevant

facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). "If

the trial court applies inappropriate factors or otherwise fails to follow the 1989

Sentencing Act, the presumption of correctness falls." State v. Shelton, 854 S.W.2d

116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission Comments provide

that the burden is on the defendant to show the impropriety of the sentence.



              Our review requires an analysis of (1) the evidence, if any, received at

the trial and sentencing hearing; (2) the presentence report; (3) the principles of

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the

nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)

any statements made by the defendant in his own behalf; and (7) the defendant's

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and

-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).



              At the time of this offense, the presumptive sentence was the

minimum in the range if there were no enhancement and mitigating factors. Tenn.

Code Ann. § 40-35-210(c). Should the trial court find mitigating and enhancement

factors, it must start at the minimum sentence in the range and enhance the

sentence based upon any applicable enhancement factors, and then reduce the

sentence based upon any appropriate mitigating factors. Tenn. Code Ann. § 40-35-

210(e). The weight given to each factor is within the trial court's discretion provided

that the record supports its findings and it complies with the 1989 Act. See Ashby,

823 S.W.2d at 169. The trial court should, however, make specific findings on the

record which indicate its application of the sentencing principles. Tenn. Code Ann.

§ 40-35-209, -210.




                                            5
              A Range II sentence for a Class B felony must be within twelve to

twenty years. Tenn. Code Ann. § 40-35-112(b)(2). The trial court imposed the

maximum sentence. The trial court found six enhancement factors applicable. The

trial court did not give any weight to three of the factors because they were elements

of the offense but it weighed heavily the defendant's previous history of criminal

convictions and his previous unwillingness to comply with conditions of a sentence

involving release. See Tenn. Code Ann. § 40-35-114(1), (8).



              Because the proof established that there were two actors involved in

the robbery and that the defendant confronted the victim, stole her purse, and drove

away in her vehicle, the defendant's participation was sufficient to establish a role of

leadership in the crime. In State v. Hicks, 868 S.W.2d 729, 731 (Tenn. Crim. App.

1993), this court observed that more than one criminal can be a leader in the

commission of the offense. That another perpetrator drove the defendant to the

scene or was a leader in the commission of the crime would not disqualify the

defendant as a leader. In our view, the trial court properly applied this enhancement

factor.



              Moreover, the defendant has not established that the sentence should

be reduced just because he assisted authorities regarding an unrelated offense.

Tenn. Code Ann. § 40-35-113(9). As the trial court observed, the defendant

provided no assistance in solving the case in which he was convicted; he denied

knowing that the vehicle had been stolen and provided no information about the

robbery of the victim. While the defendant may have been entitled to some

consideration for the limited information supplied pursuant to Tenn. Code Ann. § 40-

35-113(13), the trial court would have been justified in assigning little weight to that

mitigation factor. See State v. Michael Hurt, No. 01C01-9306-CC-00189 (Tenn.


                                            6
Crim. App., at Nashville, Dec. 9, 1993). In context, the Range II, twenty-year

sentence is entirely appropriate.



             Accordingly, the judgment is affirmed.



                                         ________________________________
                                         Gary R. Wade, Presiding Judge

CONCUR:



_____________________________
Joseph M. Tipton, Judge



_____________________________
Thomas T. Woodall, Judge




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