         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs February 6, 2001

                STATE OF TENNESSEE v. LAWRENCE WYATT

                      Appeal from the Circuit Court for Madison County
                             No. 99-172   Roger A. Page, Judge



                    No. W2000-01672-CCA-R3-CD - Filed March 19, 2001


The defendant appeals from his convictions for conspiracy to commit aggravated robbery and
facilitation of aggravated robbery. He contends that the evidence is insufficient to support his
convictions and that his sentences are excessive. We affirm the judgments of the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which JERRY L. SMITH, and JOE G.
RILEY, JJ., joined.

Pamela J. Drewery (on appeal) and Ramsdale O’DeNeal (at trial), Jackson, Tennessee, for the
appellant, Lawrence Wyatt.

Paul G. Summers, Attorney General and Reporter; Laura E. McMullen, Assistant Attorney General;
James G. Woodall, District Attorney General; and James W. Thompson, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

        The defendant, Lawrence Wyatt, appeals as of right from his convictions by a Madison
County Circuit Court jury for conspiracy to commit aggravated robbery and facilitation of aggravated
robbery, Class C felonies. The trial court sentenced the defendant to five years on the conspiracy
count and four years on the facilitation count and ordered the sentences to run concurrently. The
defendant argues that (1) the evidence is insufficient to support his convictions because the
accomplices’ testimony was not corroborated and (2) his sentences are excessive because the trial
court erred in its application of enhancement and mitigating factors and in its denial of alternative
sentencing.

        At trial, Ronald James testified as follows: On November 20, 1998, he was working as a
clerk at the Econo Lodge on the Highway 45 Bypass in Madison County. The motel’s doors were
locked, but a window with a tray enabled the clerks to wait on customers who were outside. He was
ending his shift just before midnight when a black male and black female approached the motel’s
window. The male was around six feet tall, slim, and wearing a stocking over his head. The female,
who also had something over her head, said, “This is a robbery. We want your money,” and they
placed a small pistol on the window’s tray. He left the window and told Jerry Replogle, a co-worker,
about the robbers. They walked into another office and told the owner about the robbers, and the
owner then called the police. The robbers did not take anything from the Econo Lodge and were
gone before the police arrived.

         Jerry Replogle testified as follows: On November 20 and 21, 1998, he was working at the
Econo Lodge on the Highway 45 Bypass. He was relieving Ronald James from his shift around
midnight when a black female and black male, who were wearing hoods, approached the motel’s
window. Mr. James went to the window, and the female said, “Let us in. We’ve got a gun.” At
first, he thought the people at the window were playing a prank, but then Mr. James left the window
area and told him that the people had a gun. He then saw that the man was pointing a small .22 or
.25 caliber automatic gun at the security camera. He and Mr. James went into a back room and told
the manager about the robbers, and the manager called the police. The robbers did not take anything
and left before the police arrived.

        Mr. Replogle identified the defendant as the perpetrator by the defendant’s eyes, but he
admitted that the defendant looked smaller than the man who had attempted to rob the motel. He
stated that during the attempted robbery, he only saw the defendant for three or four seconds, that
the defendant had on a heavy coat, and that he was not able to determine the defendant’s build at that
time.

        Marquay Williamson testified as follows: On November 21, 1998, she was working as a
cashier at Jerry’s Oil Citgo on Hollywood Avenue. Around 1:00 a.m., when a co-worker was outside
and nobody was in the store, a black female and black male came into the store. The female was
short, and the male was “really big and had a lot of hair.” The man pointed a small, black .22 or .25
caliber gun at her, and the woman demanded the money from the cash register. She gave the woman
the cash register’s drawer, which contained over five hundred dollars. The robbers left in a maroon,
four-door car that had “rails.” She could see that there were other people in the car but could not see
them well enough to describe them.

        Ms. Williamson testified that she knew Carmella Poole, a co-defendant, and that Ms. Poole
came into the store around 11:00 p.m. that evening. She stated that Ms. Poole bought a beer and then
left and that she did not see Ms. Poole again that night.

        Officer Edward McMullen of the Jackson Police Department testified as follows: On
November 21, 1998, at 12:05 a.m., he was dispatched to the Econo Lodge. Two clerks gave him a
vague description of the robbers but a good description of the car the robbers used. He then placed
a be-on-the-lookout (BOLO) call. About one hour later, a BOLO call from Jerry’s Oil Citgo
described the same car, a maroon Grand Am with a luggage rack on the trunk. About five minutes
later, he spotted a car that matched the description. He followed the car until backup arrived and


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then stopped the car. Four people were in the car – a black female in the driver’s seat, a black male
in the front passenger seat, a black female in the driver-side backseat, and a black male in the
passenger-side backseat.

        Officer McMullen identified the defendant as the male in the backseat and said that a cash
drawer was on the rear floorboard between the defendant’s feet. About five hundred forty dollars
and a wig were recovered from the drawer. Also, a small, grayish .25 caliber gun was recovered
from underneath the drawer. A stocking cap was recovered from Sharon Chism, the female driver,
and a stocking was recovered at booking from the defendant.

        On cross-examination, Officer McMullen admitted that the clerks from Econo Lodge were
unable to give a good physical description of the robbers. He also stated that the male in the front
seat of the car was large framed and that one of the males had on a heavy coat, but he could not
remember which one. He admitted that he touched the gun and the cash drawer with his bare hands
and that fingerprint analysis was not ordered on either piece of evidence.

        Sergeant Belinda Coleman of the Jackson Police Department testified as follows: On
November 21, 1998, she was dispatched as the crime scene technician for the defendant’s case. A
cash register drawer, which contained about five hundred dollars and a wig, was recovered from the
passenger-side rear floorboard of the burgundy, Pontiac Grand AM, and a .25 caliber automatic
pistol was found underneath the drawer. On cross-examination, she testified that she did not
remember what the suspects were wearing that night.

        Sharon Chism testified as follows: She pled guilty to the November 21, 1998 attempted
aggravated robbery of the Econo Lodge and the aggravated robbery of Jerry’s Oil and was serving
an eight-year sentence, which the state had recommended in return for her cooperation and truthful
testimony. On the night in question, she was with Xavier Chism, who was her brother, Carmella
Poole, and the defendant. Earlier in the evening, she and the defendant discussed robbing some
stores, and the defendant said that he was willing. She drove the defendant’s burgundy Grand AM
to the Econo Lodge, where she and the defendant, wearing stocking caps, approached the motel’s
window. The defendant had a small .25 automatic pistol, which she had given to him earlier in the
evening, and he demanded money from the clerks. The clerks ran to a back room, at which point,
they left, fearing the police would be there soon. Ms. Poole and Mr. Chism stayed in the car and did
not know what she and the defendant were doing.

        Ms. Chism testified that she then drove to Jerry’s Oil on Hollywood to determine whether
they could rob it. Ms. Poole knew that they were going to rob the store but did not agree to
participate, except to go into the store to see if anybody was inside. When Ms. Poole returned to the
car, another customer arrived, resulting in their leaving. They drove to another Jerry’s Oil to see if
they could rob it but determined that the employees were watching them too closely. They then
returned to the Jerry’s Oil on Hollywood, and she and the defendant went into the store wearing
stockings over their heads. While she demanded the money, the defendant pointed the .25 automatic
pistol at the cashier. The cashier gave her the drawer, and they left. When they were in the car, she


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gave the drawer to the defendant, who was in the passenger-side backseat, and told him to count the
money. Shortly thereafter, the police stopped them and arrested them.

       On cross-examination, Ms. Chism stated that her brother was about six feet, two inches tall.
She denied that her brother, not the defendant, went with her to rob the Econo Lodge and Jerry’s Oil.

         Carmella Poole, who was a co-defendant at the beginning of the trial but pled guilty before
her testimony, testified as follows: She pled guilty to facilitating aggravated robbery and was
sentenced to seven years on intensive probation. She had agreed to cooperate with the state and
testify truthfully. On November 21, 1998, she went to the Econo Lodge with Sharon Chism, Xavier
Chism, and the defendant. Ms. Chism and the defendant went into the motel, and she and Mr. Chism
stayed in the car. Ms. Chism wore a stocking over her face and had a small handgun, although she
admitted that in a prior statement, she had said that Ms. Chism gave the gun to the defendant. One
to two minutes later, Ms. Chism and the defendant returned. They drove to Jerry’s Oil, where she
went inside and bought a beer. They left Jerry’s Oil but returned about an hour and a half later. Ms.
Chism, who was wearing a hat, and the defendant went into the store and returned to the car with a
cash register drawer. Ms. Chism drove and the defendant sat in the passenger-side backseat. On
cross-examination, Ms. Poole stated that Xavier Chism, who was wearing a large, black leather coat,
did not get out of the car at either the Econo Lodge or Jerry’s Oil.

        Investigator Jerald Golden of the Jackson Police Department testified that during his
investigation of the attempted robbery and robbery, the defendant made the following statement:

               On 11/20/98, I went over to Xavier Chism’s house on North Hayes across
       from the Super Valu Store. This was ten-thirty p.m. or eleven p.m.
               When I got there Xavier Chism, Sharon Chism, and some other black female
       was there. We all got into my mother’s 1991 Grand AM and went riding around.
               Sharon was driving the car and she drove to the Econo Lodge on the 45
       Bypass. Sharon and me got out of the car, went to the motel. I had a hood over my
       face and Sharon had some type of mask over her face. I had a pistol and when we
       went in Sharon had gave the pistol to me.
               There was two white males in the office area. Sharon tried to put the gun
       under the window but it wouldn’t go under it. The men then ran into the back room
       and we ran out of the motel to the car and left. We didn’t get anything from the
       motel.
               We went to Jerry’s Oil Company on Hollywood. Sharon was driving. I got
       out with Sharon and went into a store. I was wearing blue jeans, a black shirt, a black
       velvet coat. Sharon was wearing some type of mask.
               When we got into the store, Sharon said something to the black female that
       was behind the counter. I had a gun in my hand. The lady gave Sharon the cash
       register drawer and we left the store and got back into my mother’s Pontiac Grand
       AM and left.



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               Sharon was driving. Xavier and another black female was in the car looking
       out for us. It was Sharon’s idea to do these robberies. The police stopped us on
       Hollywood near the graveyard. The gun belonged to Sharon.

Investigator Golden said that he reduced the statement to writing after the defendant told him what
had happened. The defendant then read the statement, initialed each paragraph, and signed at the
bottom.

        The defendant testified that he had planned to go out with Xavier Chism but that when he
went to get him, Sharon Chism asked if she and one of her friends could join them. He said that he
let Ms. Chism drive because he had taken cold medication. He stated that he fell asleep and that
when he awoke, Ms. Chism and Mr. Chism were coming out of the Econo Lodge. He said that he
got out of the car, and Ms. Chism handed him a gun, but he dropped it. He said that Ms. Chism
picked up the gun and they left. He testified that they went to Jerry’s Oil on Highway 70 but left and
went to Jerry’s Oil on Hollywood, where Ms. Chism’s friend bought a beer. He said that they left
that store and drove around for about an hour, during which time he fell asleep. He stated that when
he awoke, they were at Jerry’s Oil on Hollywood and he went inside the store. He said that he saw
Ms. Chism in the store with a gun and Mr. Chism standing at the door. He testified that he returned
to the car and that when Ms. Chism got in the car, she handed him a cash register drawer and a pistol,
both of which he threw under the seat.

         The defendant said that Xavier Chism was a little taller than he and weighed about two
hundred fifteen pounds. He stated that Mr. Chism was wearing black jeans, a dress shirt, a sweater,
and a long fluffy scarf . He said that he was wearing blue jeans and a black shirt but not a coat. He
testified that he never discussed and did not know that Ms. Chism planned to rob stores that night.
He said that the statement read by Investigator Golden was not what he had said nor was it what he
had read and signed. He admitted that the initials and signature on the statement were his.

       Investigator Golden was recalled and testified that the statement which he read into evidence
was not forged and that he watched the defendant initial and sign the statement. He admitted that
no other officers were present during the interview and that he did not record the interview.

        Based upon the foregoing evidence, the jury convicted the defendant of conspiracy to commit
aggravated robbery of Jerry’s Oil and of facilitating the aggravated robbery of Jerry’s Oil. The jury
found the defendant not guilty on the counts for attempted aggravated robbery of the Econo Lodge
and for conspiracy to commit aggravated robbery of the Econo Lodge.

                            I. SUFFICIENCY OF THE EVIDENCE

        The defendant contends that the evidence is insufficient to support his convictions, arguing
that his convictions were based upon the uncorroborated testimony of his accomplices. The state
argues that the accomplices’ testimony was sufficiently corroborated. We agree.



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        Our standard of review when the sufficiency of the evidence is questioned 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 reweigh 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).

        The robbery in this case was aggravated because it was accomplished with a deadly weapon.
See Tenn. Code Ann. § 39-13-402(1). Robbery is defined as “the intentional or knowing theft of
property from the person of another by violence or putting the person in fear.” Tenn. Code Ann. §
39-13-401(a). Conspiracy is committed “if two (2) or more people, each having the culpable mental
state required for the offense which is the object of the conspiracy and each acting for the purpose
of promoting or facilitating commission of an offense, agree that one (1) or more of them will engage
in conduct which constitutes such offense.” Tenn. Code Ann. § 39-12-103(a). Finally, “[a] person
is criminally responsible for facilitation of a felony if, knowing that another intends to commit a
specific felony, but without the intent required for criminal responsibility under § 39-11-402(2), the
person knowingly furnishes substantial assistance in the commission of the felony.” Tenn. Code
Ann. § 39-11-403(a).

       It is well settled in Tennessee that a conviction may not be based upon the uncorroborated
testimony of an accomplice. See State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994) (citations
omitted). To corroborate the testimony of an accomplice,

       there must be some fact testified to, entirely independent of the accomplice's
       testimony, which, taken by itself, leads to the inference, not only that a crime has
       been committed, but also that the defendant is implicated in it; and this independent
       corroborative testimony must also include some fact establishing the defendant's
       identity. This corroborative evidence may be direct or entirely circumstantial, and
       it need not be adequate, in and of itself, to support a conviction; it is sufficient to
       meet the requirements of the rule if it fairly and legitimately tends to connect the
       defendant with the commission of the crime charged. It is not necessary that the
       corroboration extend to every part of the accomplice's evidence. The corroboration
       need not be conclusive, but it is sufficient if this evidence, of itself, tends to connect
       the defendant with the commission of the offense, although the evidence is slight and
       entitled, when standing alone, to but little consideration.

Hawkins v. State, 4 Tenn. Crim. App. 121, 133, 469 S.W.2d 515, 520 (1971) (citations omitted).
Whether an accomplice’s testimony is sufficiently corroborated is a matter entrusted to the jury.
Stanley v. State, 189 Tenn. 110, 117-18, 222 S.W.2d 384, 387 (1949).




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        The evidence viewed in the light most favorable to the state reveals, through the accomplices’
testimony, that the defendant and Sharon Chism talked about robbing stores before they went out for
the evening with Xavier Chism and Carmella Poole in the defendant’s maroon, Pontiac Grand AM.
The defendant and Ms. Chism went to the Econo Lodge. The defendant was wearing a stocking on
his head, had a .25 caliber automatic pistol that Ms. Chism had given him, and demanded money.
After the robbery failed, they drove to Jerry’s Oil on Hollywood, where Ms. Poole entered the store
to buy beer and to see if anybody was in the store. When another customer arrived, they left the store
and went to another Jerry’s Oil to see if they could rob it. They determined that they could not, and
they returned to the Jerry’s Oil on Hollywood. Then Ms. Chism and the defendant entered the store,
and Ms. Chism demanded money while the defendant pointed a gun at the cashier. The cashier gave
Ms. Chism the cash register drawer, and they left. Ms. Chism, who was driving, gave the defendant,
who was in the backseat on the passenger-side, the drawer to count the money. The police
apprehended them a short time later.

        This testimony was sufficiently corroborated by the testimony of other witnesses. First, this
testimony is substantially corroborated by the defendant’s statement that was introduced through
Investigator Golden. Further, Officer McMullen and Sergeant Coleman testified that the cash
register drawer and a .25 caliber automatic pistol were recovered from the rear passenger-side
floorboard, directly below where the defendant was sitting in the car. Also, Officer McMullen
testified that a stocking was recovered from the defendant’s person at booking. Finally, the
testimony of Ronald James and Jerry Replogle corroborated the accomplices’ version of the
attempted robbery of the Econo Lodge, and the testimony of Marquay Williamson corroborated the
accomplices’ version of the robbery of Jerry’s Oil. The defendant’s contention that the accomplices’
testimony was not corroborated is without merit.

       A rational jury could have found beyond a reasonable doubt that the parties conspired to rob
business establishments on the night of the offenses. Likewise, it could have found that the
defendant, knowing that Ms. Chism intended to commit the aggravated robbery, knowingly furnished
substantial assistance to that end.

                                        II. SENTENCING

        The defendant contends that the trial court erred in its application of enhancement and
mitigating factors and in its denial of alternative sentencing. The state argues that the trial court
properly sentenced the defendant. We agree with the state.

       At the sentencing hearing, Jane Kirby of the Department of Children’s Services testified that
she served as the defendant’s case manager after the defendant was adjudicated delinquent for
aggravated kidnapping, aggravated robbery, and aggravated burglary. She stated that the defendant
was sent to a juvenile facility to serve two years but that he was released about six months early
because he earned sentence reduction credits for his good behavior.




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        Kvochun Hou, the victim of the defendant’s juvenile offenses, testified that on the day in
question, he answered his door, and the perpetrators, who had a weapon, forced him into his
bathroom. He stated that he heard noises from other areas of the house and then the perpetrators
took him outside, placed him in the trunk of his car, and drove to a field, where they left him. When
he returned to his house, money and jewelry were missing. He said that he was seventy-nine years
old when this occurred.

       Marioni Lawrence, a juvenile probation officer, testified that she was assigned the
defendant’s juvenile case. She stated that the defendant was remorseful and that the defendant
seemed like a follower who could be easily influenced.

        Bobbie Jean Boyd, the defendant’s mother, testified that if the defendant were released, he
could live with her. Also, she stated that she would make sure that the defendant complied with the
terms of his probation. She admitted that the defendant’s present offenses were committed just two
months after his release from the juvenile facility.

        The defendant testified that on the night of the offenses, he had planned to go out with some
old friends. He said that he did not know Ms. Chism or Ms. Poole and that he did not have anything
to do with the robberies. He stated that it was bad judgment on his part to trust people whom he did
not know and that he should not have allowed Ms. Chism to drive his mother’s car. He stated that
the police officers and his accomplices lied at trial. He admitted to his participation in his juvenile
offenses. The defendant further testified that he was nineteen years old, had obtained his GED, and
planned to attend college. He stated that if he were released, he would comply with all the terms of
his probation.

        The trial court found four enhancement factors applicable to the conspiracy count – that the
defendant has a previous history of criminal convictions or behavior in addition to those necessary
to establish the appropriate range, that the defendant possessed a firearm during the commission of
the offense, that the defendant had no hesitation about committing a crime when the risk to human
life was high, and that the defendant was adjudicated to have committed delinquent acts that would
have been felonies if committed by an adult. See Tenn. Code Ann. § 40-35-114(1), (9), (10), (20).
The trial court found that enhancement factors (1), (10), and (20) applied to the facilitation count.
The trial court found that no mitigating factors applied. The trial court then sentenced the defendant
to five years on the conspiracy count and four years on the facilitation count and ordered the
sentences to run concurrently. Finally, the trial court denied probation, finding that confinement was
necessary to avoid depreciating the seriousness of the offenses. See Tenn. Code Ann. 40-35-
103(1)(B). The trial court commented that robberies were a serious problem in the community.

         When a defendant appeals the length, range, or manner of service of a sentence imposed by
the trial court, this court conducts a de novo review of the record with a presumption that the trial
court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d). The presumption of
correctness is “conditioned upon the affirmative showing 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,


                                                 -8-
169 (Tenn. 1991). The burden of showing that the sentence is improper is upon the appealing party.
Tenn. Code Ann. § 40-35-401(d), Sentencing Commission Comments. However, if the record
shows that the trial court failed to consider the sentencing principles and all relevant facts and
circumstances, then review of the sentence is purely de novo. Ashby, 823 S.W.2d at 169.

        The defendant was sentenced as a Range I, standard offender, for which the applicable range
for a Class C felony is three to six years. Tenn. Code Ann. § 40-35-112(a)(3). The presumptive
sentence for a Class C felony is the minimum in the range when no enhancement or mitigating
factors are present. Tenn. Code Ann. § 40-35-210(c). Procedurally, the trial court is to increase the
sentence within the range based upon the existence of enhancement factors and then reduce the
sentence as appropriate for any mitigating factors. Tenn. Code Ann. § 40-35-210(e). The weight
to be afforded an existing factor is left to the trial court’s discretion so long as it complies with the
purposes and principles of the 1989 Sentencing Act and its findings are adequately supported by the
record. Tenn. Code Ann. § 40-35-210, Sentencing Commission Comments; Ashby, 823 S.W.2d at
169.

         The defendant asserts that the trial court erred in its application of enhancement and
mitigating factors. However, the defendant does not make any argument as to how the trial court
erred. It is not a function of this court to rummage through the record to glean support for a
defendant’s summary assertions. See T.R.A.P. 27(a)(7). In any event, we cannot say from a review
of the record that the trial court abused its discretion in weighing the enhancement factors to increase
the defendant’s sentences for conspiracy to five years and for facilitation to four years.

         The defendant also asserts that the trial court erred in denying him probation. Again, the
defendant does not make any argument as to how the trial court erred. However, we recognize that
the trial court’s cryptic recital of its findings indicates that confinement was based upon the mere fact
that a robbery occurred, an inadequate reason for denying probation. Nevertheless, probation was
properly denied in light of the facts that the defendant was adjudicated delinquent for aggravated
kidnapping, aggravated robbery, and aggravated burglary and that the defendant committed the
present offenses just two months after his release from a juvenile facility. Such does not bode well
for his rehabilitation potential. Confinement may impress upon him the seriousness of his
misconduct. We do not believe that the defendant has carried his burden of showing that the
sentences are improper.

         Based upon the foregoing and the record as a whole, we affirm the judgments of the trial
court.


                                                        ___________________________________
                                                        JOSEPH M. TIPTON, JUDGE




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