          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON               FILED
                           DECEMB ER SESSION, 1998          March 15, 1999

                                                          Cecil Crowson, Jr.
                                                          Appellate C ourt Clerk

STATE OF TENNESSEE,                  )   C.C.A. NO. 02C01-9803-CR-00096
                                     )
            Appellee,                )
                                     )   SHELBY COUNTY
V.                                   )
                                     )
                                     )   HON. BERNIE WEINMAN, JUDGE
GEORGE BROOKS,                       )
                                     )
            Appe llant.              )   (AGGR AVATED ROB BERY )



FOR THE APPELLANT:                       FOR THE APPELLEE:

A.C. WHARTON                             JOHN KNOX WALKUP
District Public Defender                 Attorney General & Reporter

WALKER GWINN                             PETE R M. C OUG HLAN
Assistant Public Defender                Assistant Attorney General
Criminal Justice Center, Suite 201       2nd Floor, Cordell Hull Building
201 Poplar Avenue                        425 Fifth Avenu e North
Memphis, TN 38103                        Nashville, TN 37243

                                         JOH N W. P IERO TTI
                                         District Attorn ey Ge neral

                                         P. T. HOOVER
                                         Assistant District Attorney General
                                         Criminal Justice Center, Suite 301
                                         201 Poplar Avenue
                                         Memphis, TN 38103




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                     OPINION
       The Defendant, George Brooks, appeals as of right follo wing h is conv iction in

the Sh elby C ounty Crim inal Co urt. Th is was Defendant’s second trial surrounding

an incident which oc curred o n Marc h 25, 19 94. Following Defendant’s first trial, he

was convicted of aggra vated rob bery. In an appea l to this court, Defendant argued

that the trial court erred in failing to instruct the jury on the lesser included offense

of aggravated assault.        This court reversed the Defendant’s conviction and

remanded for a new trial on that ba sis. State v. George Brooks, No. 02C01-9602-

CR-00050, Shelby County (Tenn. Crim. App., at Jackson, May 14, 1997). Defendant

was again convic ted of a ggrav ated ro bbery in the second trial. He appeals now on

the basis of insufficiency of evidence regarding proof of Defendant’s identity as the

perpetrator and th at the vic tim’s injuries constitute “serious bodily injury.” We affirm

the judgm ent of the tria l court.



       When an accused challenges the sufficiency of the convicting evidence, the

stand ard is w hethe r, after re viewing the evid ence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reaso nable d oubt. Jack son v. V irginia, 443 U.S. 307, 31 9 (1979).

On appeal, the State is entitled to the strongest legitimate view of the evidence and

all inference s therefro m. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn . 1978).

Because a verdict of guilt rem oves th e pres ump tion of in noce nce a nd rep laces it with

a presumption of guilt, th e acc used has th e burd en in this court of illustrating why the

evidence is insufficient to support the ve rdict returned by the trier of fact. State v.

Tug gle, 639 S.W .2d 913 , 914 (T enn. 19 82); State v. Grace, 493 S.W.2d 474, 476

(Tenn. 19 73).

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       Questions concerning the credibility of the witnesses, the weight and value to

be given the evidence, as well as all factual issues raised by the evide nce, are

resolved by the trier of fact, no t this court. State v. Pappas, 754 S.W.2d 620, 623

(Tenn. Crim. A pp.), perm. to appeal denied, id. (Tenn. 198 7). Nor ma y this court

reweig h or reevalu ate the ev idence . Cabbage, 571 S.W .2d at 835. A jury verdic t

approved by the trial court accredits the State’s witnesses and resolve s all conflicts

in favor of the State. Grace, 493 S.W.2d at 476.



       The Defendant and the victim, Terry Howell, were co-workers at a plant,

United Liquor, in Memphis. On March 25, 1994, the Defen dant as ked the victim to

borrow twenty dollars ($2 0.00), bu t the victim re fused. Following work that day, the

victim went to a friend’s ho me. Arou nd 8:00 p.m ., the victim left his friend’s home

and began to walk towards his home. As the most direct route to his home was

through an alley behind the Defendant’s home, the victim walked through the alley

and was approached by the De fendan t. The D efenda nt again a sked the victim to

borrow twenty dollars ($20.00), but the victim still refused. Defendant then hit the

victim in the fa ce with an un identifia ble bla ck ob ject. Fo llowing the atta ck, the victim

noticed th at sixty dollars ($60.00 ) was m issing from his pock et.



       The victim testified that he was ne arly knoc ked un conscio us by the assau lt.

He was a ble to “stagger” home, where he attempted to recover. When the swelling

and pain p ersiste d, the vic tim we nt to the hosp ital. The victim had sustained two (2)

broken bones to his low er jaw in addition to a b roken nos e. The victim ha d to have

surgery at a later date to insert a metal plate under his left eye. The victim was

under a phys ician’s c are for appro ximate ly one (1) month. He stated that at the time




                                              -3-
of trial his teeth were still numb and h e still had pain in his eye . This testimony of the

victim’s injurie s was u nrefuted by the De fendan t.



       Jerome Smith, a supervis or to both the Defendant and the victim, stated that

on Monday following the incident between these employees, the Defendant arrived

early for work. When the Defendant came in, he said , “You all look ing for Te rry. . .

Terry won’t b e in this m orning beca use I p ut this o n him . . . I’ll bet you anything he

won’t be he re this morning.” When asked to describ e what th at statem ent me ant to

him, Smith e xplained that me ant that D efenda nt had “w hipped [the victim] u p.” The

victim did not show up for work that day and they later found out that he had been

beaten. The Defendant constantly bragged about doing it at first, but later recanted

after he fou nd out h e was g oing to trial.



       Billy March was wo rking with both the Defendant and the victim in March 1994

at United Liquor. On March 28, 1994, Defendant came to work and stated that the

victim would not be there because he “messed him up.” The victim did not show up

for work th at day, bu t did return la ter that sam e week .



       Paul Gray, also an employee of United Liquor, stated that on March 28, 1994,

the Defendant advised him that the victim would not be com ing in to work because

he “took him ou t.” The victim did not co me to w ork that da y.



       This co nclude d the Sta te’s case -in-chief.



       Aquilla Sorrell testified for the defense that she was living with the Defendant

and her four (4) childre n in Ma rch 19 94. So rrell kne w of the victim because he lived

                                               -4-
in the sam e neigh borhoo d. On M arch 25 , 1994, S orrell recalle d that she was not

working and was at home. After working that day, the Defendant came home and

then returned to the store. Defendant was g one a pprox imate ly five (5) minutes and

returned home. She and Defendant stayed home the remainder of the evening. The

victim came over for about ten (10) minutes later that night, and she recalled that he

had not been beaten up or anything when he was there. The next time that the

Defen dant left the ir home was on Saturda y morn ing, Marc h 26, 19 94.



       The Defendant testified that he was living with Aq uilla So rrell in March 1994.

He was working at United Liquo r as a truck driver and knew the victim as a co-

employee. On March 25, 1994, he got off work around 6:30 p.m., then went home.

Defendant went back out to the store, but was only gone a few minutes.                  He

described that he was really tired and went to sleep after returning home. Defendant

did not recall the victim coming over that evening. When Defendant got to work on

the following Monday morning, another employee told him that he had been accused

of robbing the victim. Defendant denied robbing or beating the victim.



       Regarding the sufficien cy of the ev idence , Defend ant con tends tha t the State

failed to prove his identity in the attack upon the victim. In addition to the victim’s

identification of the Defendant as the perpetrator of the offense, three (3) other co-

workers of both the Defendant and the victim testified that the Defendant bragged

that the victim would not be at work on Monday, March 28, 1994, because Defendant

had “messed up” the victim. The Defendant argues that his denial of these events

and the tes timon y of his fo rmer girlfriend , Aquilla Sorrell, verifying his wher eabou ts

on the evening of the attack, do not allow for a rational trier of fact to have found him

as the perpetrator of the crime against the victim. However, given the overwhelming

                                            -5-
testimony by the victim and three (3) others who heard the Defendant brag about

committing the crime, there is m ore than sufficient evide nce where by a rational trier

of fact could have found Defendant as the perpetrator beyond a reaso nable d oubt.

Any questions concerning the credibility of the witnesses and the weight to be given

the evidence are resolved by the trier of fact, and we will not reweigh the evidence

on Defen dant’s be half. Pappas, 754 S.W .2d at 623 ; Cabbage, 571 S.W.2d at 835.




      Defendant argues that the injuries sustained by the Defendant do not

constitute “serious bodily injury.” Aggravated robbery requires that a robbery be

accom plished w ith 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 or that th e victim

suffer serious bodily injury.   Tenn. Code Ann. § 39-13-402.          Tennessee Code

Annotated section 39-11-106(a)(34) defines “serious bodily injury” as “bodily injury

which involves:” (A) a substantial risk of death; (B) protracted unconsciousness; (C)

extreme physical pain; (D) protracted or obvious disfigurement; or (E) protracted loss

or substan tial impairm ent of a fun ction of a bodily mem ber, organ or m ental faculty.



      The evidence at trial, unrefuted by the Defendant, demonstrated the injuries

the victim suffered included permanent damage to his left eye requiring the insertion

of a metal plate which still causes the victim pain. In addition, he has a loss of

feeling in his mouth. This evidence su fficiently m eets th e defin ition of a victim

suffering “a protracted loss or substantial impairment of a function of a bodily

mem ber, organ or mental faculty.” Te nn. Co de Ann . § 39-11-106(a)(34)(E). From

the evidence, the jury could have rationally concluded that the Defendant committed

aggrava ted robb ery. This iss ue is witho ut merit.

                                           -6-
    We affirm the ju dgme nt of the trial co urt.




                                ____________________________________
                                THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
GARY R. WA DE, Presiding Judge


___________________________________
JOHN EVERET T WILLIAMS, Judge




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