         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE             FILED
                           SEPTEMBE R SESSION, 1997 December 10, 1997

                                                         Cecil W. Crowson
                                                        Appellate Court Clerk
STATE OF TENNESSEE,              )   C.C.A. NO. 01C01-9609-CR-00395
                                 )
      Appellee,                  )
                                 )   ROBERTSON COUNTY
                                 )
V.                               )
                                 )   HON. ROBERT W. WEDEMYER, JUDGE
BILLY KEMP RIPPY,                )
                                 )
      Appe llant.                )   (AGGRAVATED ROBBERY)



FOR THE APPELLANT:                    FOR THE APPELLEE:

MICHAEL R. JONES                      JOHN KNOX WALKUP
District Public Defender              Attorney General & Reporter

FRED W. LOVE                          LISA A. NAYLOR
Assistant Public Defender             Assistant Attorney General
109 South Second Street               2nd Floor, Cordell Hull Building
Clarksville, TN 37040                 425 Fifth Avenue North
                                      Nashville, TN 37243

                                      JOHN WESLEY CARNEY, JR.
                                      District Attorney General

                                      DENT MORRISS
                                      Assistant District Attorney General
                                      500 South Main
                                      Springfield, TN 37172




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                 OPINION

      The Defendant, Billy Kemp Rippy, appeals as of right following a jury trial

in the Circuit Cou rt of Robertson County where he was convicted of aggravated

robbery. The trial court sentenced Defendant to thirteen (13) years as a Range

II, Multiple Offender.    The Defendant raises two issues on appeal: (1) the

evidence was insu fficient to sustain a verdict of gu ilty beyond a reaso nable d oubt;

and (2) the trial court erred in sentencing him to thirteen (13) years for

aggrava ted robb ery. W e affirm the judgm ent of the tria l court.



      The victim, James Roy Wilson, resided at 111 Blair Street in Springfield,

Tennessee. At the time of trial, he was 61 -years-old and ha d been confined to

a whee lchair fo r appro ximate ly two and one-half years because of a broken hip.

The victim receives a disability check once per month in the amount of $270-275.

He testified that he suffers from depression and does have a drinking problem.

At trial he said that he had known the Defendant for more than 20 years and that

they were drinking b uddies . The Defendant had been staying with Mr. Wilson for

two to thre e week s prior to M ay 1994 , but did no t pay rent to stay there .



      On the night of the offense, the Defendant and the victim had been drinking

together. Mr. Wilson testified that he drank one quart of beer and gave one quart

to the Defendant, which was th e only alcohol he saw the Defendant consume that

evening. The victim had appro ximate ly $270 in cash in his possession because

his brother-in-law had cashed his disability check for him and delivered the cash

earlier that evening. The Defendant was present when Wilson’s brother-in-law



                                          -2-
brought the money. Mr. Wilson testified that the Def enda nt yelled , “[y]ou c an’t

hide that mo ney from me,” and began waving a four-inch knife in his face. Wilson

said that the Defe ndan t hit him in the fa ce thre e or fou r times and s plit his lip.

The victim said that he was afraid of the Defenda nt so he gave him the m oney.

The victim testified at trial that the Defendant also hit him in the legs with a

base ball bat and slamm ed his he ad into the wall. There was some conflict in the

testimony as to whether or not the victim initially told Detective Jeff White of the

Springfield Police Department about these latter two acts.



       The victim testified that the Defen dant the n said, “[y]ou won’t call no body,”

and he stomped on the telephone and cut the telephone cord with his knife. The

Defendant said he w ould kill W ilson if he told anyone . Mr. W ilson testified that

he knocked on his neighbor’s door in the duplex, but that no one answered.

Because of his physical disability and because his telephone was not operable,

the victim w as un able to attempt to get further help that night. The next morning,

Mr. Wilso n saw h is acqua intance M arvin Bus h walk by and he called ou t to him

for help. After briefly speaking with the victim, Bush went to a neighbor and

immediately called the police.



       Detective White arrived at 111 Blair Street at approximately 8:00 a.m. after

receiving the phone call from Bush . He tes tified tha t W ilson’s h air was messed

up and that he saw some dried blood on the right side of his mouth. He said that

W ilson’s face appeared to be red on the right side as well. Detective W hite

noticed that some numbers were broken out of the telephone and that the

telephone cord ha d been cut with a sharp object. T he victim to ld Detec tive W hite




                                          -3-
that he thought these events took place around 3:00 a.m., but he testified at trial

that they too k place b etween 9:00 p.m . and m idnight.



      Dete ctive White obtained a warrant for the arrest of the Defendant. The

Defendant was questioned on May 17, 1994, and gave a statement to police

saying he was “on a lot of cocaine” the night in question and that he just could not

remem ber wha t happe ned tha t night.



      Marvin Bush testified for the defense, and stated that he had known the

victim for practically his whole life. He often purchased liquor for Mr. Wilson even

though he himself had quit drinking about six (6) months before trial. He stated

that he had n ever kn own th e victim and the Defendant to have had any problems

with each other in the past. Bush testified that on the morning Wilson called out

to him for help, that Wilson said the Defendant and another man had been in a

fight at his house. Mr. B ush also testified that W ilson told him later that the

Defendant did not in fact rob him. However, Bush said that he thought the victim

was intoxicated when he said this. Wilson denied ever ma king that s tateme nt to

Bush. Mr. Bu sh sa id that th e victim is a truthful person and a “man of his word”

unless he is drunk. Bush admitted that Wilson was very vulnerable to be ing

robbed or attacked because of his physical condition.



      The Defe ndan t testified in his own behalf. He stated that he and the victim

had been drinking buddies for fifteen (15) to twenty (20) years. The Defendant

said that the evening prior to the alleged robbery, he and another man had been

in a fight at Wilson’s house. He claimed they fell over the c offee table and on to

Wilson, and that the othe r man was bleeding when he left. He testified that on

                                         -4-
the night of the robbery he was on cocaine and alcohol. He told the police, “I just

don’t think I could have done anything like this to him.” At trial he testified that he

has no memory at all of what happened on the night of the offense.



                     I. SUFFICIENCY OF THE EVIDENCE



       When an accused challenges the sufficiency of the convicting evidence,

the standard is whe ther, aft er revie wing th e evide nce in the ligh t mos t favora ble

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

eleme nts of the crim e beyon d a reas onable doubt. Jackson v. Virginia , 443 U.S.

307, 319 (1979 ). This standard is applicable to findings of guilt predicated upon

direct eviden ce, circ ums tantial evidence or a combination of direct and

circumstantial evidenc e. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.

App. 1990). On appeal, the State is entitled to the strongest legitimate view of

the evidence and all inferences therefrom. State v. Cabbage, 571 S.W.2d 832,

835 (Tenn. 197 8).     Because a verdict of guilt removes the presumption of

innocence and rep laces it with a presumption of guilt, the accused has the

burden in this court of illustrating why the evidence is insufficient to support the

verdict returned by the trier of fact. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn.

1982); State v. Grace, 493 S.W .2d 474, 476 (Tenn. 197 3).



       Questions conce rning the credibility of the witnesses, the weight and value

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

resolved by the trier of fact, n ot this cou rt. State v. Pappas, 754 S.W.2d 620, 623

(Tenn. Crim. A pp.), perm. to appeal denied, id. (Tenn. 1987). Nor may this court

reweigh or reevalua te the evide nce. Cabbage, 571 S.W .2d at 835. A jury verdict

                                           -5-
approve d by the trial judge accredits the State’s witnesses and resolves all

conflicts in fa vor of the S tate. Grace, 493 S.W .2d at 476 .



       In order to sustain a conviction for aggra vated robbe ry, the evidence must

show that the Defe ndant intentionally or knowingly took property from Mr. Wilson

by violence or by putting him in fear, and that this taking was accom plished w ith

a deadly w eapon . See Tenn. Code Ann. §§ 39-13-401(a) and 39-13-402 (a)(1).

A "deadly weapon" is defined in Tennessee Code Annotated section

39-11-1 06(a)(5) as:

              (A) A firearm or any thing m anifestly designed, made or adap ted

       for the purpose of inflicting death or serious bodily injury; or

              (B) Anything that in the manner of its use or intended use is

       capab le of caus ing dea th or seriou s bodily injury ;



       Mr. Wilson testified that the Defendant had been staying with him in the

weeks prior to the night in que stion. The D efendant wa s present wh en Mr.

W ilson’s brother-in-law brought him $270-275 cash from his disability check. The

Defendant told the victim, “[y]ou can’t hide that money from m e,” while waving a

four-inch knife in front of h is face. Mr. Wilson testified that the Defe ndan t hit him

in the face and chest and slammed his head against the wall. He also said that

the Defendant hit him in the legs seve ral times w ith a baseball bat. Because he

was afraid of the Defendant, Mr. Wilson gave him the money. In fact, the victim

testified he let Defendant have the money because he didn’t want Defendant

“working on me with that knife.” To prevent the victim from calling for help, the

Defendant stomped on the phone and cut the phone cords with the knife.

Detective White’s testimony supports the victim’s assertions pe rtaining to his

                                          -6-
physical injuries and the damaged telephone. There was sufficient evidence for

a reasonable trier of fact to find that the Defendant intentionally or knowingly took

money from the victim by violence or by pla cing th e victim in fear, a nd tha t this

act was accomplished with a deadly weapon.



       The defen dant c onten ds tha t his leve l of intoxic ation n egate d his ability to

form the specific intent nec essary to com mit agg ravated ro bbery. In order for the

defendant to rely upon voluntary intoxication as a defense, "there must be

evidence that the intoxication dep rived [him] of the m ental capacity to form

spec ific intent. . . . The determinative question is not whether [he] was

intoxicated, but what wa s his me ntal capa city." Harre ll v. State, 593 S.W.2d 664,

672 (Tenn . Crim. A pp. 197 9) (citations omitted) . In this rega rd, whethe r the

defendant was too intoxicated to form the requ isite mental state wa s for the jury

to determ ine. State v. Bell, 690 S.W.2d 879, 882 (Tenn. Crim. App. 1985). The

jury in the case sub judice chose no t to believe that the Defendant was too

intoxicated to have acted “knowingly” or “intentionally.” The victim testified how

the Defendant waived the knife in his face and told the victim that he could not

hide the money. Further testimony was that the Defendant cut the telephone

cord and stomped the telephone indicating that the Defendant was cognizant that

he should take steps to be sure th e victim could not pro mptly call for assistance.

There was more than a sufficient basis for the jury to determine that Defendant

was no t too intoxica ted to hav e forme d the req uisite me ntal intent.



      The Defen dant also conten ds that the testimony of Marvin B ush is more

credible than the victim’s testimony. Mr. Bush testified that Mr . W ilson to ld him

that the Defendant did not in fact rob him. Howe ver, the victim denied ever

                                           -7-
making tha t statement to M r. Bush. The credibility of the witnesses, the weight

to be given their testimony, and the reco nciliation of c onflicts in the evidence a re

matters entruste d exclusive ly to the jury as the triers of fact. Byrge v. S tate, 575

S.W.2d 292, 295 (Tenn. Crim. App. 1978). The jury in the instant case decided

to believe the victim’s testimony and this Cou rt will not second-guess that

determ ination.



       For all the reasons d iscussed ab ove, sufficient evidence existed for the jury

to find the Defe ndan t guilty beyond a reas onable dou bt of aggravated robbery.

This issu e is withou t merit.



                                 II. SENTENCING



       In his seco nd issue , the Defe ndant argue s that th e trial co urt erre d in

sentencing him to thirteen years in the Department of Correction.             It is the

respon sibility of the Defendant to have prepared a transcript of "such part of the

evidence or proceeding as is necess ary to convey a fair, accura te and co mplete

account of what transpired with respect to those issues that are the bases of

appea l." Tenn. R. App. P. 24(b). Having failed to include the transcript of the

evidence at the sen tencing h earing, the Defen dant ca nnot no w be he ard to

com plain about h is senten ce. State v. Arno ld, 719 S.W.2d 543, 546 (Tenn. Crim.

App. 1986). Wh en the record prese nted is incom plete o r inadequate, as is the

case here, we must presume the correctness of the sentence imposed by the trial

court. State v. Coolidge, 915 S .W .2d 82 0, 826 -27 (T enn. C rim. App. 1995);

Matthews, 805 S.W.2d at 784; State v. Beech, 744 S.W.2d 585, 588 (Tenn. Crim.

App. 1987 ).

                                          -8-
       Even though the transcript of the sentencing hearing is not included in the

record, our rev iew of what is in the record adequately supports the sentence

imposed upon De fendant. Agg ravated robbe ry is a Class B felony. Tenn. Code

Ann. § 39-13-402(b). Having been sentenced as a Ran ge II Multiple Offend er,

the range for Defendant’s sentence is not less than twelve (12) years nor more

than twenty (20 ) years. T enn. C ode An n. § 40-35-112 (b)(2). The pre-sentence

report is included in the record. From that report, it is evident that Defendant has

two (2) prior convictions for third degree burglary classified as Class D felonies,

which justify the sen tence w ithin Ran ge II. Tenn. Code Ann. § 40-3 5-106(a)(1).

In addition, the pre-se ntence repo rt shows that Defendant has forty-six (46) prior

convictions for public intox ication, thre e (3) prior co nvictions fo r DUI, two (2) prior

convictions for driving on a revoked license, one (1) prior conviction for driving on

a suspended license, one (1) prior conviction for assault and battery, one (1) prior

conviction for diso rderly conduct, one (1) prior conviction for resisting arrest, two

(2) prior co nvictions fo r failure to ap pear, an d one (1 ) prior con viction for pe tit




                                            -9-
larceny. There is m ore than am ple evidence to justify enhanc eme nt of this

Rang e II senten ce to thirtee n (13) yea rs. Tenn . Code Ann. § 4 0-35-11 4(1).



      This issu e is withou t merit.



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



                                  ____________________________________
                                  THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
GARY R. WA DE, Judge


___________________________________
J. CURWO OD W ITT, JR., Judge




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