        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs September 5, 2012

              STATE OF TENNESSEE v. JEREMY STEVENSON

                  Appeal from the Criminal Court for Shelby County
                   No. 10-03167    James M. Lammey, Jr., Judge


              No. W2011-02053-CCA-R3-CD - Filed February 13, 2013


The Defendant-Appellant, Jeremy Stevenson, was convicted by a Shelby County jury of first
degree felony murder and especially aggravated robbery and was sentenced to concurrent
sentences of life imprisonment and twenty years. On appeal, Stevenson argues that the
evidence is insufficient to establish his identity as the perpetrator of these offenses. Upon
review, we affirm the judgments of the trial court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which T HOMAS T.
W OODALL and J EFFREY S. B IVINS, JJ., joined.

Janene N. Oleaga (on appeal and at trial) and Juni S. Ganguli (at trial), Memphis, Tennessee,
for the Defendant-Appellant, Jeremy Stevenson.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy E. Wilber, Assistant Attorney
General; Amy P. Weirich, District Attorney General; Eric Christensen and Paul Hagerman,
Assistant District Attorneys General, for the Appellee, State of Tennessee.

                                        OPINION

       Trial. Donald Lee, a deputy with the Shelby County Sheriff’s Department, testified
that on November 19, 2009, at around 7:30 p.m. he received a call that shots had been fired
in the Ruthie Cove area. Because he was near the area at the time, he heard the gunshots.
As Deputy Lee drove to the Ruthie Cove area, dispatch told him that a red vehicle had
“jumped the curb” and was resting against a fence.

     Upon arriving at the location, Deputy Lee observed the red vehicle and smelled “gun
powder in the air.” After ensuring that the shooter was no longer in the vicinity, he
approached the vehicle and observed the victim, later identified as Kerry Collins, sitting in
the driver’s seat. He said the victim had his pants pulled down and was covered in blood.
He also saw that the driver’s window had shattered and had fallen to the ground. When
Deputy Lee discovered that the driver did not have a pulse, he called medical personnel, who
pronounced the victim dead at the scene.

       Shareka Boyd, Stevenson’s co-defendant who was tried separately, testified that she
had been incarcerated for the last eighteen months because of this case. She stated that she
was seventeen years old at the time of her arrest. Boyd said she had met Stevenson at the
Greenbriar Apartments and had known him for approximately two months at the time of the
victim’s murder. Although she did not know Stevenson well, Boyd said she had spent time
with him on several occasions at the apartment complex.

       Boyd said that she first met the victim when he flirted with her at a corner store, and
they exchanged telephone numbers. The first two times Boyd and the victim met, the victim
gave her money. However, the next two times they met, the victim wanted her to do sexual
favors for him, and she refused. She said that although she had run away from a Department
of Children Services facility, she had not been working as a prostitute. Boyd asserted that
she never had sex with the victim. At the time of this incident, Boyd said she had been
dating Javarus Ross for approximately seven months.

       On November 19, 2009, Boyd and Stevenson were at Veronica Ward’s house on
Ruthie Cove. Although Ward was Ross’s cousin, Ross was not at Ward’s house with them
that day. However, Ward’s three children were present. Boyd said that Ward was pregnant
with Stevenson’s child at that time. Several times, Ward left the house to go to the store but
returned without any items. Boyd saw Stevenson walk to the home across the street to talk
to some young men between the ages of eighteen and twenty-three years old who were
standing around outside.

        Boyd said that at 3:00 or 4:00 p.m. that day the victim called her. At the time of this
call, she was at Ward’s house, and Stevenson was at the house across the street. The victim
told her that he wanted to have sex with her, but she refused. The victim then said that he
would bring some money to her.

       When Stevenson returned to Ward’s house, he told Boyd that “the boys across the
street” were talking to him about robbing someone in the Schoolfield neighborhood.
Stevenson retrieved a black gun with a clip from the back of the house and told Boyd that he
was going to sell the gun to these boys because he needed some money. During this time,
Ward was not in the house. Boyd said that Stevenson tucked the gun into his pants and
walked across the street while Boyd stayed with Ward’s three children.

                                              -2-
        Boyd said that the victim called her a second time while Stevenson was across the
street. The victim asked her where she was, and she told him that she was in Northaven.
Stevenson returned to Ward’s house while Boyd was talking to the victim. Boyd assumed
that Stevenson had returned to the house because the boys across the street had refused to buy
the gun. She said that Stevenson walked very slowly past her, and it was obvious that he was
trying to listen to her conversation with the victim. Boyd ended her conversation with the
victim without making any plans to see him.

        Ward returned home. Then Ward left again, claiming that she was going to the store,
and Stevenson walked across the street. Stevenson called Boyd over to talk with him and the
young men. When she got there, Stevenson asked the young men about the robbery, and they
said, “[N]o, Bro, we ain’t fixing to [do] no” robbery. She said that the young men repeatedly
told Stevenson that they were not going to rob anyone. One of the young men also told
Stevenson, “I don’t want to buy that broke ass gun, this trigger don’t work, man[.]” Then
Stevenson left Boyd with the young men and walked back across the street to Ward’s house.
A few minutes later, Stevenson rejoined her and the young men. Stevenson told the young
men that Boyd was his little sister and that “she ain’t taking nothing from nobody[.]” Boyd
returned to Ward’s house.

        Boyd said the victim called her a third time, and she walked out of Ward’s house to
talk to him. Boyd could tell that Stevenson was eavesdropping on her conversation with the
victim. The victim told Boyd that he would be there to pick her up around 7:00 p.m., and
Boyd told him to call her when he got close. Boyd said that she and the victim did not
discuss having sex during this conversation. She said that Stevenson had seen the victim and
his car, a red Buick Skylark with dark tinted windows, several times in the past.

       Boyd stated that the victim called her a fourth time and told her to meet him on Mike
Drive. During the call, the victim gave her directions to Mike Drive from Ruthie Cove, and
she walked to this location alone. When she saw the victim, she got into his car, and he
drove to an abandoned house on Ruthie Cove. He backed his car into the driveway of the
house, and they talked. Boyd said that it was around 7:00 p.m. and that it was dark outside.

       Boyd said that the victim pulled his pants down, and someone walked in front of his
vehicle. She said she was unable to see who walked in front of the car because she was
“trying to see why [the victim] pulled his pants down.” She said they had not talked about
trading money for sex. The victim told her that they had to go somewhere else because
people were walking by the car. At that moment, Boyd looked up and saw someone wearing
“a jacket or a pullover” walking away from the car.




                                             -3-
        As the victim was about to crank his car, a man wearing a ski mask appeared at the
driver’s side window, pointed a gun inside the car, and shouted, “[P]ut y’all mother f[------]
hands up.” Boyd said that she immediately knew the person in the ski mask was Stevenson
when she heard his voice. She also knew the man was Stevenson because of his body
language. She saw a light-colored shirt hanging out from the bottom of Stevenson’s
pullover. When Stevenson told them to put their hands up, he shot inside the car, and some
of the bullets hit the victim. The victim tried to crank his car, but it began to stall and moved
slowly out of the driveway. Stevenson continued to shoot into the car. The victim tried to
start the car again, which had hit the curb near a stop sign.

       Stevenson ran to the car and began shooting inside the car again. At the time, the
victim began “hyperventilating[.]” As Stevenson reached into the car, the victim hit him in
the mouth. Boyd tried to get out of the car, but Stevenson grabbed her and hit her in the left
eye with the barrel of the gun, and she fell on the ground. Stevenson pulled the trigger again,
but there were no more bullets in the gun. Boyd noticed that Stevenson was holding a
handgun with a long, silver barrel during the incident. Then Stevenson ran off.

       Boyd said the victim “bucked his eyes at [her] real hard” before slumping over. She
ran to Ward’s house but did not call the police. At the time, she was terrified and believed
that she was also going to die. Stevenson returned to Ward’s house shortly after Boyd got
there. He knocked on the door, and Boyd told Ward not to let Stevenson into the house
because he had just shot someone. Ward, who did not react to her pleas, opened the door and
allowed Stevenson into the house. Boyd began to panic and kept running to the bathroom
because she could not control her urine. Stevenson told Boyd, “[I]f you say something, I’m
going to kill you.”

       Boyd said that she was terrified of Stevenson, but she eventually composed herself.
Although she stayed at Ward’s house that night, she did not sleep. Boyd saw Ward and
Stevenson leave the house the next morning. Boyd remained in the house with Ward’s
children.

        Ward returned to the house approximately thirty-five minutes later with Ross. Boyd
said that this was the first time she had seen Ross that day. Ross approached Boyd and asked
her who hit her in the face. She refused to answer because she was scared of Stevenson.
Although Boyd never called the police, police officers arrived at Ward’s house the next day
while Boyd, Ward, Stevenson, Ross, and Ward’s three children were present. Boyd
identified a picture of her face showing the injury she sustained when Stevenson hit her on
her left eye during the incident. This photograph, which was taken by Ross shortly after the
victim’s murder, was admitted into evidence.



                                               -4-
        Boyd said that between the time of the murder and the time the police arrived,
Stevenson changed his hair from “dreads” to a “fade” haircut. The police knocked on the
front and back doors simultaneously, and Ward opened the back door and allowed the police
to enter the home. Boyd said that one of the officers, Sergeant Harris, identified her from a
photograph and handcuffed her. Because Sergeant Harris thought Ross was Stevenson, he
also handcuffed Ross. The officers searched everyone in the house. When Ross told the
officers his name and that he was not Stevenson, the officers told him to be quiet. Stevenson
sat on the couch and said nothing.

       As the officers took Ross out of the house, Stevenson told Boyd not to say anything.
Boyd understood this to mean that if she said anything to the officers, Stevenson would kill
her. Then the officers grabbed Stevenson, took him outside, and handcuffed him. The
officers confiscated everyone’s cell phones. Boyd said officers separated her, Ross, and
Stevenson and transported them to jail.

        Boyd stated that she wrote a letter to Sergeant Harris the day after she was arrested.
In the letter, she claimed that two men approached the car and one of the men shot the victim
before both men ran away. She said that she gave this false story regarding the incident so
that the attention would be diverted away from Stevenson. Boyd said that she did not tell the
truth in the letter because she was afraid that Stevenson would kill her if she “snitched” on
him. At the time, she did not know if Stevenson was going to be released.

       Boyd said that once she received an attorney, she talked to the police in a face-to-face
meeting where she told the officers that Stevenson killed the victim in her presence. She also
provided details regarding the incident. Boyd said that she decided to tell the officers the
truth because she realized that Stevenson could not harm her. Boyd identified Stevenson’s
photograph from his arrest at trial. She explained that Stevenson’s lip in the photograph was
swollen because the victim had hit him during the incident. She also identified the black gun
with a clip that Stevenson tried to sell to the young men across the street the day of the
victim’s murder.

        Boyd acknowledged that she had been charged with facilitation of first degree felony
murder and facilitation of especially aggravated robbery. She said that she was aware of the
sentence ranges that she was facing for these charges. She admitted that she did not want to
stay in prison and was interested in minimizing her prison time. Boyd said she did not know
that the victim was going to be robbed when she got into his vehicle on November 19, 2009.
When asked if she was not guilty of any crime, she stated, “If y’all want to say I’m guilty of
prostitution, I’ll plead guilty to it. But other than that, I’m not guilty to no murder or no
robbery, none of that.” She asserted that she was not guilty of facilitation of felony murder



                                              -5-
or facilitation of especially aggravated robbery, stating, “I don’t got the heart to kill nobody
[or] take things from nobody.”

        Lisa Funte, the medical examiner with the Shelby County Regional Forensic Center,
testified that she participated in the victim’s autopsy and determined that the victim died from
multiple gunshot wounds. Dr. Funte stated that the victim had been shot in the left shoulder,
the left thigh, and the right ankle. In addition, the victim had “irregular abrasions” on the left
side of his face, his left arm, and the left side of his body and leg, which were consistent with
the perpetrator shooting through the victim’s closed car window. Dr. Funte said that the
bullet for the gunshot wound to the victim’s shoulder went through his trachea and his right
lung before exiting on the right side of his body and that this wound would have resulted in
death without immediate medical intervention. This bullet was recovered. The bullet for the
gunshot wound to the victim’s thigh fractured his femur and exited the body on the back right
side of his left thigh. Finally, the bullet for the gunshot wound to victim’s ankle went
through the front of the ankle and exited on the side. A bullet fragment was recovered from
that wound.

        Chris Harris, a sergeant with the Shelby County Sheriff’s Office, testified that he was
asked to assist in the investigation regarding the victim’s death. On November 21, 2009,
Sergeant Harris went to 4969 Ruthie Cove in an effort to find Boyd and Stevenson. He and
several other officers went to the Ruthie Cove address. He said that after the officers
knocked, they heard “movement” inside the house. They continued knocking and Ward
eventually opened the door. When Sergeant Harris entered the home, he saw Boyd and two
men inside. He said the officers first thought Ross was Stevenson, so they handcuffed Ross.
Stevenson did not correct the officers’ mistake. When Sergeant Harris heard Stevenson
telling Boyd not to say anything, he handcuffed Stevenson as well.

        Sergeant Harris said that Ward gave him written consent to search the house. The
officers found a box of ammunition for a military rifle in a chest of drawers and a box of
ammunition for a .44 Magnum handgun in a closet. Sergeant Harris could not definitively
state that the .44 Magnum ammunition was used in the victim’s murder. The officers did not
find any guns in the house. In addition, the officers were unable to locate the victim’s cell
phone at Ward’s home.

        Brad Less, a detective with the Shelby County Sheriff’s Department, testified that he
responded to the scene at Ruthie Cove just after 8:00 p.m. on November 19, 2009 and
collected evidence from the scene. Detective Lee found the back of a cell phone across the
street from 4969 Ruthie Cove. In addition, he found a bullet fragment in the street.




                                               -6-
        Veronica Ward testified that she lived at 4969 Ruthie Cove in November 2009. She
said she had known Stevenson for just over two weeks as of November 19, 2009, and during
that time, she became pregnant with his child. Ward said that she lied to detectives and the
assistant district attorney about the victim’s murder. When the assistant district attorney
played a recording of a telephone conversation between Ward and Stevenson, Ward told him
the truth about what happened.

       Ward said that Stevenson called her from jail two days after he was arrested. During
this call, Stevenson referred to “dude[’s] phone,” which Ward understood to mean the
victim’s phone. When Stevenson asked her if the detectives had found the phone in her
trash, Ward told him that they had not found it because she had hidden it in a special place.
During the call, Stevenson said that Boyd had “started this.”

       Ward said she had previously received a letter from Stevenson stating that a cell phone
was behind her house. Ward found the phone after the detectives searched her home, and she
threw it in the trash can after the detectives had already gone through the trash. Ward could
not describe what the cell phone looked like, although she remembered that the back of the
phone was missing. Ward said that the cell phone she disposed of could have belonged to
Stevenson and did not have the victim’s name on it. She admitted that she disposed of the
cell phone and lied to the police in order to help Stevenson.

       Robert Butterick, a detective with the Shelby County Sheriff’s Office, testified that
he processed the victim’s car. He said that Stevenson’s fingerprints were not on the victim’s
vehicle. In addition, he said that Boyd’s fingerprints were not in the victim’s car.

       Samuel Parnell testified that he lived at 4990 Ruthie Cove and that his friend Allan
Garrett lived at 4993 Ruthie Cove in November 2009. On the day of the victim’s murder,
Parnell was in his backyard with Garrett, Mardricus Dalton, and two other people. Parnell
said that he met Stevenson, who had just moved in next door, one day before the victim was
murdered.

        Parnell said that on November 19, 2009, Stevenson walked up to him and his friends
and asked them if they wanted to make some money. When they asked him what he was
talking about, Stevenson said, “[W]e fixing to rob this dude.” Stevenson told the men that
he was going to get the girl next door to promise to “do a sexual favor for the dude” in order
to lure him to the area so that he could rob him. Parnell had seen Stevenson with a short
woman that day, who kept going back and forth from Parnell’s house to her house. He also
said that Stevenson talked to him and his friends several times about assisting in the robbery.
Parnell declined the offer to help in the robbery, stating that he “was straight.” He said that
the day of the victim’s murder Stevenson was wearing a .38 in the waistband of his pants and

                                              -7-
was wearing a long red shirt and blue jeans. However, Parnell said that Stevenson had been
carrying a big, chrome handgun the day before the victim’s murder. Although Parnell
acknowledged testifying at a hearing in January 2010 that Stevenson was wearing a “yellow
looking shirt” on November 19, 2009, Parnell asserted that Stevenson changed clothes
several times that day and had worn a red shirt, a black shirt, and a yellow shirt during the
day the victim was murdered. He admitted that he did not testify about Stevenson changing
shirts at the January 2010 hearing.

         On the night of the victim’s murder, Parnell heard a couple of shots and ran to his
little brother’s window to see what was happening. He saw a car on the curb, and he went
out the back door to investigate. Parnell heard “hollering” from a “strong kind of voice” and
then heard “a couple more shots[,]” which forced him back into the house. He was unable
to see anyone shooting or running in the area where he heard the shots. When Parnell saw
Stevenson the next day, Stevenson did not say anything to him.

        Allan Garrett testified that he was sixteen years old when the victim was murdered.
He stated that he lived across the street from Parnell in November 2009. Garrett said that he,
Parnell, and Dalton were friends. Garrett said that he had met Stevenson one or two weeks
before the victim’s murder. On November 19, 2009, Garrett said he was hanging out with
Parnell, Dalton, and two other guys when Stevenson approached him and asked if he wanted
to earn some money. When Garrett asked him how he could make some money, Stevenson
said he was going to rob someone. Garrett told him he did not want to be involved. Garrett
had noticed that a short woman, Boyd, was with Stevenson that day, and she was on the
phone. Stevenson told Garrett that Boyd was going to lure the intended victim of the robbery
to Ruthie Cove with the promise of sex. Garrett said Stevenson showed him three different
guns that day. The first gun was a chrome .38 special with a black handle, the second gun
was a chrome .44 Magnum, and the third gun was a black Uzi. Garrett said that Stevenson
was wearing a baggy red shirt on November 19, 2009. Garrett saw Stevenson for the last
time around 6:30 p.m. before he went home. Approximately fifteen to twenty minutes after
he got home, Garrett heard four or five gunshots. He looked out his window, saw a car on
the curb, and told his foster mother to call the police. Garrett acknowledged telling officers
on November 22, 2009, that Stevenson was wearing a black shirt; however, he stated that
Stevenson had worn a black shirt early in the day and then had changed into a red shirt later
in the day.

        Mardricus Dalton testified that in November 2009 he was friends with Parnell and
Garrett, who lived on Ruthie Cove. On November 19, 2009, Dalton said he was with Parnell
and Garrett when Stevenson approached them and asked if they wanted to make some
money. When they asked what Stevenson was talking about, he explained that he was going
to rob someone and showed them three guns, a .38 special, a gun with a chrome barrel, and

                                             -8-
an Uzi. Dalton said he thought Stevenson had showed them the guns in order to get them to
help him with the robbery. Stevenson told them that Boyd was going to call the victim to get
him to come to the area in order to rob him. At the time, Boyd was across the street talking
to someone on her cell phone. Dalton said he heard Boyd ask Stevenson at 5:00 or 6:00 p.m.
what they “were going to do because [the victim] was on the way back out there.” Dalton
told Stevenson that he was not interested in helping him commit a robbery. Despite this,
Stevenson returned to talk to Dalton, Parnell, and Garrett several times on November 19,
2009. Dalton said that Stevenson was wearing a red shirt and then changed into a yellow
shirt later that day.

       At 6:45 p.m. Dalton left Parnell’s house to go to his grandmother’s house, where his
father picked him up. A short time later, Dalton heard on the news that someone had been
murdered on Ruthie Cove. Dalton and his mother went to Ruthie Cove, and Dalton saw
Stevenson, wearing a yellow shirt, standing at the back of the crowd that had gathered
around the crime scene. An officer asked Dalton if he knew what happened but because
Dalton had just seen Stevenson in the crowd, he told the officer he did not know anything
about the victim’s murder. Dalton said that if Stevenson “did something like that and he was
standing there watching, ain’t no telling what else he’ll do.”

       The day after the murder, Dalton said he was at his grandmother’s house with his
cousins when Stevenson approached him and stated, “[Y]’all folks scared. Y’all could have
made some money, that was some easy money.” Dalton talked to Detective Butterick a short
time after the murder and told him everything that he had observed the day of the murder.

                                        ANALYSIS

       Stevenson argues that the evidence is insufficient to support his convictions for first
degree felony murder and especially aggravated robbery. Specifically, he claims that the
evidence is insufficient to establish his identity as the perpetrator of these offenses because
the State failed to present any reliable testimonial evidence or physical evidence connecting
him to the offense.

       The State, on appeal, is entitled to the strongest legitimate view of the evidence and
all reasonable inferences which may be drawn from that evidence. State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997). When a defendant challenges the sufficiency of the evidence,
the standard of review applied by this court is “whether, after reviewing 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 (1979). Similarly, Rule 13(e) of the Tennessee Rules of Appellate Procedure states,
“Findings of guilt in criminal actions whether by the trial court or jury shall be set aside if

                                              -9-
the evidence is insufficient to support a finding by the trier of fact of guilt beyond a
reasonable doubt.” Guilt may be found beyond a reasonable doubt in a case where there is
direct evidence, circumstantial evidence, or a combination of the two. State v. Matthews,
805 S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331
(Tenn. 1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The trier of fact must
evaluate the credibility of the witnesses, determine the weight given to witnesses’ testimony,
and must reconcile all conflicts in the evidence. State v. Odom, 928 S.W.2d 18, 23 (Tenn.
1996). When reviewing issues regarding the sufficiency of the evidence, this court shall not
“reweigh or reevaluate the evidence.” Henley v. State, 960 S.W.2d 572, 578-79 (Tenn.
1997). This court has often stated that “[a] guilty verdict by the jury, approved by the trial
court, accredits the testimony of the witnesses for the State and resolves all conflicts in favor
of the prosecution’s theory.” Bland, 958 S.W.2d at 659. A guilty verdict also “removes the
presumption of innocence and replaces it with a presumption of guilt, and the defendant has
the burden of illustrating why the evidence is insufficient to support the jury’s verdict.” Id.
(citing State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982)).

        “In the absence of direct evidence, a criminal offense may be established exclusively
by circumstantial evidence.” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (citing
Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973); Marable v. State, 313 S.W.2d 451, 456-
58 (Tenn. 1958)). However, “[t]he jury decides the weight to be given to circumstantial
evidence, and ‘[t]he inferences to be drawn from such evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence, are questions
primarily for the jury.’” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting Marable,
313 S.W.2d at 457). This court may not substitute its inferences for those drawn by the trier
of fact in cases involving circumstantial evidence. State v. Sisk, 343 S.W.3d 60, 65 (Tenn.
2011) (citing State v. Lewter, 313 S.W.3d 745, 748 (Tenn. 2010)). We note that the standard
of review “‘is the same whether the conviction is based upon direct or circumstantial
evidence.’” State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009) (quoting State v. Sutton,
166 S.W.3d 686, 689 (Tenn. 2005)); State v. Carruthers, 35 S.W.3d 516, 557 (Tenn. 2000).
The court in Dorantes specifically adopted the standard for circumstantial evidence
established by the United States Supreme Court in Holland:

              “Circumstantial evidence . . . is intrinsically no different from
       testimonial evidence. Admittedly, circumstantial evidence may in some cases
       point to a wholly incorrect result. Yet this is equally true of testimonial
       evidence. In both instances, a jury is asked to weigh the chances that the
       evidence correctly points to guilt against the possibility of inaccuracy or
       ambiguous inference. In both, the jury must use its experience with people and
       events in weighing the probabilities. If the jury is convinced beyond a
       reasonable doubt, we can require no more.”

                                              -10-
Dorantes, 331 S.W.3d at 380 (quoting Holland v. United States, 348 U.S. 121, 140 (1954)).

       “The identity of the perpetrator is an essential element of any crime.” State v. Robert
Wayne Pryor, No. M2003-02981-CCA-R3-CD, 2005 WL 901140, at *3 (Tenn. Crim. App.,
at Nashville, Apr. 19, 2005) (citing State v. Thompson, 519 S.W.2d 789, 793 (Tenn. 1975)).
The State has the burden of proving “the identity of the defendant as the perpetrator beyond
a reasonable doubt.” Id. (citing State v. Sneed, 908 S.W.2d 408, 410 (Tenn. Crim. App.
1995)). The identity of the defendant as the perpetrator may be established by direct
evidence, circumstantial evidence, or a combination of the two. Thompson, 519 S.W.2d at
793. “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.” State v. Radley, 29 S.W.3d 532, 537 (Tenn. Crim. App.
1999) (citing State v. Strickland, 885 S.W.2d 85, 87-88 (Tenn. Crim. App. 1993)). The
identification of the defendant as the perpetrator is a question of fact for the jury after
considering all the relevant proof. Strickland, 885 S.W.2d at 87 (citing State v. Crawford,
635 S.W.2d 704, 705 (Tenn. Crim. App. 1982)).

       As relevant here, first degree felony murder is “[a] killing of another committed in the
perpetration of or attempt to perpetrate any . . . robbery[.]” T.C.A. § 39-13-202(a)(2) (2006).
In addition, especially aggravated robbery is the intentional or knowing theft of property
from the person of another accomplished with a deadly weapon and where the victim suffers
serious bodily injury. Id. §§ 39-13-401, -403 (2006).

        Accomplice Testimony. First, Stevenson argues that the trial court erred in not
instructing the jury on accomplice testimony because Boyd was an accomplice as a matter
of law. He asserts that because the jury was unable to hear the accomplice instruction, it was
unable to properly evaluate the testimony of Parnell, Garrett, and Dalton. He also argues that
the testimony of Parnell, Garrett, and Dalton did not sufficiently corroborate Boyd’s
testimony because these witnesses provided varying testimony regarding the clothes he wore
and the guns he had in his possession prior to the victim’s murder. While acknowledging
Ward’s testimony about the cell phone, he contends that there was no evidence indicating
that this cell phone belonged to the victim. Finally, he asserts that neither Ward’s testimony
nor the testimony of Parnell, Garrett, and Dalton placed him at the scene of the crime.

       The State responds that Boyd was not an accomplice as a matter of law because her
testimony showed that she was not involved in the planning of the victim’s robbery. It argues
that because Boyd was not an accomplice as a matter of law, the issue of whether Boyd was
an accomplice was a question of fact for the jury to decide. The State notes that Stevenson
failed to request a jury instruction on accomplice testimony or on the requirement of

                                             -11-
corroboration of an accomplice’s testimony. Finally, the State argues that even if Boyd was
an accomplice, it produced corroborating testimony through Parnell, Garrett, and Dalton. We
conclude that Boyd was not an accomplice as a matter of law and that Stevenson has waived
this issue by failing to request a jury instruction on accomplice testimony at trial.

        It is well-established in Tennessee that “a conviction may not be based solely upon
the uncorroborated testimony of an accomplice.” State v. Shaw, 37 S.W.3d 900, 903 (Tenn.
2001) (citing State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994); Monts v. State, 379
S.W.2d 34, 43 (Tenn. 1964)). An accomplice is a person who “knowingly, voluntarily, and
with common intent participates with the principal offender in the commission of the crime
alleged in the charging instrument.” State v. Griffis, 964 S.W.2d 577, 588 (Tenn. Crim. App.
1997) (footnote omitted). To qualify as an accomplice, it is not enough that the witness
possess guilty knowledge, be morally delinquent, or even have participated in a separate but
related offense. See State v. Lawson, 794 S.W.2d 363, 369 (Tenn. Crim. App. 1990). The
test is whether the alleged accomplice could be indicted for the same offense with which the
defendant is charged. State v. Green, 915 S.W.2d 827, 831 (Tenn. Crim. App. 1995);
Pennington v. State, 478 S.W.2d 892, 897-98 (Tenn. Crim. App. 1971) (citations omitted).
This court has previously considered the issue of whether the court or the jury determines a
witness’s status as an accomplice:

              The question of who determines whether a witness is an accomplice
       depends upon the evidence introduced during the course of a trial. When the
       undisputed evidence clearly establishes the witness is an accomplice as a
       matter of law, the trial court, not the jury, must decide the issue. On the other
       hand, if the evidence adduced at trial is unclear, conflicts, or is subject to
       different inferences, the jury, as the trier of fact, is to decide if the witness was
       an accomplice. If the jury finds the witness was an accomplice, the jury must
       decide whether the evidence adduced was sufficient to corroborate the
       witness’s testimony.

Griffis, 964 S.W.2d at 588 (footnotes omitted). In other words, if the evidence is clear and
undisputed that a witness participated in the crime, then the trial court must declare the
witness to be an accomplice as a matter of law and must instruct the jury that this witness’s
testimony must be corroborated; however, if the evidence is unclear, then the issue of
whether a witness is an accomplice is a question of fact for the jury to decide, and if the jury
decides that the witness is an accomplice, then it must determine whether there is sufficient
evidence corroborating the witness’s testimony. Id.; see Lawson, 794 S.W.2d at 369;
Bethany v. State, 565 S.W.2d 900, 903 (Tenn. Crim. App. 1978).




                                               -12-
        We agree with the State that Boyd was not an accomplice as a matter of law. Here,
Boyd was charged with facilitation of first degree murder and facilitation of especially
aggravated robbery, so she was not indicted for the same offenses as Stevenson. More
importantly, Boyd consistently testified at trial that she did not know that Stevenson planned
to rob the victim and that she did not lure the victim to the area. She also testified that
Stevenson eavesdropped on her conversations with the victim, which would have enabled
him to act alone in perpetrating the offenses against the victim in this case. Additionally,
Boyd testified that she believed Stevenson was going to kill her during and after the incident.
A photograph of Boyd taken shortly after the incident corroborated her claim that Stevenson
hit her in the left eye with the gun after shooting the victim. On the other hand, Parnell,
Garrett, and Dalton testified that Stevenson told them he was going to get Boyd to lure the
victim to the area so that he could rob him. Dalton specifically testified that he heard Boyd
ask Stevenson what they “were going to do because [the victim] was on the way back out
there.” Because the facts regarding Boyd’s participation in the crime were not clear and
undisputed, we conclude that the issue of whether Boyd was an accomplice was a question
of fact for the jury to determine.

       We note that the court did not instruct the jury that the issue of whether Boyd was an
accomplice was a question of fact to be determined by the jury and that if Boyd was found
by the jury to be an accomplice, corroboration of her testimony was required. See T.P.I -
Crim. 42.09 (15th ed. 2011). However, the record shows that Stevenson did not specifically
request a jury instruction for Boyd on the issue of accomplice testimony. This court has held
that when the trial court fails to instruct the jury on the issue of accomplice testimony, it is
the defendant’s responsibility to request such an instruction, and the defendant’s failure to
do so results in a waiver of the issue on appeal:

       [O]ur supreme court has held that an instruction on the rule requiring
       corroboration of an accomplice’s testimony is not fundamental. Upon the trial
       court’s failure to instruct the jury regarding accomplice testimony and the
       requirement of corroboration, it becomes the obligation of the defendant to
       make a special request for the instruction. In the absence of a special request,
       the trial court does not err by failing to instruct the jury about accomplice
       testimony even if the circumstances of the case warrant such an instruction.

              ....

              Upon the trial court’s failure to instruct the jury on the issue of
       accomplice testimony, it became the defendant’s responsibility to submit a
       special request. The failure to do so resulted in a waiver of the issue.



                                              -13-
State v. Anderson, 985 S.W.2d 9, 17-18 (Tenn. Crim. App. 1997) (internal citations omitted).
Accordingly, Stevenson’s claim that the trial court erred by failing to instruct the jury on
accomplice testimony is waived. Absent Stevenson’s request for this instruction, the trial
court had no obligation to instruct the jury on whether Boyd was an accomplice.

       We also agree with the State that it presented sufficient corroborating evidence at trial
in the event that Boyd was an accomplice. The Tennessee Supreme Court has stated the
following regarding the rule of corroboration:

       “[T]here 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.”

Shaw, 37 S.W.3d at 903 (quoting Bigbee, 885 S.W.2d at 803). “[O]nly slight circumstances
are required to corroborate an accomplice’s testimony.” Griffis, 964 S.W.2d at 589 (citations
omitted). The jury must determine whether sufficient corroboration exists. Shaw, 37 S.W.3d
at 903. As we will explain in the next section, we conclude that the testimony of Ward,
Parnell, Garrett, and Dalton fairly and legitimately connected Stevenson to the commission
of the charged offenses and sufficiently corroborated Boyd’s identification of Stevenson as
the perpetrator.

       Absence of Physical Evidence. Stevenson also argues that “[a]lthough a
perpetrator’s identity may be established solely on the basis of circumstantial evidence, some
physical evidence is implicitly required.” First, he claims that his case is distinguishable
from State v. Sisk, 343 S.W.3d 60 (Tenn. 2011), and State v. Lewter, 313 S.W.3d 745 (Tenn.
2010), two cases involving purely circumstantial evidence, because there was no physical
evidence connecting him to the scene of the crime. He emphasizes that none of his
fingerprints were found on the victim’s vehicle, that no evidence from the crime scene,
including the victim’s cell phone, was found in his possession, and that the murder weapon
and ammunition for the murder weapon were not found in his possession. He asserts that the
absence of any physical evidence connecting him to the offenses “weighs heavily against the
sufficiency of the convicting evidence in this case.”



                                              -14-
        Second, Stevenson argues that his case is similar to Chad Allen Love, a circumstantial
evidence case where no physical evidence connected the defendant to the crime scene. State
v. Chad Allen Love, No. E2010-01782-CCA-R3-CD, 2012 WL 391064, at *6 (Tenn. Crim.
App. Feb. 8, 2012) (noting that there was no physical evidence showing that the defendant
had been in or near the restaurant at the time of the robbery). In Chad Allen Love, this court
reversed the defendant’s conviction after concluding that no rational trier of fact could find
that the defendant was the perpetrator of the aggravated robbery beyond a reasonable doubt.
Id. at *8. Stevenson asserts that Parnell’s, Garrett’s, and Dalton’s testimony shows only that
he was in the area of the crimes prior to the commission of the offenses, and he argues that
mere proximity to the scene is not sufficient evidence to sustain his convictions. See id. at
*7 (concluding that evidence showing the defendant’s proximity to the restaurant seven hours
after the robbery was insufficient to support the defendant’s conviction for aggravated
robbery); State v. Varion Johnson, No. E2010-01363-CCA-R3-CD, 2011 WL 3568275, at
*6 (Tenn. Crim. App. Aug. 15, 2011) (stating the fact that the appellant and the perpetrator
were in close proximity to one another shortly before the robbery did “not provide the
substantial step necessary to support the appellant’s conviction for facilitation to commit
aggravated robbery”). Stevenson also contends that even if this court credits the evidence
showing that he had a relationship with Boyd and that he planned the robbery with her, this
evidence is insufficient to sustain his convictions. See Chad Allen Love, 2012 WL 391064,
at *7 (concluding that evidence that the defendant was a half-brother of one of the employees
of the restaurant that was robbed was insufficient to support the defendant’s conviction for
aggravated robbery). He claims that there was no reliable evidence showing he participated
in the commission of the offenses in this case and that evidence showing that he merely
planned a crime is insufficient to support his convictions.

        The State responds that despite Stevenson’s claims to the contrary, physical evidence
is not required to establish a perpetrator’s identity. It asserts that Stevenson’s reliance on
Sisk, Lewter, and Chad Allen Love is “misplaced” because each of these cases “were based
solely on circumstantial evidence where no witnesses placed the defendants at the scene of
the crimes” and “do not stand for an implicit holding that some physical evidence is required
to place the defendant at the scene.” The State emphasizes that Boyd provided eyewitness
testimony identifying Stevenson as the perpetrator in this case, a fact that Stevenson fails to
acknowledge. The State asserts that Boyd’s testimony alone is sufficient evidence to support
Stevenson’s convictions and that even if the jury determined that Boyd was an accomplice,
the testimony of Parnell, Garrett, and Dalton sufficiently corroborated her testimony that
Stevenson was the perpetrator of these offenses. We agree with the State that physical
evidence is not required to establish a perpetrator’s identity, that Boyd’s testimony was
sufficiently corroborated, and that the evidence was sufficient to identify Stevenson as the
perpetrator.



                                             -15-
        Here, the State presented eyewitness testimony from Boyd identifying Stevenson as
the perpetrator of the offenses in this case. Boyd testified that she did not know that
Stevenson planned to rob the victim and that she did not lure the victim to the area. Instead,
she claimed that Stevenson had been eavesdropping on her conversations with the victim.
Boyd overheard Stevenson asking Parnell, Garrett, and Dalton if they wanted to participate
in a robbery. A short time later, Boyd got into the car with the victim, who drove them to an
abandoned house on Ruthie Cove. She said that a man wearing a ski mask appeared at the
victim’s window, pointed a gun at the car, and shouted for them to put their hands up. She
immediately knew that the man in the ski mask was Stevenson because she recognized his
voice and his body language. Boyd witnessed Stevenson kill the victim by firing several
shots at him from a handgun with a long, silver barrel. During the altercation, the victim
punched Stevenson in the mouth. She identified a photograph of Stevenson from his arrest
and noted that Stevenson’s lip was swollen because the victim had hit him during the
incident. Boyd said that between the time of the victim’s murder and the police arriving at
Ward’s house Stevenson changed his hair from “dreads” to a “fade” haircut.

        Boyd’s testimony was corroborated by several different witnesses who provided
strong circumstantial evidence of Stevenson’s identity as the perpetrator. Ward testified that
Stevenson called her from jail and referred to “dude[’s] phone[,]” which she understood to
mean the victim’s phone. Ward said that Stevenson had previously written her a letter telling
her that a cell phone was behind her house. She located the phone and threw it in her trash
can after the detectives had searched her trash. When Stevenson asked Ward if the detectives
had found the phone, she told him that they had not found it because she had hidden it in a
special place. Ward said that although she could not remember what the phone looked like,
she remembered that the back of the cell phone was missing. Detective Less testified that
he found the back of a cell phone across the street from Ward’s home on Ruthie Cove.
Sergeant Harris testified that officers were unable to locate the victim’s cell phone at Ward’s
home. However, he said that he arrested Stevenson after he heard Stevenson telling Boyd
not to say anything at the time of her arrest.

        Parnell, Garrett, and Dalton also provided strong circumstantial evidence of
Stevenson’s identity as the perpetrator. They testified that Stevenson had repeatedly asked
them to participate in a robbery the day of the victim’s murder and had told them that he was
going to get Boyd to lure the victim to the area. Parnell said that he saw Stevenson carrying
a big, chrome handgun the day before the victim’s murder. Garrett and Dalton said
Stevenson showed them a chrome .44 Magnum the day the victim was murdered. Garrett
saw Stevenson on Ruthie Cove for the last time at 6:30 p.m. and heard four or five gunshots
fifteen to twenty minutes later. In addition, Dalton stated that he heard Boyd ask Stevenson
about what they were going to do because the victim was coming to the area. Finally, Dalton
stated that Stevenson approached him the day after the victim’s murder and said, “[Y]’all

                                             -16-
folks scared. Y’all could have made some money, that was some easy money.” Viewing the
evidence in a light most favorable to the State, we conclude that a rational trier of fact could
have found Stevenson to be the perpetrator of the offenses in this case beyond a reasonable
doubt. We affirm Stevenson’s convictions for first degree felony murder and especially
aggravated robbery.

                                       CONCLUSION

        The evidence was sufficient to establish Stevenson’s identity as the perpetrator of the
first degree felony murder and especially aggravated robbery offenses in this case. The
judgments of the trial court are affirmed.


                                                     ______________________________
                                                     CAMILLE R. McMULLEN, JUDGE




                                              -17-
