         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs July 18, 2001

                  STATE OF TENNESSEE v. ROBERT L. DREW

                Direct Appeal from the Criminal Court for Davidson County
                         No. 95-D-2559    Steve R. Dozier, Judge



                   No. M2000-01853-CCA-R3-CD - Filed September 7, 2001

The defendant appeals his conviction of theft of property valued at $1,000 or more, but under
$10,000. He contends that the trial court erred in denying his motion to suppress a showup
identification of him at the crime scene. He further contends that the evidence was insufficient to
support his conviction and that the trial court erred by instructing the jury on flight. After review,
we affirm the judgment of the trial court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
JOSEPH M. TIPTON, J., joined.

David A. Collins, Nashville, Tennessee, for the appellant, Robert L. Drew.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General;
Victor S. (Torry) Johnson III, District Attorney General; and Kymberly L. A. Haas, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                             OPINION

       The defendant, Robert L. Drew, was indicted by the Davidson County Grand Jury for theft
of property valued at $1,000 or more, but under $10,000. After a jury trial, he was found guilty and
sentenced to twelve (12) years in the Department of Correction as a career offender, to run
consecutive to several Shelby County convictions and a conviction for felony escape, which
occurred on the same date of the instant offense. His appeal is properly before this court and he
contends that the trial court erred in denying his motion to suppress a showup identification at the
scene of the crime, as it tainted the eventual in-court identifications. He also contends that the
evidence was insufficient to support his conviction and that the trial court erred in instructing the
jury on flight. After review, we affirm the judgment of the trial court.
                                                Facts

        On June 16, 1995, Linda Capley was working at Lavert’s Market in West Nashville. Earlier
in the day she had been in the liquor store that was attached to the market, and while in the liquor
store, the defendant came in, talked with her for a few minutes, and purchased a bottle of wine.
Later in the day, she was waiting on a woman in the market and the defendant came in and stood
behind the woman in line. She was cashing several checks and had just opened a new bundle of
twenty-dollar bills, which contained $2,000, and had placed them in the register.

        While waiting on a customer, Ms. Capley opened the cash register drawer and the defendant
reached over the counter and took a hand full of twenty-dollar bills out of the register. At that
moment, Ms. Capley screamed, “He got my money,” and she ran after him as he fled from the
market. Mary Sigler, the owner of the market, was on the telephone when the defendant came into
the store. She did not see the defendant take the money out of the register; however, she saw the
money in his hand as he was drawing his hand back from the register. Two other men who worked
near the market witnessed the defendant running from the store with money in his hands and chased
him to a nearby field that surrounded an abandoned grain silo.

        Officer Jeff Burnette was dispatched to Lavert’s Market after a call came in reporting the
incident. He was instructed by an eyewitness who saw the defendant run from the store with the
money in his hands that he ran into the field near the grain silo. Ms. Capley described the perpetrator
as a black male wearing a white-colored shirt and blue jeans. Ms. Sigler described the perpetrator
as wearing a light-colored shirt and dark pants. She said that he had a very identifiable face with a
long nose, long face, and normal size lips. She said that she could see the defendant very well in the
market and that he had stood in line for at least a couple of minutes, so she had a good opportunity
to look at him.

        After searching the area near the silo for nearly two hours, Officer Burnette located the
defendant hiding near a grain bin. The defendant was wearing a white shirt and dark pants and had
$260 in twenty-dollar bills in his left front pocket. After arresting the defendant, Officer Burnette
returned to the market and asked each witness to walk by the police car and determine if they could
identify the man in the car. Each witness individually identified the defendant as the perpetrator.

        Although the defendant had only $260 in twenty-dollar bills in his possession when he was
arrested, Mary Sigler testified that based on the amount of money that had been put in the register
that day, roughly $2,000 was missing. Furthermore, Linda Capley testified that she had just put a
bundle of twenty-dollar bills in the register, which contained $2,000. The only money that the
defendant took from the register was twenty-dollar bills.

        Prior to trial, the defendant moved to suppress the showup identification of him by the
witnesses at the market as being impermissibly suggestive and as tainting any subsequent in-court
identifications. Both Mary Sigler and Linda Capley testified at the hearing. Ms. Sigler testified that
she was on the phone near the check-out counter when the defendant came into the store. She

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testified that he stood in line for several minutes behind a woman who was placing a money order.
Ms. Capley testified that she was working the cash register and helping a woman with her purchases
when the defendant reached over the counter and grabbed the money out of the register. She then
screamed, “He got my money,” and ran after him as he fled the market.

        Ms. Sigler testified that she did not see the defendant grab the money out of the register, but
she saw the money in his hand as he was drawing his hand back from the register. She described
him as a black male wearing a light-colored shirt and dark pants. She said that he had a very
identifiable face with a long nose, long face, and normal size lips. Ms. Capley also described the
perpetrator as a black male wearing a white-colored shirt and blue jeans.

        Officer Jeff Burnette testified that the description given to him of the perpetrator was a black
male, about six feet tall, wearing a white shirt and dark pants. An eyewitness instructed the officer
that they saw the defendant run from the store into a nearby field with money in his hands. After
a search of the nearby field and grain bin, the officer located the defendant, who was dressed in a
white shirt and dark pants. The defendant had $260 in twenty-dollar bills in his left front pocket.
Officer Burnette then arrested the defendant.

        Officer Burnette returned to the market with the defendant and asked each witness to walk
by the police car and determine if they could identify the man in the car. Five witnesses, including
Mary Sigler and Linda Capley, each positively identified the defendant as the perpetrator. At the
conclusion of the hearing, the trial judge, relying upon the case of Neil v. Biggers, 409 U.S. 188,
199, 93 S. Ct. 375, 382, 34 L. Ed. 2d 401 (1972), denied the defendant’s motion to suppress the
showup identification.

                                     Identification Procedure

        First, the defendant contends that the trial court erred in not suppressing the showup
identification of him and that such impermissibly suggestive identification tainted any in-court
identifications. In reviewing suppression issues, we will affirm the trial court’s findings of fact
unless the evidence preponderates otherwise. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).
Furthermore, in reviewing a trial court’s ruling on a motion to suppress, this court may consider
proof adduced at both the suppression hearing and at trial. State v. Henning, 975 S.W.2d 290, 299
(Tenn. 1998).

        Any identification process that is so impermissibly suggestive “as to give rise to a very
substantial likelihood of irreparable misidentification” violates due process. Simmons v. United
States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247 (1968). A showup is a type of
identification of a defendant that is inherently suggestive. See State v. Drinkard, 909 S.W.2d 13,
15 (Tenn. Crim. App. 1995). The use of showups to establish the identification of a person
suspected of committing a criminal offense has been repeatedly condemned unless (1) there are
imperative circumstances necessitating the showup, or (2) the showup is part of an on-the-scene


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investigatory procedure shortly after the commission of the crime. See State v. Thomas, 780 S.W.2d
379, 381 (Tenn. Crim. App. 1989).

         Although a showup may be suggestive, it may satisfy due process as reliable and admissible
if the totality of the circumstances so warrant. See State v. Brown, 795 S.W.2d 689, 694 (Tenn.
Crim. App. 1990). The five factors to consider when evaluating the propriety of an identification
process are: (1) the opportunity the witness had to view the criminal at the time of the crime; (2) the
witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4)
the level of certainty of the witness at the confrontation; and (5) the time between the crime and the
confrontation. See Brown, 795 S.W.2d at 694 (citing Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct.
375, 382, 34 L. Ed. 2d 401 (1972)).

         In this case, the showup identification of the defendant was inherently suggestive,
particularly because the defendant was confined to the back of the police car. However, we must
determine whether the showup was unnecessarily or impermissibly suggestive. We first note that
the defendant was apprehended only two hours after the crime occurred. The police apprehended
the defendant a short distance from the scene of the crime and were still conducting an on-the-scene
investigation of the crime. Therefore, this particular showup may be permissible if, considering the
totality of the circumstances, it is reliable so as to satisfy due process. See Brown, 795 S.W.2d at
694.

         The evidence at the suppression hearing showed that both Mary Sigler and Linda Capley had
ample opportunity to view the defendant. Not only did each of the eyewitnesses clearly see the
defendant standing in line and taking money from the cash register, but Ms. Capley had even had
a conversation with the defendant earlier in the day at the liquor store. The two eyewitnesses each
gave the police a description of the perpetrator as being a black male wearing a light-colored shirt
with dark pants. Ms. Sigler even described the perpetrator as having a very identifiable long face
with a long nose and normal size lips. When the witnesses were confronted with the defendant, each
of the five positively identified the defendant as the perpetrator. When questioned at the suppression
hearing and at trial about the certainty of their identification of the defendant, each was very certain
that the defendant was the perpetrator. Finally, the confrontation wherein the witnesses identified
the defendant was only a couple of hours after the crime occurred. Given the totality of the
circumstances of this showup and eventual in-court identification of the defendant as the perpetrator,
this identification procedure clearly satisfied due process. See Brown, 795 S.W.2d at 694.
Therefore, the trial court properly denied the defendant’s motion to suppress.

                                      Sufficiency of Evidence

       The defendant was indicted for and ultimately found guilty of violating Tennessee Code
Annotated section 39-14-103, theft of property valued at $1,000 or more, but less than $10,000, a
Class D felony. He contends that the evidence at trial was insufficient to support his conviction. His
contention is two-fold: (1) Because the prior showup identification of the defendant should have
been suppressed and any subsequent in-court identifications were tainted by the impermissibly

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suggestive showup, there was insufficient evidence to identify the defendant as the perpetrator of the
theft; and (2) that the evidence was insufficient to support a conviction for theft in the amount of
$1,000 or more.

        We review challenges to sufficiency of the evidence according to well-settled principles. A
guilty verdict by the jury, approved by the trial judge, accredits the testimony of the State’s witnesses
and resolves all conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d 253, 259
(Tenn. 1994). Although an accused is originally cloaked with a presumption of innocence, a jury
verdict removes this presumption and replaces it with one of guilt. State v. Tuggle, 639 S.W.2d 913,
914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with the defendant to demonstrate the
insufficiency of the convicting evidence. Tuggle, 639 S.W.2d at 914. On appeal, “the [S]tate is
entitled to the strongest legitimate view of the evidence as well as all reasonable and legitimate
inferences that may be drawn therefrom.” Id.

       Where the sufficiency of the evidence is contested on appeal, the relevant question for the
reviewing court is whether any rational trier of fact could have found the accused guilty of every
element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781, 2789, 61 L. Ed. 2d 560 (1979). This court may not substitute its own inferences “for those
drawn by the trier of fact from circumstantial evidence.” State v. Matthews, 805 S.W.2d 776, 779
(Tenn. Crim. App. 1990). In concluding our evaluation of the convicting evidence, this court is
precluded from reweighing or reconsidering the evidence. State v. Morgan, 929 S.W.2d 380, 383
(Tenn. Crim. App. 1996).

        As previously discussed in this opinion, we reject the defendant’s contention that the showup
identification was impermissibly suggestive and thus should have been suppressed. The
identification evidence at trial consisted of two eyewitnesses who worked at the store where the theft
occurred. These two eyewitnesses positively identified the defendant as the perpetrator of the theft.
At trial, they described how they saw the defendant pulling his hand away from the cash register
with a hand full of bills. In addition, one of the witnesses then chased the defendant out of the store
as he fled to a nearby field. This evidence was clearly sufficient to identify the defendant as the
perpetrator of this crime.

         Next, the defendant contends that insufficient evidence exists to support a conviction for theft
of property over $1,000. The evidence at trial showed that the defendant reached over the counter
and removed a hand full of twenty-dollar bills from the cash register. Mary Sigler testified that
based on the amount of money that had been put in the register that day, roughly $2,000 was
missing. Furthermore, Linda Capley testified that she had just put a bundle of twenty-dollar bills
in the register, which contained $2,000. The only money taken from the register was twenty-dollar
bills. When the defendant was arrested, he had $260 in his left front pocket, all twenty-dollar bills.
This evidence was clearly sufficient for a jury to conclude that the amount of money that the
defendant took from the cash register was over $1,000. This issue is without merit.

                                     Jury Instruction on Flight

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         The defendant contends that the trial court erred by giving an instruction to the jury on flight.
Initially, we note that the defendant has failed to include the jury instructions in the record for our
review. The burden is on the defendant to provide a complete record for our review. See Tenn. R.
App. P. 24. Normally, an issue is waived if the defendant fails to effectuate a complete record
adequate for us to review the issue. See State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App.
1988). However, the transcript in this case clearly indicates that the trial court determined that such
an instruction on flight was warranted. Further, the trial court, in denying the defendant’s motion
for a new trial, stated, “In terms of the flight instruction, I think the case law is clear, that the
instruction should have been given.” The record clearly indicates that a flight instruction was given
to the jury. Because the defendant only contends that an instruction on flight was inappropriate, and
not that the particular substance of the instruction was error, for purposes of review, we will examine
the Tennessee Pattern Jury Instruction on flight:
                 The flight of a person accused of a crime is a circumstance which, when
         considered with all the facts of the case, may justify an inference of guilt. Flight is
         the voluntary withdrawal of oneself for the purpose of evading arrest or prosecution
         for the crime charged. Whether the evidence presented proves beyond a reasonable
         doubt that the defendant fled is a question for your determination.

               The law makes no precise distinction as to the manner or method of flight;
        it may be open, or it may be a hurried or concealed departure, or it may be a
        concealment within the jurisdiction. However, it takes both a leaving the scene of
        the difficulty and a subsequent hiding out, evasion, or concealment in the
        community, or a leaving of the community for parts unknown, to constitute flight.

                 If the flight is proved, the fact of flight alone does not allow you to find that
        the defendant is guilty of the crime alleged. However, since flight by a defendant
        may be caused by a consciousness of guilt, you may consider the fact of flight, if
        flight is so proven, together with all of the other evidence when you decide the guilt
        or innocence of the defendant. On the other hand, an entirely innocent person may
        take flight and such flight may be explained by proof offered, or by the facts and
        circumstances of the case.

                 Whether there was flight by the defendant, the reasons for it, and the weight
         to be given to it, are questions for you to determine.
T. P. I. - Crim. 42.18.

        In order for a trial court to charge the jury on flight as an inference of guilt, there must be
sufficient evidence to support such instruction. Sufficient evidence supporting such instruction
requires “‘both a leaving the scene of the difficulty and a subsequent hiding out, evasion, or
concealment in the community.’” State v. Burns, 979 S.W.2d 276, 289 (Tenn. 1998) (quoting State
v. Payton, 782 S.W.2d 490, 498 (Tenn. Crim. App. 1989)).


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        Here, the defendant both ran from the crime scene, while being chased by one of the
witnesses, and hid out in some overgrown weeds near a grain silo for nearly two (2) hours before
being apprehended by police. This evidence clearly supported the trial court’s instruction on flight.
The defendant contends, however, that the trial court should not have instructed the jury on flight
because the trial court knew he was on escape status, and, thus, explaining that status to the jury
would have an extremely prejudicial effect on him because it would have revealed his prior robbery
and theft convictions. The State responds that the record does not indicate that the defendant was
an escapee. However, the pre-sentence report indicates that the defendant was also charged with
felony escape on June 16, 1995, the same date of the offense and the charge in the instant case. The
defendant was convicted on the escape charge on June 8, 1998, approximately two months prior to
the trial in this matter. Further, the defendant’s current theft conviction was ordered to run
consecutive to his escape conviction. We disagree with the State’s contention that the defendant was
not an escapee. Therefore, we will determine whether a defendant’s escape status or prior
convictions for robbery and theft preclude a trial court from instructing the jury on flight.

         Essentially, the defendant’s contention is that he was denied a fair trial because, in order for
him to explain why he was hiding from the authorities, the jury would be informed of his prior
robbery and theft convictions. Although a defendant is guaranteed the right to a fair trial, the State,
as the representative of the people, is also entitled to a fair trial. See, e.g., United States v. Ford, 830
F.2d 596, 603 (6th Cir. 1987) (Krupansky, J., concurring); see also State v. Carruthers, 35 S.W.3d
516, 563 (Tenn. 2000) (discussing the State’s interest in a fair trial). When a defendant is charged
with a crime, the State has no control over the defendant’s status or prior record and must take its
defendants as it finds them. Here, the defendant placed himself in the position of being a felon
previously convicted of several robberies and thefts. Furthermore, he placed himself in the position
of being an escaped felon from the Department of Correction. The State should not be deprived of
its interests in a fair trial by not having the jury instructed on all appropriate instructions as a result
of the defendant being an escapee. Therefore, we hold that the defendant was not deprived of his
right to a fair trial as a result of his own misconduct. The trial court properly instructed the jury on
flight.

                                               Conclusion

        After a thorough review of the record before us, we hold that the trial court properly denied
the defendant’s motion to suppress the showup identification of the defendant as the perpetrator. We
further hold that sufficient evidence exists to support the defendant’s conviction and that the trial
court properly instructed the jury on flight. We affirm the judgment of the trial court in all respects.




                                                                  ______________________________

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      JOHN EVERETT WILLIAMS, JUDGE




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