        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT NASHVILLE             FILED
                        MAY SESSION, 1999         September 10, 1999

                                               Cecil Crowson, Jr.
STATE OF TENNESSEE,       )                   Appellate Court Clerk
                               C.C.A. NO. 01C01-9805-CR-00198
                          )
      Appellee,           )
                          )
                          )    DAVIDSON COUNTY
VS.                       )
                          )    HON . SETH N ORM AN
ERIC BERNARD HOWARD,      )    JUDGE
                          )
      Appe llant.         )    (Dire ct Ap pea l - Agg ravat ed R obb ery)




FOR THE APPELLANT:             FOR THE APPELLEE:

THOMAS H. POTTER               PAUL G. SUMMERS
100 Thompson Lane              Attorney General & Reporter
Nashville, TN 37211
                               LUCIAN D. GEISE
                               Assistant Attorney General
                               425 Fifth Avenu e North
                               Nashville, TN 37243

                               VICTOR S. JOHNSON
                               District Attorney General

                               JOHN ZIMMERMANN
                               Assistant District Attorney
                               Washington Sq., Ste. 500
                               Nashville, TN 37201



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                    OPINION

       On October 26, 1995, the Davidson County Grand Jury indicted Appellant

Eric B. Howard for two counts of aggravated robbery.              After a jury trial on

November 17–18, 1997, Appellant was convicted of two counts of aggravated

robbery.   After a sentencing hearing on December 17, 1997, the trial cou rt

sentenced Appellant as a Range II multiple offender to consecutive terms of

seventeen years for each conviction.             Appellant challenges his convictions,

raising the following issues:

       1) whether the trial cou rt erred when it ruled that c ertain evidence was
       irrelevant and inadmissible;
       2) whether the evidence was sufficient to support one of the aggravated
       robbery convictions; and
       3) whether incom petency by re ason of addiction to a narcotic drug is a
       defense to a ggravated rob bery.


After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                                      I. FACTS




       Jianwei Cao te stified th at while he was walking to his office on the

Vand erbilt University campus at 10:00 a.m. on August 15, 1995, he was

approached by Appellant. When Appellant asked Cao where the admissions

office was loca ted, Cao stated tha t he wou ld show him the w ay.              Shortly

thereafter, Cao and Appellant entered a narrow path between two buildings.

Appellant then made a motion with his hand and s aid “Give me you r wallet . . .

There is a gun . . . I show you.” Although Cao d id not actually see a gun, he

looked at where Appellant had indicated he had a gun and saw “something pop

out,” or “bump[] up.” Cao then gave Appellant his watch, his card case, and


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twelve dollars in ca sh from his pock et. Cao subsequently followed Appellant for

a short distance and asked Appellant to return his card case because Cao was

afraid that Appellant would look at his identification and learn his name and

address. Appellant returned the card case, but he kept the watch and the cash.



      Hoseung Lee testified that while he was walking to his office on the

Vanderbilt University campus at approximately 10:15 a.m. on August 15, 1995,

Appellant approached him and asked for directions to the admissions office.

When Lee p retend ed tha t he did not understand English, Appellant said “Give me

the money” and pulled up his shirt so that Lee could see the gun that was tucked

in his waistband. Lee then ga ve App ellant his w allet and th ree dollars . Appellant

looked through the wallet a nd gave it back to Le e.



      Lee testified that after Appellant left, Lee ran to his office and contacted

security. Approxima tely fifteen minutes later, Lee went to the security office and

identified A ppellant a s the per son wh o had ro bbed h im.



      Jennifer West testified that while she was wo rking as a security officer for

Vand erbilt University at 10:20 a.m. on August 15, 1995, she received a report of

an armed robbery. Shortly thereafter, West saw Appellant and noticed that he

matched the description of the suspect. West and O fficer Robert Young then

approached Appe llant and inform ed him that he m atched the desc ription of a

suspe ct in an arm ed robb ery.



      West testified that A ppellant was fairly calm at first, but he a ppeare d to

become nervous when the officers que stioned him.              Officer Young frisked

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Appellant for weapons and discovered tha t Appe llant ha d a gu n tuck ed in h is

waistband. The gun had the appearance of a nine millimeter handgun, but the

officers subsequently determined that it was a BB gun. West testified that

Appellant did not appear to be intoxicated or high on any drugs. O fficer Robert

Young also te stified th at App ellant did not appear to be intoxicated or high on

drugs.



         Detective Larry Reese of the Vanderbilt University Police Department

testified that when Appellant was taken into custody, he initially provided the

officers with a fa lse na me. H owev er, Ap pellant subsequently gave his correct

name and apologized to the officers for being untruthful. Reese subsequently

observed Appellant for two to four hours, and it did not appear that Appellant was

under th e influenc e of alcoh ol or drug s.



         Dete ctive H arold Haney of the Metropolitan Nashville Police Department

testified that he interviewed Appellant on August 15, 1995, and the interview was

recorded on videotape.             Haney also testified that before the interview, he

informed Appe llant of h is constitutional rights, and Appellant signed a waiver of

rights form. A t this po int, the vid eotap e of Ap pellan t’s statement was played for

the jury. 1



         Haney testified that during the interview, Appellant did not appea r to have

been under th e influenc e of drug s and d id not indica te that he was under the

influence of alcoho l or drugs.



         1
         The record does not contain either the videotape of Appellant’s statement or a transcript of the
statem ent.

                                                  -4-
                          II. EXCLUSION OF EVIDENCE




         Appellant conten ds that the trial court erred when it ruled th at certa in

docum ents created by the Un ited State s Socia l Security A dministra tion were

irrelevant and inadmissible. We conclude that this issue is waived.



         The record ind icates tha t after the clo se of the State’s proof, Appellant

sought to introduce certain docum ents pre pared b y the Soc ial Secur ity

Administration that apparently related to a “recommendation of disability” for

Appe llant. Although it is not clear, these documents were apparently created in

1993 or earlier. After viewing the documents, the trial court found that they were

inadm issible because the “medical records that are three, and four, and five

years prior to this particular time have no effect on this matter.” Appellant then

failed to make a proffer of the documents for the record.



         Because Appellant failed to make a proffer of the documents, it is not

poss ible for us to review th em to d etermin e wheth er the trial co urt abus ed its

discretion when it found that they were inadmissible because they were

irrelevant. Appellant has waived this issue, and appellate review is precluded.

See State v. Hall, 958 S.W.2d 679, 691 n.10 (T enn. 19 97); State v. Coker, 746

S.W.2d 167, 171 (T enn. 19 87); State v. Goad, 707 S.W.2d 846, 853 (Tenn.

1986).




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                         III. SUFFICIENCY OF THE EVIDENCE




        Appellant contends that the evidence was insufficient to support his

conviction for the aggravate d robbery of Cao. 2 Specifically, Appellant claims that

the evidence was insufficient because there was no proof that Appellant’s actions

ever put Cao in fear. We disagree.



        When an a ppellant challenges the sufficiency of the evidence , this Court

is obliged to review that challenge accord ing to certa in well-settled principles . A

verdict of guilty by the jury, approved by the trial judge, accredits the testimony

of the State ’s witness es 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 origina lly cloaked with a p resum ption o f innoc ence , a jury ve rdict rem oves th is

presumption and replaces it with one o f guilt. State v. Tug gle, 639 S.W.2d 913,

914 (Tenn . 1982). H ence, o n appe al, the burd en of pro of rests with Appellant to

demonstrate the insufficie ncy of the convicting evidenc e. Id. On appeal, “the

[S]tate is entitled to the strongest legitimate view of th e evide nce a s well a s all

reaso nable and legitimate inferences that may be drawn therefro m.” Id. Wh ere

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 elem ent of the o ffense be yond a re asona ble dou bt.

Jackson v. Virgin ia, 443 U.S . 307, 319 , 99 S.C t. 2781, 27 89, 61 L .Ed.2d 560

(1979). In con ductin g our e valuatio n of the convic ting evid ence , this Co urt is

precluded from reweighing or reconsidering the evidenc e. State v. Morgan, 929



        2
        Appellant has not specifically challenged the sufficiency of the evidence as to his conviction for
the aggravated robbery of Lee.

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S.W.2d 380, 383 (Tenn. Crim. App. 1996 ).            Moreover, 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). Finally, Rule 13(e) of the Te nness ee Ru les of Ap pellate Procedure

provides, “findings of guilt in criminal actions whether by the trial court or jury

shall be se t aside if the evidence is insufficient to support the findings by the trier

of fact beyo nd a rea sonab le doub t.”



       In order to e stablish th at Appellant was guilty of the alleged aggravated

robbery of Cao, the S tate had to prove beyond a reasonable doubt that Appellant

intentio nally or knowingly took p roper ty from Cao b y violen ce or p utting C ao in

fear by using a deadly weapon or display of an article used or fashioned to lead

Cao to reas onab ly believe it was a dead ly weapo n. See Tenn. Code Ann. §§ 39-

13-401(a), -402(a)(1) (1997). We conclude that when the evid ence is viewe d in

the light most favorable to the State, as it must be, the evidence was clearly

sufficient for a rational jury to find beyond a reasonable doubt that Appellant had

committed the offense of aggravated robbery of Cao.



       Cao testified that after he and Appellant entered a narrow path between

two buildings, Appellant made a motion with his hand and said “Give me your

wallet . . . There is a gun . . . I show you.” Cao testified that although he did not

actua lly see a gun, he looked at where Appellant had indicated that he had a gun

and saw “something pop out” or “bump[] up.” When the prosecutor asked Cao

how he felt at this p oint, Cao testified, “I’m s cared. I fea r.” Cao testified that he

then ga ve App ellant his w atch, his ca rd case , and twe lve dollars.




                                          -7-
       Appellant conte nds th at the a bove e videnc e was insuffic ient because

Cao ’s testimony that he was afraid was not credible. Specifically, Appellant

contends that Cao’s testimony that he subsequently followed Appellant and

asked for the return of his card case indicates that he never really felt any fear of

Appe llant. How ever, “[t]h e cred ibility of the witnes ses, th e weig ht to be given th eir

testimony, and the reconciliation of conflicts in the evidence are matters entrusted

exclus ively to the jury as the triers of fact.” State v. Cribbs, 967 S.W.2d 773, 793

(Tenn. 1998).       The jury obviously believed Cao ’s testimony that he gave

Appellant his property because he was afraid. In addition, althoug h the Sta te

must show that a defendant took property from another person by use of violence

or by putting the victim in fear to prove that the d efendant co mmitted rob bery,

nothing in the robbery statutes requires the State to prove that th e victim

remained in fear for some period of time after the defen dant to ok the victim’s

property. T his issue has no merit.



          IV. INCOMPETENCY BY REASON OF DRUG ADDICTION




       Appellant contends that we should adopt a rule that incompetency by

reason of add iction to a narc otic dru g relieve s a pe rson o f all resp onsib ility for his

or her criminal conduct. We decline Appellant’s invitation to do so.



       This Court has previously rejected the argument that addiction to drugs,

standing alone, relieves a p erson o f respon sibility for crimin al condu ct. See State

v. James Bailey Meador, No. 01C01-9011-C R-00291, 1992 W L 9521, at *4

(Tenn . Crim. A pp., Nas hville, Jan. 24 , 1992). T his Cou rt stated tha t




                                             -8-
      The compulsion or urge inherently attendant to chemical substance
      addiction or depend ency m ay not be used as an excuse for criminal
      activity. . . . It is only if the mental state of the defendant rises to the level
      of legal insa nity may h is respon sibility for crime be excu sed.

Id., 1992 WL 9521, at *4.



      In this case, the trial court ordered a m ental eva luation of A ppellant to

determine his competency to stand trial and to determine whether a mental

disease or defec t prevente d Appe llant from knowin g the w rongfu lness of his

conduct at the tim e of the offens es. Th e Van derbilt U niversity Menta l Health

Center subsequently evaluated Appellant and made the following findings:

             After completion of the competency evaluation by Mitchell Parks,
      M.D., we have concluded that [Ap pellan t’s] con dition is such that he is
      capable of defending himself in a court of law.                  In making that
      determination, we foun d that [Ap pellant] un derstands the nature of the
      legal process; that he understands the charges pending against him and
      the conse quenc es that ca n follow; an d can a dvise cou nsel and participate
      in his own defense.
             Upon com pletion of the m ental c ondit ion evalua tion pursu ant to
      T.C.A. 33-7-301(a), it is our opinion that at the time of the alleged offenses,
      [Appella nt] was not exhibiting a me ntal illne ss or d efect w hich w ould re sult
      in substantial impairment of his capacity to conform his conduct to the
      requirem ent of the la w.


In addition, th e defen se expe rt, Dr. Debra Doineau, testified that “drug usage or

no drug u sage ,” it was possible that Appellant knew what he was doing when he

robbed Cao and Le e. Further, Dr. Do ineau testified that it was po ssible for a

person who had experienced the drug-related problems and other difficulties that

Appellant had experien ced to form the intent to rob and then knowingly rob

anothe r person .



      The defense of insa nity is an affirmative defense that the defendant must

establish by clear and convincing evidence. Tenn. Code Ann. § 39-11-501(a)



                                          -9-
(1997). Appellant failed to meet his burden of proving that he was insane at the

time of the offenses. Indeed, rather than arguing that he did meet the burden,

Appellant simply urg es us to adopt a rule that anyone who is addic ted to n arcotic

drugs is automatically insane and is therefore not responsible for his or her

criminal condu ct. This Court has previously rejected this proposed rule, and we

see ab solutely no reason to adop t it now. Th is issue ha s no m erit.



      Accordingly, the judgment of the trial court is AFFIRMED.



                                 ____________________________________
                                 JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
DAVID G. HAYES, JUDGE


___________________________________
NORMA MCGEE OGLE, JUDGE




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