        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs January 5, 2016

               STATE OF TENNESSEE v. KARLOSS THIRKILL

                 Appeal from the Criminal Court for Shelby County
                       No. 10-06371   Glenn Wright, Judge


               No. W2015-00456-CCA-R3-CD - Filed March 29, 2016


Following a jury trial, the Defendant, Karloss Thirkill, was convicted of aggravated
robbery, a Class B felony. See Tenn. Code Ann. § 39-13-402. The trial court
subsequently imposed a ten-year sentence for the conviction. On appeal, the Defendant
contends (1) that the trial court erred in admitting a video recording of the crime when the
witness “did not have personal knowledge [of the contents of the video] nor was involved
in the chain of custody”; and (2) that the evidence was insufficient to sustain his
conviction. Following our review, we affirm the judgment of the trial court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and ALAN E. GLENN, JJ., joined.

Eric Mogy, Memphis, Tennessee (at trial and on appeal); and Bradley J. Eiseman,
Memphis, Tennessee (at trial), for the appellant, Karloss Thirkill.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; Amy P. Weirich, District Attorney General; and Muriel Malone, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                              FACTUAL BACKGROUND


       On July 9, 2010, Bennie Jackson worked as a clerk at a BP gas station in
Memphis, Tennessee. Mr. Jackson testified at trial that he was working the cash register
that night when a man he did not know entered the gas station and “purchased [some]
cigars and . . . walked back out.” A short time later, the man returned and told Mr.
Jackson that he had gotten “the wrong flavor and wanted to exchange” the cigars. Mr.
Jackson recalled that the man was “bending over like . . . he was trying to get something
out of his pocket” when he “got some gum” and placed it on the counter.

        Mr. Jackson testified that the man “continued to . . . lean forward like he was still
trying to dig something out of his pocket.” The man then pulled out a gun and pointed it
at Mr. Jackson. The man told Mr. Jackson “to leave the [cash] drawer open and back
up.” Mr. Jackson testified that the man reached over the counter, “took all the cash out of
the drawer,” and “raised it up to see if there was any” cash underneath the drawer. The
man also “reached over the counter [and tried] to feel for something else.” Mr. Jackson
testified that the man then walked around the counter and took “a stack of ones” from
behind the counter.

        Mr. Jackson testified that he “complied with what [the man] requested” because
the man “had a weapon” and that he “didn’t want to get shot over somebody else’s
money.” The man walked back around the counter after taking the “stack of ones” and
took another cigar from the counter as he left the gas station. Mr. Jackson then had
Darryl Williams, a “stock worker” who was also working at the BP that night, lock the
door. Mr. Jackson “pressed the panic button and . . . took out [his] cell phone and called
the police.” Mr. Jackson could not remember how much money was taken but testified
that “the owner calculated it at” $300.

       Mr. Williams also testified at trial. Mr. Williams recalled that he was stocking
candy onto a shelf when he saw a man with a gun go “around the counter” and “[grab] a
handful of the money there.” While the man was behind the counter, a customer walked
into the gas station, and the man told the customer to leave if he did not “want to get
hurt.” Mr. Williams testified that he could not identify the robber because he “didn’t
want to look at the man eye to eye” and, therefore, did not get a good look at the man’s
face.

       Officer Brandon Hudson of the Memphis Police Department (MPD) testified that
he responded to a report of a robbery at the BP gas station on July 9, 2010. Officer
Hudson recalled that he spoke to the victim and then waited forty-five minutes to an hour
for the owner of the gas station to arrive. The owner “was able to show” Officer Hudson
the video footage from the gas station’s security cameras. Officer Hudson recalled that
he watched the video footage that day with Mr. Jackson and the gas station’s owner.

       Sergeant James Taylor of the MPD testified that he was the “case officer”
regarding this offense. On July 21, 2010, Sgt. Taylor spoke with Mr. Jackson at the BP
gas station. Sgt. Taylor recalled that Mr. Jackson was working when they spoke but that
he showed Mr. Jackson a photographic lineup. Sgt. Taylor testified that before showing
Mr. Jackson the lineup, he read to Mr. Jackson an “advice to witness” form. Sgt. Taylor
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further testified that he allowed Mr. Jackson to review the form and that he believed that
Mr. Jackson read the form. After reviewing the “advice to witness” form, Mr. Jackson
selected the Defendant’s picture from the photographic lineup. Sgt. Taylor testified that
Mr. Jackson was “sure” that the picture he selected showed the man who robbed the gas
station on July 9, 2010.

       Mr. Jackson recalled speaking to Sgt. Taylor and picking the Defendant’s picture
out of the lineup. Mr. Jackson initially testified that he had read the “advice to witness”
form in addition to Sgt. Taylor’s reading and explaining it to him. Mr. Jackson testified
that he was “sure” when he selected the Defendant’s picture that the Defendant was the
robber. On cross-examination, Mr. Jackson admitted that he had only glanced over the
“advice to witness” form, but he felt that was good enough because Sgt. Taylor “took the
time to explain it” to him. Mr. Jackson reiterated during cross-examination that he was
positive when he made his selection from the photographic lineup.

       Sgt. Taylor testified that he obtained a copy of the gas station’s security camera
footage. Sgt. Taylor recalled that he did not obtain the video himself but that he sent a
technician to the get a copy of the footage because the gas station owner “said that his
CD burner was broken.” The video was introduced at trial during Officer Hudson’s
testimony. Officer Hudson testified that the video played for the jury was the same as the
one he watched with the owner and Mr. Jackson on the day of the robbery. Mr. Jackson
also testified that the owner showed him the security camera footage on July 9, 2010.
Mr. Jackson testified that the robbery as he had described it at trial was “captured on [the]
surveillance video” and that the video played for the jury was the same as the video he
watched with the gas station owner.

       At trial, Mr. Jackson identified the Defendant as the robber. Mr. Jackson testified
that he got a good look at the robber because the man was “standing right there in front
of” him during the robbery and that he “didn’t take [his] eyes off of” the man during the
robbery. Mr. Jackson also denied being scared during the robbery, explaining that “it
wasn’t the first” time that he had been robbed.

       Mr. Jackson admitted that during an October 2011 hearing, he was unable to
identify the Defendant. Mr. Jackson explained that there were several people “sitting by”
the Defendant when he was asked to make an identification and that he “didn’t want to . .
. point at the wrong person.” Mr. Jackson testified that he was positive that the
Defendant was the robber and that he felt comfortable identifying him at trial because his
memory had been “refreshed” after recently reviewing the video footage and the
photographic lineup.

       Mr. Jackson admitted on cross-examination that he said during the October 2011
hearing that he only “somewhat” remembered what the robber looked like because he had
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“viewed a surveillance tape” the morning after the robbery. Mr. Jackson further admitted
that during the October 2011 hearing, he said that he did not get “a good look [at the
robber] that stuck in [his] mind” and that the video was not “close enough to make an”
identification.

      Based upon the foregoing evidence, the jury convicted the Defendant of
aggravated robbery. The trial court subsequently imposed a ten-year sentence for the
conviction. This timely appeal followed.

                                        ANALYSIS

                      I. Authentication of Security Camera Footage

        The Defendant contends that the trial court erred in admitting a video recording of
the crime taken from a security camera when Officer Hudson “did not have personal
knowledge [of the contents of the video] nor was involved in the chain of custody.” The
Defendant argues that Officer Hudson was not present during the robbery and, therefore,
“he could not state what happened during the robbery.” The Defendant further argues
that the chain of custody was not established because Officer Hudson “did not view the
video until more than [forty-five] minutes had passed” and suggests that the footage
could have been tampered with during that time. The State responds that the trial court
did not err in admitting the video during Officer Hudson’s testimony. The State further
responds that any possible error was ultimately harmless because Mr. Jackson testified
that the video fairly and accurately depicted the robbery.

       Tennessee Rule of Evidence 901(a) provides that “[t]he requirement of
authentication or identification as a condition precedent to admissibility is satisfied by
evidence sufficient to the court to support a finding by the trier of fact that the matter in
question is what its proponent claims.” One example of authentication provided by Rule
901 is testimony from a witness with knowledge “that a matter is what it is claimed to
be.” Tenn. R. Evid. 901(b)(1). As such, testimony from a witness that a video recording
of a crime fairly and accurately portrays the offense as it occurred is sufficient to
authenticate the video. State v. Williams, 913 S.W.2d 462, 465 (Tenn. 1996); State v.
Bruce C. Reliford, No. W2007-02899-CCA-R3-CD, 2010 WL 1610517, at *4 (Tenn.
Crim. App. Apr. 19, 2010).

       Here, any error in admitting the video during Officer Hudson’s testimony was
ultimately harmless given Mr. Jackson’s testimony that it fairly and accurately portrayed
the robbery. See State v. Osayamien Ogbeiwi, No. W2010-00117-CCA-R3-CD, 2011
WL 3276188, at *12 (Tenn. Crim. App. July 29, 2011) (concluding that the trial court did
not make “a clear mistake” when it admitted security camera footage because it was
introduced during the testimony of the police officer who reviewed and retrieved the
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footage shortly after the offense, the video “supplemented the testimonies” of witnesses,
and the defendant admitted to being “the gunman seen on the video shooting the victim”).

       With respect to the Defendant’s argument that the chain of custody was not
established, the record belies his argument that the footage could have been tampered
with because Officer Hudson waited over forty-five minutes to view the footage. Officer
Hudson was delayed in viewing the footage because the gas station owner was needed to
access the security camera system. Officer Hudson testified that once the owner arrived,
he viewed the footage with the owner and Mr. Jackson. Still, the technician Sgt. Taylor
sent to retrieve the footage did not testify at trial; therefore, the chain of custody was not
technically complete. However, “[a]ny failure in the chain of custody was . . . remedied
by” Mr. Jackson’s testimony, which “confirmed that the [video] fairly and accurately
depicted the robbery.” State v. Robert S. Clark, No. W2001-00921-CCA-R3-CD, 2002
WL 1841721, at *5 (Tenn. Crim. App. Aug. 5, 2002).

                               II. Sufficiency of the Evidence

        The Defendant contends that the evidence was insufficient to sustain his
conviction. The Defendant argues that the State failed to establish his identity as the
perpetrator. Specifically, the Defendant focuses on the “unreliability” of Mr. Jackson’s
identification. The State responds that the evidence was sufficient to sustain the
Defendant’s conviction.

       An appellate court’s standard of review when the defendant questions the
sufficiency of the evidence on appeal is “whether, after viewing 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). This court does not reweigh the evidence, rather, it presumes that the jury
has resolved all conflicts in the testimony and drawn all reasonable inferences from the
evidence in favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984);
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness
credibility, conflicts in testimony, and the weight and value to be given to evidence were
resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

      A guilty verdict “removes the presumption of innocence and replaces it with a
presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the
evidence is insufficient to support the jury’s verdict.” Bland, 958 S.W.2d at 659; State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). A guilty verdict “may not be based solely
upon conjecture, guess, speculation, or a mere possibility.” State v. Cooper, 736 S.W.2d
125, 129 (Tenn. Crim. App. 1987). However, “[t]here is no requirement that the State’s
proof be uncontroverted or perfect.” State v. Williams, 657 S.W.2d 405, 410 (Tenn.
1983). Put another way, the State is not burdened with “an affirmative duty to rule out
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every hypothesis except that of guilt beyond a reasonable doubt.” Jackson, 443 U.S. at
326.

       The foregoing standard “applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of [both] direct and circumstantial evidence.”
State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). Our supreme
court has held that circumstantial evidence is as probative as direct evidence. Dorantes,
331 S.W.3d at 379-81. In doing so, the supreme court rejected the previous standard
which “required the State to prove facts and circumstances so strong and cogent as to
exclude every other reasonable hypothesis save the guilt of the defendant, and that
beyond a reasonable doubt.” Id. at 380 (quoting Crawford, 470 S.W.2d at 612) (internal
quotation marks omitted).

        Instead, “direct and circumstantial evidence should be treated the same when
weighing the sufficiency of such evidence.” Dorantes, 331 S.W.3d at 381. The reason
for this is because with both direct and circumstantial evidence, “a jury is asked to weigh
the chances that the evidence correctly points to guilt against the possibility of inaccuracy
or ambiguous inference.” Id. at 380 (quoting Holland v. United States, 348 U.S. 121, 140
(1954)). To that end, the duty of this court “on appeal of a conviction is not to
contemplate all plausible inferences in the [d]efendant’s favor, but to draw all reasonable
inferences from the evidence in favor of the State.” State v. Sisk, 343 S.W.3d 60, 67
(Tenn. 2011).

        The identity of the perpetrator “is an essential element of any crime.” State v.
Rice, 184 S.W.3d 646, 662 (Tenn. 2006). “The credibility of the witnesses and the
accuracy of their identification are matters entrusted to the jury.” State v. Jimmy Barnes,
No. 72, 1988 WL 82969, at *1 (Tenn. Crim. App. Aug. 10, 1988). Mr. Jackson was
intensely cross-examined about his inability to identify the Defendant at the October
2011 hearing. However, the jury chose to accredit his identification of the Defendant at
trial, and we will not disturb that determination on appeal. Furthermore, the jury was
able to view the security camera footage, which showed the Defendant looking directly
into the camera on several occasions. Accordingly, we conclude that the evidence was
sufficient to establish the Defendant’s identity as the perpetrator of the offense and to
sustain his conviction.

                                      CONCLUSION

        Upon consideration of the following and the record as a whole, the judgment of
the trial court is affirmed.

                                                   _________________________________
                                                   D. KELLY THOMAS, JR., JUDGE
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