        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs November 12, 2015


                  STATE OF TENNESSEE v. STACEY GREEN

                  Appeal from the Circuit Court for Marion County
                     No. 9625A     Thomas W. Graham, Judge




               No. M2015-00323-CCA-R3-CD – Filed February 1, 2016
                        _____________________________

The Defendant, Stacey Green, appeals from his convictions for aggravated robbery,
burglary, aggravated assault, and three counts of facilitation of aggravated robbery. The
Defendant contends that the trial court erred in denying his motion to suppress evidence
relating to a victim‟s pretrial identification of the Defendant in a photographic lineup and
that the evidence presented at trial was insufficient to support his convictions. Following
a thorough review of the record and applicable law, we affirm the judgments of the trial
court. However, we remand the matter to the trial court for the entry of a corrected
judgment in Count 2.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the Court, in which NORMA
MCGEE OGLE and CAMILLE R. MCMULLEN, JJ., joined.

Jay Underwood, Chattanooga, Tennessee, for the appellant, Stacey Green.

Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant
Attorney General; Neal Pinkston, District Attorney General; and David O. McGovern,
Assistant District Attorney General, for the appellee, State of Tennessee.
                                             OPINION

                           I. Factual and Procedural Background

        This appeal involves an armed robbery that took place at a garage in Haletown in
August 2013. In October 2013, the Marion County Grand Jury indicted the Defendant1
for the following offenses in connection with the robbery:2

       Count                           Offense                                  Victim
         1                       Aggravated Robbery                           Paul Turner
         2                       Aggravated Robbery                          Terry Ballard
         3                       Aggravated Robbery                      Christopher Haston
         4                       Aggravated Robbery                          James Tucker
         5                       Aggravated Robbery                     Christopher Timberlake
         6                 Felon in Possession of a Weapon                       N/A
         7                 Felon in Possession of a Weapon                       N/A
         9                             Burglary                         Big Daddy‟s Fireworks
        10                        Aggravated Assault                         Terry Ballard

       Prior to trial, the Defendant filed a Motion to Suppress Identification, requesting
that the trial court suppress victim Christopher Timberlake‟s pretrial identification of the
Defendant in a photographic lineup. The trial court denied the Defendant‟s motion to
suppress after a hearing. The Defendant then filed a Motion to Sever Offenses, asking
that the trial court sever Count 6 and Count 7 of the indictment. The trial court granted
the Defendant‟s motion and severed Counts 6 and 7 from the remaining counts.

       Following a trial in July 2014, a jury found the Defendant guilty as follows:3

    Count                            Offense                                     Victim
      1               Facilitation of Aggravated Robbery                       Paul Turner
      2                       Aggravated Robbery                              Terry Ballard
      4               Facilitation of Aggravated Robbery                      James Tucker
      5               Facilitation of Aggravated Robbery                 Christopher Timberlake
      9                             Burglary                             Big Daddy‟s Fireworks

       1
          The Defendant was indicted along with a co-defendant, Ronald Gary.
       2
          The indictment found in the record does not include a Count 8.
        3
          At the close of the State‟s case-in-chief, the trial court granted the Defendant‟s motion for
judgment of acquittal as to Count 3, which concerned the aggravated robbery of victim Christopher
Haston.
                                                 -2-
     10                     Aggravated Assault                       Terry Ballard

        For these offenses, the trial court sentenced the Defendant, as a Range II multiple
offender, to a total effective sentence of fourteen years and six months in the Department
of Correction. Thereafter, the Defendant filed a timely Motion for New Trial, which the
trial court denied. This timely appeal followed.

                               Motion to Suppress Hearing

       At a hearing on the Defendant‟s Motion to Suppress Identification, Detective Matt
Blansett of the Marion County Sheriff‟s Department testified that on August 15, 2013, he
investigated an aggravated robbery at Big Daddy‟s Fireworks in Haletown. Detective
Blansett explained that, when he arrived at the location, victims Terry Ballard and
Christopher Timberlake were adamant that they knew some of the suspects that had
robbed them. Detective Blansett recalled that Mr. Timberlake and Mr. Ballard kept
saying that “Little Stacey from South Pittsburg” was one of the assailants. At the time of
the offense, Detective Blansett was familiar with the Defendant and his nickname “Little
Stacey”; however, Detective Blansett believed that the Defendant‟s last name was Bynum
because the Defendant‟s mother‟s name was Flora Bynum. The detective asked Mr.
Ballard and Mr. Timberlake if they meant Stacey Bynum, and Mr. Ballard agreed that it
had been Stacey Bynum who stuck a gun to his head.

       Detective Blansett explained that, as part of his investigation, he prepared a photo
lineup for some of the victims to view possible suspects. On September 25, 2013,
Detective Blansett conducted a photo lineup with Mr. Timberlake. Detective Blansett
described the lineup as consisting of six color photographs, which were obtained from the
jail booking system. All six photos were of African-American men with ear-length to
shoulder-length hair. Detective Blansett testified that, although the victims had already
named the Defendant as one of the suspects, he prepared the photo lineup to ensure that
the victims knew the Defendant. Detective Blansett told Mr. Timberlake that he was
going to show Mr. Timberlake a series of photos and that, if he noticed anyone that was
involved in the robbery, to initial and date the suspect‟s photo. When shown the lineup,
Mr. Timberlake initialed the Defendant‟s photo and dated it.

       On cross-examination, Detective Blansett was shown Mr. Timberlake‟s
handwritten statement from the night of the robbery. Detective Blansett agreed that Mr.
Timberlake‟s handwritten statement did not mention the Defendant. Detective Blansett
explained that he, Mr. Ballard, and Mr. Timberlake were standing in front of the building
where the incident took place, and Mr. Ballard stated that it was “Little Stacey.” Mr.
Timberlake agreed with Mr. Ballard saying, “That‟s who it was. That‟s who it was.”
Detective Blansett stated that Mr. Ballard was “more adamant” because the Defendant
                                          -3-
was Mr. Ballard‟s cousin and Mr. Ballard “couldn‟t believe [the Defendant would] rob
his cousin.” Additionally, Detective Blansett stated that Mr. Timberlake was “shook up
that night” and did not give a detailed written statement. Detective Blansett testified that,
after leaving the crime scene, he went to the police department in Stevenson, Alabama in
an attempt to locate additional suspects, Nick Price and “Little Ron.” Although Mr.
Timberlake and Mr. Ballard were at the Stevenson Police Department when he arrived,
Detective Blansett did not talk with them.

        According to Detective Blansett, he conducted the photo lineup with Mr.
Timberlake and Mr. Ballard at the sheriff‟s department on September 25, 2013. After
viewing the photo lineup and identifying the Defendant, Mr. Timberlake wrote out a
second statement. Detective Blansett did not recall if he discussed with Mr. Timberlake
whether the Defendant had already turned himself in. However, Detective Blansett
testified that he did not discuss anything with Mr. Timberlake before showing him the
lineup. When he was shown the lineup, Mr. Timberlake said, “That‟s Little Stacey” and
identified the Defendant.

       Following Detective Blansett‟s testimony, the Defendant introduced a portion of
Mr. Timberlake‟s testimony from the Defendant‟s preliminary hearing. While the
recording played, the court reporter transcribed Mr. Timberlake‟s preliminary hearing
testimony as follows:4

       Q:     Well, when they got there, you didn‟t say that Stacey Green was one
       of the people that robbed you, did you?

       A:     No.

       Q:     You didn‟t say that?

       A:     No.

       Q:    You told Mr. Gary about this. You didn‟t say anything about Stacey
       Green. At some point y‟all were talking to each other and someone
       suggested it was Stacey Green; right?

       A:   No. He was talking about—we was [sic] talking and he said Stacey
       knowed [sic] him.


       4
         It is unclear from the transcript whether the State or the Defendant was questioning Mr.
Timberlake during this portion of the preliminary hearing.
                                              -4-
       Q:     Say it again, now.

       A:     (Inaudible) said Stacey knowed [sic] him.

       Q:     But you didn‟t say anything about Stacey?

       A:     (Inaudible.)

       Q:   So, Gary . . . What‟s Gary‟s last name? (Inaudible) What was his
       name? Terry?

       A:     Yeah.

       Q:     So Terry said he thought it was Stacey, but you never said anything
       about Stacey?

       A:     I didn‟t give Stacey‟s name that night, no.

       Q:     Well, you didn‟t tell the detective who the guy was that did that?

       A:     Uh?

       Q:     You didn‟t tell the investigators that you know anybody else other
       than this gentleman here; right?

       A:     I wrote down the person, that‟s what I wrote down, the first night,
       yes.

       Q:   So you wrote down a statement and said nothing about Stacey
       Green—

        At the conclusion of the hearing, the trial court found that there was “nothing
suggestive about the lineup itself. The folks in the photo are very similar in
characteristics to the defendants. Nothing is really suggestive.” The trial court stated that
it did not find “any reason” to suppress Mr. Timberlake‟s identification of the Defendant
and denied the Defendant‟s motion in a written order.

                                           Trial

      At trial, James Tucker testified that on August 15, 2013, he and several friends
were playing cards at a garage owned by Big Daddy‟s Fireworks. Mr. Tucker explained
                                            -5-
that he had played cards at this location for years. Mr. Tucker arrived at the garage that
Thursday night around 7:00 p.m. or 7:30 p.m. He and four other men—Terry Ballard,
Paul Turner, Chris Timberlake and another man known to Mr. Tucker by the nickname
“Flake”—sat around an oval poker table that was set up inside the garage in front of the
open garage door. Mr. Tucker recalled that he was seated at the far end of the table,
facing directly towards the garage door, with Mr. Timberlake to his right and Mr. Ballard
to his left. Around 10:00 p.m., the group was discussing ending the poker game because
they did not have enough players when Mr. Tucker noticed several men coming through
the gate to the chain link fence surrounding the garage. After the men got through the
chain link fence, they ran into the garage and began “hollering and yelling” for everyone
to “[g]et down, get on the floor.” Mr. Tucker recalled that “[n]obody really reacted right
at first, because we just thought it was a joke.” He stated that it was not unusual for
someone to join the poker game at 10:00 p.m., after getting off work. However, Mr.
Tucker noticed that the men who entered the garage had guns. He saw one man standing
behind Mr. Timberlake, holding a .38 semi-automatic pistol, and a man behind Mr.
Ballard with a revolver. Mr. Tucker testified that there was also a man behind him who
was poking him in the back of the head with a gun, but Mr. Tucker could not see this
man. Mr. Tucker testified that, when it became evident that the men were not joking, he
got down on the ground. Mr. Timberlake, however, refused the assailants‟ orders,
saying, “I‟m not getting on the ground. Take what you want, but I‟m not laying [sic]
down on the floor . . . .” Mr. Tucker testified that, as Mr. Timberlake refused to do as
instructed, Mr. Tucker watched the man behind Mr. Timberlake, looking at the man “eye
to eye . . . right in his face[.]” When the man standing behind Mr. Tucker saw this, he put
a gun to the back of Mr. Tucker‟s head and ordered Mr. Tucker to, “Quit watching him.”
The man removed about $120 from Mr. Tucker‟s wallet and then threw the wallet on the
garage floor.

       Regarding the identity of the assailants, Mr. Tucker testified that, although the
men had shirts pulled up around their faces and tied in back, he could see their eyes and
noses. Additionally, some of the men‟s shirts “kept falling down,” and the men would
have to pull them back into place. Mr. Tucker testified that he got a “good look” at the
man holding a gun on Mr. Timberlake, and he identified the man as Ron Gary, or “Little
Ron.” Mr. Tucker stated that he had played cards with Mr. Gary, before and he
recognized Mr. Gary‟s face and voice. Mr. Tucker also saw the man standing behind Mr.
Ballard, but Mr. Tucker “didn‟t get a good look at his face.” Accordingly, Mr. Tucker
could not identify the man behind Mr. Ballard. However, Mr. Tucker estimated that the
man was a little over six feet tall and had dreadlocks. According to Mr. Tucker, the
robbery lasted five to seven minutes. Once the assailants left the garage, Mr. Tucker and
the other victims waited about thirty seconds and ran outside. They did not see anyone
and did not see any vehicles driving away.

                                           -6-
       On cross-examination, Mr. Tucker stated that the weekly poker games had been
going on for about five or six years and that the week before the robbery the group had
decided to move the game to Thursday nights. Mr. Tucker recalled that Mr. Gary, whom
he had known for about a year and a half, was in attendance at the poker game when it
was announced that the game would move to Thursday night. Mr. Tucker testified that
he had known the Defendant for about fifteen years, but he had not seen the Defendant
for two or three years. He recalled that, on the night of the robbery, he and the other
victims had bought poker chips to play in the game. The players‟ money was kept in a
cash box on the poker table, and the assailants took the money out of the cash box. Mr.
Tucker stated that two people from the group called 911 after the robbery. In an attempt
to locate the suspects, Mr. Ballard and Mr. Timberlake drove off in Mr. Timberlake‟s car.
Mr. Ballard and Mr. Timberlake returned to the garage about five minutes later and said
that they had seen the suspects getting off the interstate “on the other side” and had
decided to return to the garage.

       Paul Turner testified that he was the manager of Big Daddy‟s Fireworks which
was owned by L.W. Lloyd. Mr. Turner explained that Mr. Lloyd also owned the building
where the poker game was played on August 15, 2013. As Mr. Lloyd‟s representative,
Mr. Turner testified that the men who entered the garage and robbed the victims did not
have the owner‟s permission to do so. Mr. Turner recalled that he began playing cards
around 7:00 p.m. that night and that there were five men in total playing at the time of the
robbery. The garage was open, and the group was seated around an oval table just inside
the door. Mr. Turner testified that, as they played cards, he saw a couple of men come
through the gate of the chain link fence. Initially, he did not pay much attention to the
men but then, “all of a sudden,” Mr. Turner heard the men running and yelling. At least
four assailants entered the garage holding guns. Mr. Turner recalled that one of the men
turned his chair over and put a gun in Mr. Turner‟s face. Mr. Turner stated that he
“didn‟t see nothing [sic] but the gun.” The man took $500 of the poker money plus an
additional $100 to $150 from Mr. Turner. Mr. Turner estimated that the event lasted two
to three minutes. After the assailants left the garage, Mr. Turner called 911. Mr. Turner
did not see the direction the suspects went, but someone told him that the men were
headed towards Alabama. In turn, Mr. Turner reported this information to the 911
dispatcher. Mr. Turner testified that he also went across the street to ask some people
standing by a car if they had seen anything but they had not. Mr. Turner did not see Mr.
Timberlake or Mr. Ballard leave the scene after the robbery. He testified that the game
was a private poker game and that, to his knowledge, the Defendant had never played in
the game.

       Christopher Timberlake testified that he was also at the poker game on August 15,
2013, when the robbery occurred. Mr. Timberlake stated that he knew the Defendant
prior to that night and that he had never had any problems with the Defendant.
                                           -7-
Regarding the robbery, Mr. Timberlake testified, “We [were] playing and got this big bay
door open, and five people come running in with guns pointed.” According to Mr.
Timberlake, the men had shirts wrapped around their faces, which were covering their
mouths and necks. The men told everyone to “get down,” but Mr. Timberlake refused to
get out of his chair. Mr. Timberlake recalled that one of the assailants held a gun on Mr.
Ballard and told Mr. Ballard to get onto the floor. Mr. Timberlake recognized the man as
the Defendant. The Defendant then “popped” Mr. Ballard on the back of the head and
searched Mr. Ballard‟s pockets. Mr. Timberlake testified that, during this time, he heard
the Defendant and Mr. Ballard talking. Mr. Ballard told the Defendant, “Cuz, you know
me.” Mr. Timberlake stated that he was sure of his identification of the Defendant,
whose nickname was “Little Stacey.” Mr. Timberlake identified Mr. Gary as the man
who pointed a gun at him during the robbery. According to Mr. Timberlake, Mr. Gary
put a gun to Mr. Timberlake‟s head, went into his pockets, and took his money. He
recalled that the Defendant had a revolver and Mr. Gary had a semi-automatic pistol. Mr.
Timberlake estimated that the robbery took less than ten minutes. He acknowledged that,
at one point, he had mistakenly thought a man named Nick Price was involved in the
robbery.

       After the suspects left the garage, Mr. Timberlake and Flake got into Mr.
Timberlake‟s car to look for the robbers. Mr. Timberlake was angry and upset, and Flake
was “in shock.” Mr. Timberlake drove down the interstate for a while, but then Flake
said to turn around. They returned to the garage to check on the other victims and to
speak with law enforcement officers. Mr. Timberlake was later shown two photographic
lineups by Detective Blansett. From these lineups, Mr. Timberlake identified the
Defendant as the person who had robbed Mr. Ballard and Mr. Gary as the man who
robbed him. Mr. Timberlake explained that he knew who the assailants were before
looking at the lineups.

       On cross-examination, Mr. Timberlake stated that he had been playing in the
poker game at the garage for about three years and that he introduced Mr. Gary to the
game about two years before the robbery. Mr. Timberlake explained that, during the
robbery, the person he initially identified as Mr. Price ran towards Mr. Turner, grabbed
him, and put him onto the floor. Mr. Timberlake stated that he “caught a glimpse” of Mr.
Gary as Mr. Gary came into the garage and that Mr. Gary‟s mask partially fell down as
Mr. Gary ordered the victims to the ground. Mr. Timberlake then saw the Defendant
standing across the table behind Mr. Ballard. Mr. Timberlake knew the Defendant
because he had worked with the Defendant‟s mother and the Defendant visited her at
work. Mr. Timberlake acknowledged that he signed a written statement the night of the
robbery which read, “Lil Ron Gary held a gun to my head and took everything that I
had.” When asked why he did not mention the Defendant in this statement, Mr.
Timberlake explained that he “wasn‟t worried about Little Stacey” because the Defendant
                                          -8-
did not put a gun to his head. Mr. Timberlake further explained that he “was in a state of
shock a little bit.”

        Mr. Timberlake recalled that, after the robbery, he waited about two minutes and
then ran to his car with the intent to hunt down the assailants. Mr. Timberlake explained
that he was furious but did not have a plan. He was gone for a few minutes and then
returned to the garage. He told Mr. Turner that he thought the suspects were heading to
Alabama. After speaking to police, Mr. Timberlake and Mr. Ballard went to Stevenson,
Alabama,5 looking for Mr. Price‟s house, but Stevenson police officers stopped them.
Mr. Timberlake stated that, during the robbery, the Defendant had a blue shirt wrapped
around his face, but he could see the Defendant from the nose up. However, Mr.
Timberlake agreed that he did not have on his glasses that night and that it had been years
since he had seen the Defendant. Mr. Timberlake testified that, although the assailants
stole his wallet, Mr. Turner later found his driver‟s license on the side of the road.

        Terry Ballard testified that he was at the poker game on the night of the robbery.
Mr. Ballard recalled that he was playing poker with his friends when about five men
rushed through the door. The men told them to “get down, get down” and then robbed
them. Mr. Ballard identified the Defendant as the man that robbed him at gunpoint. He
explained that, although the Defendant had something covering his face, the cloth fell and
he saw the Defendant‟s “whole face” and heard the Defendant‟s voice. Mr. Ballard
testified that, during the robbery, he had a conversation with the Defendant and told the
Defendant, “I‟m your cousin, I know you‟re not going to kill me.” Mr. Ballard testified
that the Defendant was his cousin. He stated that he had no reason to want to get the
Defendant into trouble and that, before the night of the robbery, he had always gotten
along with the Defendant and the Defendant‟s family.

        On cross-examination, Mr. Ballard explained that, after the suspects left, he ran
out of the garage, hid near some junk cars, and called 911. He acknowledged that he
mentioned Mr. Gary and Mr. Price to the police dispatcher but he did not mention the
Defendant‟s name during the 911 call. Mr. Ballard explained, “I was scared.” He stated
that the Defendant hit him in the back of the head with a gun, pushed his head down, and
then rummaged through his pockets. Mr. Ballard stated that he did not see a getaway car
but recalled that someone thought they saw Mr. Price‟s car. After speaking to police, Mr.
Ballard and Mr. Timberlake went to Stevenson, Alabama to look for Mr. Price.

      Mr. Ballard explained that the Defendant took his keys and wallet during the
robbery. Following the robbery, Mr. Ballard called another cousin, Rashad Tipton, and

      5
           It appears from the testimony that Mr. Price, Mr. Gary, and Mr. Ballard were from Stevenson,
Alabama.
                                                  -9-
asked if Mr. Tipton knew anything about the incident. Mr. Ballard told Mr. Tipton that
he needed his keys to get into his house, and Mr. Tipton said that he would see if he
could find out anything about the robbery. Mr. Ballard testified that he later found his
keys based on a tip from Mr. Tipton.

       Detective Matt Blansett of the Marion County Sheriff‟s Department testified that,
on August 15, 2013, he responded to the storage garage after being advised that there had
been an armed robbery at the location. When he arrived, Detective Blansett took over the
investigation. Detective Blansett collected no physical evidence at the scene tying the
Defendant to the robbery. He obtained surveillance footage from Glenn‟s Wrecker
Service, but the quality of the video was “very poor.” However, Detective Blansett spoke
to Mr. Ballard and Mr. Timberlake, and they gave him the names of several of the
suspects. Based upon this information, Detective Blansett attempted to locate Mr. Price,
Mr. Gary, and the Defendant. He went to Stevenson, Alabama and located Mr. Price that
night, but he could not locate the Defendant or Mr. Gary. According to Detective
Blansett, Mr. Price was fully cooperative with the investigation, and he determined that
Mr. Price was not involved. The Defendant eventually turned himself into police after
learning that there were warrants for his arrest. In an interview with Detective Blansett,
the Defendant claimed that he had been to Rudder‟s Market on the night of the robbery,
where he bought chicken and pizza. However, Detective Blansett testified that, when he
looked at the surveillance video from the market and store receipts, he determined that
the Defendant had not been at the store when the Defendant claimed.

        Detective Blansett stated that, several weeks after the robbery, he showed Mr.
Timberlake photo lineups containing Mr. Gary and the Defendant. He recalled that Mr.
Timberlake had no hesitation when he identified the Defendant in the photo lineup.
Detective Blansett explained, “When I handed [Mr. Timberlake] the lineup I advised him
to look at the lineup and if he recognized anyone in the lineup to initial and date it, and he
said, „That‟s him. That‟s Little Stacey.‟”

                                            II. Analysis

                                Motion to Suppress Identification

      On appeal, the Defendant contends that the trial court erred in denying his Motion
to Suppress Identification. He argues that Detective Blansett must have mentioned the
Defendant‟s name to Mr. Timberlake before the photographic lineup6 was shown and,

        6
         We note that the record does not contain the original photo lineup used by Detective Blansett.
The record contains photocopies of the lineup which are in black and white and illegible/distorted.
However, we have concluded it is unnecessary to have the original copy of the lineup to resolve the issue
                                                 - 10 -
therefore, the lineup was unnecessarily suggestive, violates due process, and should have
been suppressed by the trial court. The State responds that the Defendant has not
presented any proof, beyond mere speculation, that Detective Blansett suggested to Mr.
Timberlake that the Defendant committed these offenses and, as a result, the trial court
did not err in refusing to suppress the pretrial identification by Mr. Timberlake. We
agree with the State.

       When reviewing a motion to suppress, this court is bound by the trial court‟s
findings of fact unless the evidence preponderates otherwise. State v. Odom, 928 S.W.2d
18, 23 (Tenn. 1996). Questions of credibility, the weight and value of the evidence, and
resolutions of conflicts in the evidence are resolved by the trial court. Id. The prevailing
party is entitled to the strongest legitimate view of the evidence and all reasonable
inferences that may be drawn therefrom. Id. We review the trial court‟s conclusions of
law de novo. State v. Carter, 160 S.W.3d 526, 531 (Tenn. 2005). In evaluating the
correctness of a trial court‟s ruling on a pretrial motion to suppress, this court may
consider the proof adduced both at the suppression hearing and at trial. State v. Henning,
975 S.W.2d 290, 299 (Tenn. 1998).

        “Convictions based on eyewitness identification at trial following a pre-trial
photographic identification will be set aside only if the photographic identification was
„so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable
misidentification.‟” State v. Robinson, 146 S.W.3d 469, 516 (Tenn. 2004) (quoting
Simmons v. United States, 390 U.S. 377, 384 (1968)). Although the pretrial
photographic identification may be suggestive, the identification may satisfy due process
as reliable and admissible when considering the totality of the circumstances. Id. (citing
State v. Brown, 795 S.W.2d 689, 694 (Tenn. Crim. App. 1990)). This court considers the
following five factors in determining whether a suggestive pretrial photographic
identification satisfies due process: (1) the opportunity of the witness to view the
criminal at the time of the crime; (2) the witness‟s degree of attention; (3) the accuracy of
the witness‟s prior description of the criminal; (4) the level of certainty demonstrated by
the witness at the confrontation; and (5) the time between the crime and the
confrontation. Id. at 517 (citing Neil v. Biggers, 409 U.S. 188, 199 (1972) and State v.
Strickland, 885 S.W.2d 85, 88 (Tenn. Crim. App. 1993)).

      Upon review, we conclude that the trial court did not err in denying the
Defendant‟s Motion to Suppress Identification because there was nothing suggestive


presented. At the hearing on the motion to suppress, Defense counsel said that “this is not a typical
suggestive lineup factual situation,” and that he was not making the argument that the photos used in the
lineup were “so dissimilar to [the Defendant][.]”

                                                 - 11 -
about the photographic lineup or the way in which it was conducted. Detective Blansett
testified that, when he arrived at the crime scene on the night of the offenses, both Mr.
Timberlake and Mr. Ballard agreed that “Little Stacey” was one of the assailants. During
his subsequent investigation, Detective Blansett prepared a photographic lineup which
consisted of six color photographs that he obtained from the jail booking system. All six
photos were of African-American men with ear-length to shoulder-length hair. In
conducting the lineup, Detective Blansett advised Mr. Timberlake that he was going to
show Mr. Timberlake a series of photos and that, if Mr. Timberlake noticed anyone that
was involved in the robbery, Mr. Timberlake should initial and date the suspect‟s photo.
When shown the lineup, Mr. Timberlake initialed and dated the Defendant‟s photo and
said, “That‟s Little Stacey.” Despite the Defendant‟s claim to the contrary, Detective
Blansett testified that he did not discuss anything with Mr. Timberlake before showing
him the lineup. There is simply no testimony of any sort demonstrating that Detective
Blansett suggested to Mr. Timberlake that the Defendant was involved in the robberies.
Because the photographic identification was not “so impermissibly suggestive as to give
rise to a very substantial likelihood of irreparable misidentification,” the trial court
properly denied the Defendant‟s Motion to Suppress Identification, and the Defendant is
not entitled to relief.

                               Sufficiency of the Evidence

       The Defendant contends that the State did not sufficiently establish that he was
one of the perpetrators of the offenses. He argues that both Mr. Timberlake and Mr.
Ballard were not credible in their identification testimony and that the State failed to
present any physical evidence tying him to the robbery. He does not challenge the
sufficiency of the evidence with regard to any of the other elements of the offenses for
which he was convicted. The State responds that this issue is without merit because it
sufficiently proved that the Defendant committed the crimes for which he was convicted.
Again, we agree with the State.

        The applicable standard of review for a sufficiency of the evidence challenge 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) (emphasis in original);
see also Tenn. R. App. P. 13(e). A guilty verdict “removes the presumption of innocence
and replaces it with a presumption of guilt, and the Appellant has the burden of
illustrating why the evidence is insufficient to support the jury‟s verdict.” State v. Bland,
958 S.W.2d 651, 659 (Tenn. 1997); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
Our standard of review “is the same whether the conviction is based upon direct or
circumstantial evidence.” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting
State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)) (internal quotation marks omitted).
                                           - 12 -
       In a jury trial, the weight and credibility given to the testimony of witnesses, as
well as the reconciliation of conflicts in that testimony, are questions of fact best
determined by the jury, since they saw and heard the witnesses, and by the trial judge,
who concurred in and approved the verdict. Bland, 958 S.W.2d at 659. This court will
not reweigh the evidence. Id. On review, the “State must be afforded the strongest
legitimate view of the evidence and all reasonable inferences that may be drawn
therefrom.” State v. Vasques, 221 S.W.3d 514, 521 (Tenn. 2007).

       The identity of the perpetrator is “an essential element of any crime.” State v.
Rice, 184 S.W.3d 646, 662 (Tenn. 2006). Identity may be established with circumstantial
evidence alone, and the “jury decides the weight to be given to circumstantial evidence,
and [t]he inferences to be drawn from such evidence . . . .” Id. (internal quotation marks
omitted). The question of identity is a question of fact left to the trier of fact to resolve.
State v. Crawford, 635 S.W.2d 704, 705 (Tenn. Crim. App. 1982).

        Although the Defendant is correct that the State lacked physical evidence tying the
Defendant to the crime scene, the State presented the testimony of Mr. Ballard, who
positively identified the Defendant as the person who put a gun to his head and took his
money. Mr. Ballard testified that the Defendant was his cousin and that he was familiar
with the Defendant‟s appearance and voice. Moreover, Mr. Ballard stated that he heard
the Defendant‟s voice and saw the Defendant‟s “whole face” when the cloth covering the
Defendant‟s face fell down during the robbery. Mr. Ballard explained how he recognized
the Defendant and told the Defendant, “I‟m your cousin, I know you‟re not going to kill
me.”
        Mr. Timberlake also testified that he was familiar with the Defendant, and he saw
the Defendant standing across the table behind Mr. Ballard during the robbery. He
explained that, although the Defendant had a blue shirt wrapped around his face, he could
see the Defendant from the nose up. Following the robbery, Mr. Timberlake picked the
Defendant out of a photo lineup, and he testified that he was sure of his identification of
the Defendant. Moreover, Mr. Timberlake‟s failure to include the Defendant‟s name in
his first written statement to police was explained at trial. Detective Blansett testified
that Mr. Timberlake was “shook up that night” and did not give a detailed written
statement. Mr. Timberlake also stated that he “was in a state of shock” following the
robbery. Viewing this testimony in the light most favorable to the State, we conclude
that the State sufficiently proved the Defendant‟s identity, and the Defendant is not
entitled to relief.




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                                    III. Conclusion

       For the aforementioned reasons, the judgments of the trial court are affirmed.
However, we note that the judgment of conviction for Count 2 fails to list the conviction
offense and corresponding Tennessee Code Annotated section for the Defendant‟s
conviction of aggravated assault. We, therefore, remand this matter to the trial court for
the entry of a corrected judgment.



                                                   _________________________________
                                                   ROBERT L. HOLLOWAY, JR., JUDGE




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