         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT JACKSON             FILED
                         MAY 1999 SESSION
                                                      July 8, 1999

                                                 Cecil Crowson, Jr.
                                                Appellate Court Clerk
STATE OF TENNESSEE,             )
                                )    NO. 02C01-9807-CR-00206
      Appellee,                 )
                                )    SHELBY COUNTY
VS.                             )
                                )    HON. ARTHUR T. BENNETT,
HARRY L. ROBINSON,              )    JUDGE
                                )
      Appellant.                )    (Especially Aggravated Robbery;
                                 )    Criminally Negligent Homicide)



FOR THE APPELLANT:                   FOR THE APPELLEE:

JAMES V. BALL                        PAUL G. SUMMERS
217 Exchange Ave.                    Attorney General and Reporter
Memphis, TN 38105-3503
                                     J. ROSS DYER
                                     Assistant Attorney General
                                     Cordell Hull Building, 2nd Floor
                                     425 Fifth Avenue North
                                     Nashville, TN 37243-0493

                                     WILLIAM L. GIBBONS
                                     District Attorney General

                                     THOMAS D. HENDERSON
                                     GLEN BAITY
                                     Asst. District Attorneys General
                                     201 Poplar Ave. , Suite 301
                                     Memphis, TN 38103-1947




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                     OPINION



      Defendant, Harry L. Robinson, was charged with premeditated murder,

felony murder, attempted first degree murder, and two counts of especially

aggravated robbery.    A Shelby County jury convicted defendant of criminally

negligent homicide and two counts of especially aggravated robbery, and acquitted

him of the remaining charges. The trial court sentenced defendant as a Range I

standard offender to two concurrent twenty-five-year terms for the robberies, and

a consecutive two-year term for the homicide. In this appeal as of right, defendant

contends that the evidence is insufficient to support his convictions, and that the

jury's verdicts are inconsistent. Upon our review of the record, we AFFIRM the

judgment below.



                                      FACTS



      On April 16, 1994, Sung Su Kim was working in his small grocery store with

his aunt, Chae Sim Kim. He testified that two young men came in and tried to buy

beer. He refused to sell it to them because they lacked identification. The men left

and returned a few minutes later, claiming to have identification. Mr. Kim again

refused to sell them beer because they were too young. The men left again. Some

time later he heard someone say, "Hey," and he turned around. The two men had

returned and one of them shot him in the face and chest. After he fell to the floor,

he was shot in the leg. While on the floor, he heard another gunshot. He heard the

sound of coins, some mumbling, and one person saying, "Let's go, let's go." After

the attackers left, Mr. Kim crawled to the phone and called 911. Ms. Kim was on the

floor behind the counter, unconscious. Mr. Kim could not recall whether he saw a

third man in the store. Ms. Kim died as a result of a gunshot wound to the head;

Mr. Kim miraculously survived.




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       Carolyn Gunn testified that she drove up to Kim's store with her son. Her son

told her not to get out of the car because he heard shooting. She then saw at least

one man run out and thought she remembered another person running out with him.

She testified the two men ran to a white car in which a third person was sitting.



       Kevin Dewayne Parker, Gunn's son, testified that he heard gunshots when

he and his mother arrived at the store. He saw two teenaged men run out of the

store, get into a white car and drive off. A third person was in the car. Parker

recognized co-defendant McClure as one of the two men who ran out of the store.



       Jeanette Newby testified that her nephew, Charles Speed, along with

McClure and defendant, came to her apartment after the robbery. They had money

and a gun, and Speed told McClure that he should not have killed those people.

McClure told Speed not to worry as he had killed other people and gotten away with

it. Defendant said, "they couldn't even get the cash register open." They split the

money three ways.     Defendant took a share of the proceeds, but Speed refused

to take his share. McClure left the gun at her apartment. She called the police

after the three men left and turned the gun over to them.



       Defendant's statement to the police was read to the jury, and he also

testified. According to the defendant, he spent the day riding around with McClure

and Speed. McClure showed them a .25 caliber handgun and talked about robbing

someone named "Baby Brother." McClure abandoned this plan because they had

only one gun. Later, Speed and McClure discussed robbing a store. The three then

visited two stores but did not rob them. Eventually, they stopped at Mr. Kim's store.

According to defendant, Speed tried to buy beer but could not because he had no

identification. McClure also tried and failed. Finally, they asked an older man to

buy the beer, which he did.




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         As they were preparing to leave, Speed and McClure discussed robbing the

store.    McClure stated he was going to shoot the man but not the woman.

Defendant testified that McClure told him he (defendant) was going to drive. When

defendant refused, McClure threatened him with the gun. Defendant then got in the

driver's seat and Speed went in the store. McClure followed him several seconds

later.



          Defendant testified that he heard five gunshots, and then Speed and

McClure walked out of the store and to the car. As defendant started to drive off,

they told him he was not driving fast enough, and McClure told defendant he had

killed two people. Defendant stopped the car, and McClure ordered him to get out

and let Speed drive. They drove to a restaurant, parked the car, and got out.

Defendant testified that he walked one way and Speed and McClure walked

another. He denied going to Newby's apartment and denied taking any money

from the robbery.



                         SUFFICIENCY OF THE EVIDENCE



         Defendant first contends that there is not sufficient proof to sustain his two

convictions for especially aggravated robbery. When an accused challenges the

sufficiency of the convicting evidence, our standard of review is whether, after

reviewing the evidence in a 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). Questions concerning the

credibility of the witnesses, the weight and value to be given the evidence, as well

as all factual issues raised by the evidence are resolved by the trier of fact, not this

Court. State v. Tuttle, 914 S.W.2d 926, 932 (Tenn. Crim. App. 1995). Nor may this

Court reweigh or re-evaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835

(Tenn. 1978). On appeal, the state is entitled to the strongest legitimate view of the

evidence and all inferences therefrom. Id. Because a verdict of guilt removes the



                                           4
presumption of innocence and replaces it with a presumption of guilt, the accused

has the burden in this Court of illustrating why the evidence is insufficient to support

the verdict returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914

(Tenn. 1982).



                         A. Especially Aggravated Robbery



           Especially aggravated robbery consists of the following elements:

                  (1) the intentional or knowing theft of property from the
                      person of another by violence or putting the person in fear;

                  (2) accomplished with a deadly weapon; and

                  (3) the victim suffers serious bodily injury.

Tenn.Code Ann. §§ 39-13-401(a), 403(a). "Serious bodily injury" is defined as

bodily injury involving a substantial risk of death; protracted unconsciousness;

extreme physical pain; protracted or obvious disfigurement; or protracted loss or

substantial impairment of a function of a bodily member, organ or mental faculty.

Tenn.Code Ann. § 39-11-106(a)(34). There is no question but that especially

aggravated robberies were committed.1 Therefore, the only issue is whether the

evidence is sufficient to prove defendant's role in these crimes.



       Although there was no testimony that defendant entered the store or that he

pulled the trigger, such proof is not necessary to convict defendant. "A person is

criminally responsible for an offense committed by the conduct of another if,

"[a]cting with intent to promote or assist the commission of the offense, or to benefit

in the proceeds or results of the offense, the person solicits, directs, aids, or




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       One victim was killed. The other was shot three times, including once in the face
and once in the chest, requiring hospitalization for approximately a week.

                                            5
attempts to aid another person to commit the offense." Tenn.Code Ann. § 39-11-

402(2).2 Clearly, defendant aided in the commission of the robberies by driving the

"getaway" car, even if only for a short distance.



       Defendant denies that he participated willingly, claiming that he acted under

duress. Newby testified that defendant accompanied her nephew and McClure to

her apartment after the robbery, that defendant complained about the inability to

open the cash register, and that he took a portion of the money. Newby's testimony

supports the inference that defendant drove McClure and Speed away from the

scene of the robberies with the requisite criminal intent . The jury obviously chose

to believe Newby's testimony over defendant's. This is the jury's prerogative. This

issue is, therefore, without merit.



                         B. Criminally Negligent Homicide



       Defendant also contends that the proof is insufficient to support his

conviction of criminally negligent homicide. That offense is defined as criminally

negligent conduct which results in death. Tenn.Code Ann. § 39-13-212(a). The

statutory definition of criminally negligent conduct

                refers to a person who acts with criminal negligence
                with respect to the circumstances surrounding that
                person's conduct or the result of that conduct when the
                person ought to be aware of a substantial and
                unjustifiable risk that the circumstances exist or the
                result will occur. The risk must be of such a nature and
                degree that the failure to perceive it constitutes a gross
                deviation from the standard of care that an ordinary
                person would exercise under all the circumstances as
                viewed from the accused person's standpoint.

Tenn.Code Ann. §§ 39-11-106(a)(4), 302(d). In construing this definition, our Court

found that it

                relates to (1) the defendant's conduct, (2) a substantial
                and unjustifiable risk existing at the time of the conduct
                or resulting from the conduct, (3) the defendant's failure


       2
        The jury charge contained an instruction on criminal responsibility for the
conduct of another.

                                            6
                at the time of the conduct to perceive the risk, and (4)
                that failure being a gross deviation from the standard of
                care of an ordinary person under the circumstances.

State v. Butler, 880 S.W.2d 395, 397 (Tenn. Crim. App. 1994). We further noted

that intentional, knowing or reckless acts will also suffice to establish criminal

negligence. Id. at 397-98; see also Tenn.Code Ann. § 39-11-301(a)(2).



         The evidence, viewed in a light most favorable to the state, proved that

defendant knew McClure had a gun and that he intended to shoot at least one

person in the store. The risk that someone would be killed was substantial and

unjustifiable. Defendant's conduct in participating in the robbery and ignoring that

risk was a gross deviation from an ordinary person's standard of care. The

evidence is, therefore, sufficient to support the jury's verdict. This issue is without

merit.



                             INCONSISTENT VERDICTS



         Finally, defendant complains that the jury's verdict of guilt on the especially

aggravated robberies is inconsistent with his acquittal of attempted first degree

murder and his conviction of criminally negligent homicide instead of murder. He

argues that, if the jury found he did not possess the intent necessary to commit

murder, he must not have possessed the intent necessary to commit robbery. We

are not persuaded.



         Our Supreme Court has held that consistency in verdicts is unnecessary.

Wiggins v. State, 498 S.W.2d 92, 93-4 (Tenn. 1973) (relying on Dunn v. United

States, 283 U.S. 390 (1932)). Reasoning that "[a]n acquittal on one [charge] cannot

be considered res judicata to another [charge] even though both [charges] stem

from the same criminal transaction," Wiggins, 498 S.W.2d at 94, the Court refused

to overturn a seemingly inconsistent verdict where the evidence established the

defendant's guilt of the convicted offense.



                                            7
       The evidence in this case establishes defendant's guilt of criminally negligent

homicide and two especially aggravated robberies.         Any inconsistencies in the

jury's verdicts are, therefore, irrelevant. This issue is without merit.




       The judgment below is AFFIRMED.




                                           ____________________________
                                           JOE G. RILEY, JUDGE




CONCUR:


____________________________
JOHN H. PEAY, JUDGE



____________________________
THOMAS T. WOODALL, JUDGE




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