         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs June 5, 2007

                    STATE OF TENNESSEE v. ELDRIDGE HILL

                  Direct Appeal from the Criminal Court for Shelby County
                       No. 04-06183    Carolyn Wade Blackett, Judge



                     No. W2006-01942-CCA-R3-CD - Filed June 26, 2007


The defendant, Eldridge Hill, was convicted by a Shelby County jury of especially aggravated
robbery, a Class A felony, and sentenced by the trial court as a violent offender to sixteen years at
100% in the Department of Correction. The sole issue he raises on appeal is whether the evidence
was sufficient to sustain his conviction. Specifically, he argues that the State failed to prove beyond
a reasonable doubt that his robbery victim suffered a serious bodily injury. 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

ALAN E. GLENN , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and J.C.
MCLIN , JJ., joined.

C. Anne Tipton (on appeal) and Dewun R. Settle (at trial), Memphis, Tennessee, for the appellant,
Eldridge Hill.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Karen Cook and Lora Fowler, Assistant District
Attorneys General, for the appellee, State of Tennessee.


                                             OPINION

                                               FACTS

       On September 2, 2004, the Shelby County Grand Jury returned an indictment charging the
defendant with the especially aggravated robbery of Marcus Brown and the aggravated robberies of
Mark Taylor and Felicitas Spurlock-Fitzpatrick.1 At the conclusion of his jury trial, he was
convicted of the especially aggravated robbery count of the indictment and acquitted of the two
aggravated robbery counts. Because the defendant confines his argument on appeal to the
sufficiency of the evidence as it relates to the severity of the victim’s injury, we will only briefly
summarize the proof the State presented of the crime itself.

        On the afternoon of April 28, 2004, Brown, Taylor, and Fitzpatrick were watching television
in the living room of Fitzpatrick’s Memphis home when the defendant, who was known to all of
them as “Big Red,” pulled up to the house in a car driven by another man. The defendant came to
the porch and asked Fitzpatrick if “Bumblebee,” or Brown, was inside. She replied yes and admitted
the defendant into the house. The defendant closed the door behind him, pulled out a gun, and
ordered everyone to stay seated on the couch. He then demanded that they tell him where the money
and ten pounds of marijuana were located. The three disavowed any knowledge of marijuana, and
the defendant struck Taylor in the face with his hand and Brown in the head with his gun. He then
picked up a pillow from the couch, held it between the barrel of his gun and Brown’s head, and
threatened to shoot Brown if the three did not reveal the location of the marijuana.

         The defendant took $860 in cash from Brown’s pocket and cell phones and car keys from
Taylor and Fitzpatrick. He then went to the front door of the home and beckoned for the driver of
his vehicle, whom the three victims knew only as “Big Daddy,” to come inside. Big Daddy came
in, and the defendant instructed him to get his brother and to watch the door. The defendant’s
brother, Carl Hill, entered the house, and the defendant sent him out to get another gun. At some
point, the defendant also gave the victims’ car keys to either Big Daddy or Carl Hill with instructions
to search the victims’ vehicles. When Big Daddy and Carl Hill were gone, the defendant pulled
Fitzpatrick into the kitchen of the residence. Seizing his chance, Brown fled out the door and down
a hill, followed by the defendant who shouted, “Shoot him” as he ran out the door after Brown.

        Hearing gunshots behind him, Brown turned around, saw the defendant standing on the hill
shooting at him, turned back around to continue his flight, was struck in the back by a bullet, fell to
the ground, got up, ran to a neighbor’s house, and collapsed on the front porch. From there, he was
taken by ambulance to the hospital, where he underwent surgery. Brown testified that the bullet hit
his kidney and stomach and caused him pain and breathing problems. In addition, it “messed [his]
bowels up,” causing him to “have trouble using the restroom.” Brown stated that he continued to
experience problems with his bowels and had to take “stool pills” to help his elimination. At the
request of the State, he raised his shirt to show the jury his surgical scar. He stated that the bullet
was unable to be removed and remained in his body. At a later point in the trial, two photographs
of the victim’s torso, which the parties stipulated showed the surgical scar, were admitted into
evidence.




         1
          This victim is named as “Felicitas Spurlock-Fitzpatrick” in the indictment but is referred to as “Felicitas
Fitzpatrick” throughout the trial transcript. For simplicity’s sake, we will likewise refer to her as Fitzpatrick.

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                                               ANALYSIS

        The sole issue the defendant raises on appeal is whether the evidence was sufficient to sustain
his conviction for especially aggravated robbery. Specifically, he argues that Brown’s lay testimony
about his injury was not sufficient to establish that he suffered a serious bodily injury as defined by
the statute. The State argues that the evidence was sufficient for the jury to find beyond a reasonable
doubt that Brown’s gunshot wound involved a substantial risk of death, protracted or obvious
disfigurement, and a protracted loss or substantial impairment of a function of a bodily organ, and,
thus, constituted a serious bodily injury.

         When the sufficiency of the convicting evidence is challenged on appeal, the relevant
question for the reviewing court 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, 99 S. Ct. 2781, 2789 (1979);
see also Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or
jury shall be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt
beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v.
Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All questions involving the credibility
of witnesses, the weight and value to be given the evidence, and all factual issues are resolved by the
trier of fact. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict
by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and
resolves all conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn.
1973). A jury conviction removes the presumption of innocence with which a defendant is initially
cloaked and replaces it with one of guilt, so that on appeal, a convicted defendant has the burden of
demonstrating that the evidence is insufficient. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.
1982).

        Especially aggravated robbery is “robbery as defined in § 39-13-401: (1) [a]ccomplished
with a deadly weapon; and (2) [w]here the victim suffers serious bodily injury.” Tenn. Code Ann.
§ 39-13-403(a) (2003). “Serious bodily injury” is defined in the code as a bodily injury that
involves:

        (A) A substantial risk of death;

        (B) Protracted unconsciousness;

        (C) Extreme physical pain;

        (D) Protracted or obvious disfigurement; or

        (E) Protracted loss or substantial impairment of a function of a bodily member, organ
        or mental faculty.



                                                    -3-
Tenn. Code Ann. § 39-11-106(a)(34) (2003).

        The defendant argues that Brown’s lay testimony was insufficient to establish beyond a
reasonable doubt that his injury involved a substantial risk of death, extreme physical pain, or
protracted loss or substantial impairment of a function of a bodily organ. The defendant further
contends that Brown’s surgical scar did not involve the type of protracted disfigurement
contemplated by the statute. We respectfully disagree.

        The distinction between bodily injury and serious bodily injury is generally a question of fact
for the jury to determine. See State v. Barnes, 954 S.W.2d 760, 765-66 (Tenn. Crim. App. 1997).
Brown testified that the bullet struck his kidney and stomach, causing him pain, difficulty breathing,
and problems with his bowels. He said that the injury required surgery and a subsequent two-week
hospitalization. This court has previously noted that “a gunshot wound to the upper torso of the
body, almost without fail, constitutes a substantial risk of death given the number of vital organs in
that region of the body.” State v. Clay B. Sullivan, No. M2004-03068-CCA-R3-CD, 2006 WL
644021, at *8 (Tenn. Crim. App. Mar. 10, 2006). Thus, we conclude that the evidence was sufficient
for the jury to find that Brown’s gunshot wound to the kidney and stomach involved a substantial
risk of death.

        We further conclude that the evidence was also sufficient for the jury to find that the injury
involved protracted loss or substantial impairment of a function of a bodily organ and a protracted
or obvious disfigurement. Brown testified that he continued to experience ongoing problems with
his bowels and difficulty going to the bathroom, for which he has to take medication. In addition,
the photograph of his torso reveals that he has a quite pronounced, thick scar, which extends down
the middle of his chest to well below his navel. This is a substantially larger and more extensive scar
than the scar caused by the victim’s bite wound in Barnes, which the defendant cites in support of
his proposition that Brown’s scar was not sufficiently egregious to constitute a serious bodily injury.
Moreover, in that case the only evidence introduced of the victim’s scar was the victim’s own
testimony. Barnes, 954 S.W.2d at 765. Here, by contrast, the jury was able to see the victim’s
surgical scar and judge for itself whether it constituted a protracted or obvious disfigurement.

                                          CONCLUSION

        Based on our review, we conclude that the evidence was sufficient for a rational jury to find
the defendant guilty of especially aggravated robbery beyond a reasonable doubt. Accordingly, we
affirm the judgment of the trial court.

                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




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