        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                   Assigned on Briefs May 4, 2010

                STATE OF TENNESSEE v. LANCE BURTON
                  Appeal from the Criminal Court for Shelby County
                       No. 08-01339 W. Mark Ward, Judge


                No. W2009-01875-CCA-R3-CD - Filed August 17, 2010


The Defendant, Lance Burton, was convicted by a Shelby County Criminal Court jury of one
count of aggravated robbery, a Class B felony. The trial court sentenced the Defendant as
a mitigated offender to eight years in the custody of the Tennessee Department of Correction.
In this appeal as of right, he contends that the evidence is insufficient to support his
conviction and that the State committed prosecutorial misconduct during closing argument.
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 is Affirmed.

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which A LAN E. G LENN and
J.C. M CL IN, JJ., joined.

Neil Umsted (on appeal); and Kevin T. Krause (at trial), Memphis, Tennessee, attorneys for
appellant, Lance Burton.

Robert E. Cooper, Attorney General and Reporter; David H. Findley, Senior Counsel;
William L. Gibbons, District Attorney General; W. Chris Scruggs and Kate Edmands,
Assistant District Attorneys General, attorneys for appellee, State of Tennessee.

                                         OPINION

        Shala Latham testified that on October 9, 2007 she was working third shift at a Circle
K convenience store in Memphis, Tennessee, where she had worked for over five years prior
to this incident. She recalled that at approximately 3:00 a.m., “[a] young man” entered the
store. When she greeted him, he said “give me all your money.” She said that “he had a
syringe, a needle . . . [and] [h]e was bleeding. He scared me half to death.” She gave him
all the paper money, about twenty-five dollars, from her register, and then the man left. As
soon as he left, Ms. Latham telephoned the police and her store manager.
        Ms. Latham recalled that the man held the needle in his right hand and that his left
hand “was all bloody.” She described her fear of the needle and said that “I didn’t want him
to stick me. I didn’t want to get no diseases.” On cross-examination, Ms. Latham elaborated
regarding the man’s use of the needle; she said that he pulled the top from the syringe as he
said “I’m sorry to do this to you, but give me all your money.” She also testified that the man
appeared to be on drugs because he was “shaky and sweaty.” She acknowledged that the
man did not jab at her or swipe her with the needle, nor did he verbally threaten her during
the incident. The victim made a tentative identification of the Defendant from a
photographic lineup several days after the offense. During her testimony, she positively
identified the Defendant as her assailant.

       A surveillance camera at the store recorded the incident; the digital video recording
was played for the jury. The recording shows a man approaching the counter and the victim
giving him cash from the register. The man’s right hand is hidden by the camera angle,
obscuring any view of the needle. The victim testified that due to the camera angle, the
needle could not be seen on the recording.

        Memphis Police Department Sergeant Kevin Lundy testified that he was working with
the Safe Streets Task Force in 2007 and investigated the robbery. Through the use of the
digital recording and Crime Stoppers’ tips, the Defendant was identified as a suspect in the
robbery. When Sgt. Lundy arrested the Defendant on October 12 at the Defendant’s sister’s
apartment, the Defendant appeared “disheveled” and had a bandaged cut on his right thumb.
After waiving his Miranda rights, the Defendant admitted to committing the robbery by using
a “capped syringe” and said that he received “approximately thirty dollars.” He explained
that he “was high at the time and probably drinking.” He said that he “was going up to
Memphis to get some more drugs and just made a stupid decision.” The Defendant then said,
“I am sorry and I didn’t mean to hurt anybody.”

       Based upon this evidence, the jury convicted the Defendant of aggravated robbery.
At sentencing, the trial court imposed a sentence of eight years to be served as a mitigated
offender. On appeal, the Defendant contends that the evidence is insufficient to support his
conviction because a needle is not a deadly weapon. He also argues that the State committed
prosecutorial misconduct during closing argument by its derogatory remarks about defense
counsel and asks this court to review this allegation for plain error. The State contends that
the evidence is sufficient to support a conviction for aggravated robbery and that the
prosecutorial misconduct allegation does not warrant plain error review. Following our
review, we agree with the State and affirm the judgment of the trial court.

                                         ANALYSIS



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                                 Sufficiency of the Evidence

        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). The
appellate 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 verdict of guilt 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.” Id.; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). “This [standard] applies
to findings of guilt based upon direct evidence, circumstantial evidence, or a combination of
direct and circumstantial evidence.” State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn.
Crim. App. 1999).

        Aggravated robbery, as relevant to this case, is defined as “the intentional or knowing
theft of property from the person of another by violence or putting the person in fear
[a]ccomplished with a deadly weapon or by display of any article used or fashioned to lead
the victim to reasonably believe it to be a deadly weapon.” Tenn. Code Ann. §§ 39-13-401
and -402(a)(1). Included in the statutory definition for “deadly weapon” is “[a]nything that
in the manner of its use or intended use is capable of causing death or serious bodily injury.”
Tenn. Code Ann. § 39-11-106(a)(5)(B). “Serious bodily injury” is defined as “bodily injury
that involves 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).

        In Morgan v. State, 415 S.W.2d 879 (Tenn. 1967), our supreme court explained that
there is a distinction between items that are per se deadly weapons, such as a gun, and those
items that in the manner of their use may qualify as deadly weapons. The court explained
that:

       Weapons may be placed, generally, in two categories, namely: deadly per se,
       such as fire arms; and deadly by reason of the manner in which they are used.
       It is generally recognized by the majority of States that, “a dangerous or deadly
       weapon is any weapon or instrument which, from the manner in which it is

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       used or attempted to be used, is likely to produce death or cause great bodily
       injury.”

Morgan, 415 S.W.2d at 882 (citing 77 C.J.S. Robbery § 25, page 465; People v. Crowl, 82
P.2d 507 (Cal. 1938); Jackson v. State, 215 S.W.2d 148 (Ark. 1948); Williams v. State, 39
So.2d 37 (Ala. 1948)). The court then held that “a car tool, knife or other hard object
wrapped in a sock and used as a bludgeon or club to assault a person in the perpetration of
a robbery” was a deadly weapon. Morgan, 415 S.W.2d at 882.

       Following this analysis, this court had held several items, though not per se deadly
weapons, to be deadly weapons due to the manner of their use. See, e.g., State v. Madden,
99 S.W.3d 127 (Tenn. Crim. App. 2002) (pointed-toe cowboy boots were deadly weapons
in especially aggravated robbery case); State v. Eaves, 959 S.W.2d 601 (Tenn. Crim. App.
1997) (plastic pen was a deadly weapon in aggravated assault case); State v. Tate, 912
S.W.2d 785 (Tenn. Crim. App. 1995) (automobile was a deadly weapon in aggravated assault
case).

        In State v. McGouey, 229 S.W.3d 668 (Tenn. 2007), our supreme court held that an
unloaded pellet gun was not a deadly weapon in an aggravated assault case because it was
not capable of causing death or serious bodily injury. The Defendant argues that McGouey
should control our resolution of the similar issue in this case. However, as correctly noted
by the State, the aggravated robbery statute differs from the aggravated assault statute in that
it provides that aggravated robbery may be committed “by display of any article used or
fashioned to lead the victim to reasonably believe it to be a deadly weapon.” Tenn. Code
Ann. § 39-13-402(a)(1). Thus, this court has affirmed a conviction for aggravated robbery
when a Defendant used a rag on his hand “in an effort to lead [the victim] to believe he held
a weapon.” State v. Davenport, 973 S.W.2d 283, 286 (Tenn. Crim. App. 1998); see also
State v. Michael V. Morris, No. M2006-02738-CCA-R3-CD, 2008 WL 544567 (Tenn. Crim.
App. Feb. 25, 2008), perm. app. denied (Tenn. Aug. 25, 2008) (holding that the defendant’s
hand in pocket caused the victim to reasonably fear that the defendant had a gun and that this
was sufficient to sustain aggravated robbery conviction).

       The evidence in this case shows that the bloodied and disheveled Defendant
approached the register, uncapped the syringe, and demanded money from the store clerk.
The victim testified that she was not sure if anything was in the syringe but complied with
the Defendant’s demands because she said, “I didn’t want him to stick me. I didn’t want to
get no diseases.” It is clear that the Defendant’s use of the syringe placed the victim in fear,
enabling him to accomplish the theft. Furthermore, the victim reasonably believed that the
syringe could contain a substance capable of causing death or serious bodily injury.
Therefore, the use of the syringe in this manner qualified as a deadly weapon. Accordingly,

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we conclude that the evidence is sufficient to support the Defendant’s conviction for
aggravated robbery.

                                   Prosecutorial Misconduct

       The Defendant contends that the State committed prosecutorial misconduct during its
closing argument. Conceding that he failed to object contemporaneously during closing
argument, he asks this court to review the issue for plain error. Pursuant to Rule 36(a) of the
Tennessee Rules of Appellate Procedure, “[n]othing in this rule shall be construed as
requiring relief be granted to a party responsible for an error or who failed to take whatever
action was reasonably available to prevent or nullify the harmful effect of an error.”
Accordingly, the Defendant is limited to “plain error” review pursuant to Rule 36(b) of the
Tennessee Rules of Appellate Procedure. The Defendant must establish the following five
factors before this court will consider an issue for plain error:

       (a)   The record . . . clearly establish[es] what occurred in the trial court;
       (b)   a clear and unequivocal rule of law [has] been breached;
       (c)   a substantial right of the accused [has] been adversely affected;
       (d)   the accused did not waive the issue for tactical reasons; and
       (e)   consideration of the error is “necessary to do substantial justice.”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d
626, 641-42 (Tenn. Crim. App. 1994)). On appeal, the defendant has the burden of
establishing that these five factors are met. State v. Gomez, 239 S.W.3d 733, 737 (Tenn.
2007) (“Gomez II”) (citing State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007)). The
appellate court need not consider all five factors if any single factor indicates that relief is
not warranted. Smith, 24 S.W.3d at 283.

        In determining whether a prosecutor’s statements violated a clear and unequivocal rule
of law, we first note that our supreme court has recognized that closing argument is a
valuable privilege for both the State and the defense and that counsel is afforded wide
latitude in presenting final argument to the jury. See State v. Cribbs, 967 S.W.2d 773, 783
(Tenn. 1998); State v. Cone, 665 S.W.2d 87, 94 (Tenn. 1984). However, a party’s closing
argument “must be temperate, predicated on evidence introduced during trial, relevant to the
issues being tried, and not otherwise improper under the facts or law.” State v.
Middlebrooks, 995 S.W.2d 550, 568 (Tenn. 1999). This court, citing to standards
promulgated by the American Bar Association,1 has identified “five general areas of

       1
        See American Bar Association, ABA Standards for Criminal Justice: Prosecution
Function and Defense Function §§ 3-5.8, 3-5.9 (3d ed. 1993).

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prosecutorial misconduct”: (1) intentionally misstating the evidence or misleading the jury
as to inferences it may draw; (2) expressing the prosecutor’s personal belief or opinion as to
the truth or falsity of any testimony or evidence or the guilt of the defendant; (3) using
arguments calculated to inflame the passions or prejudices of the jury; (4) using arguments
that would divert the jury from its duty to decide the case on the evidence, by injecting issues
broader than the guilt or innocence of the accused or by predicting the consequences of the
jury’s verdict; and (5) intentionally referring to or arguing facts outside the record unless the
facts are matters of public knowledge. State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App.
2003).

       During rebuttal argument, the prosecutor characterized defense counsel’s closing
argument that the needle was not a deadly weapon as “defense attorney tricks, defense
attorney strategy.” In response to defense counsel’s argument that the victim’s credibility
was questionable because she did not appear to be hysterical during the incident, the
prosecutor further argued that “it’s offensive that [defense counsel] suggests that because
she’s a woman she should be hysterical, falling out.”

        In our view, the prosecutor’s statements were in direct response to defense counsel’s
arguments concerning the credibility of the victim and the application of the law to the facts
of this case. The statements were not misleading, inflammatory, or otherwise improper. See
id. Thus, the Defendant has failed to show that a clear and unequivocal rule of law was
breached. Furthermore, we conclude that review of the issue is not necessary to do
substantial justice. Accordingly, this issue has no merit.

                                       CONCLUSION

        In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.




                                                    D. KELLY THOMAS, JR., JUDGE




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