         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                  September 19, 2006 Session

   STATE OF TENNESSEE v. DONALD D. MATHIS a.k.a. MICHAEL D.
              MATHIS a.k.a. MICHAEL LEE DIXON

                 Direct Appeal from the Criminal Court for Davidson County
                         No. 2003-B-1222   Cheryl Blackburn, Judge



                      No. M2005-02259-CCA-R3-CD - Filed June 28, 2007


The defendant, Donald D. Mathis a.k.a. Michael D. Mathis a.k.a. Michael Lee Dixon, was convicted
of robbery (Class C felony) by a Davidson County jury and was subsequently sentenced to serve
fifteen years in the Tennessee Department of Correction as a Range III, persistent offender. On
appeal he contends that: (1) there was insufficient evidence to support his conviction; (2) the trial
court erred in not suppressing his confession to police; (3) the trial court erred in allowing
introduction of a surveillance photo; (4) the trial court erred in denying a requested jury charge; (5)
the trial court erred in approving the jury verdict as the thirteenth juror; and (6) the trial court erred
in sentencing the defendant to the maximum within his range. After careful review, we find no error
and affirm the judgment of the trial court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which THOMAS T. WOODALL and
JAMES CURWOOD WITT , JR., JJ., joined.

Mike J. Urquhart, Nashville, Tennessee, for the appellant, Donald D. Mathis a.k.a. Michael D.
Mathis a.k.a. Michael Lee Dixon.

Robert E. Cooper, Jr., Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney
General; Victor S. (Torry) Johnson, III, District Attorney General; and Angelita Dalton, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                               OPINION

       The defendant was convicted of robbery after he entered a Mapco convenience store,
followed a clerk behind the counter, grabbed the clerk by the collar, took cigarettes, and exited the
store. He was subsequently arrested and provided a confession to police.
I. Motion for Judgment of Acquittal/Sufficiency

        The defendant contends that the court erred in denying his motion for acquittal because he
was not allowed to confront his accusers. He argues that the evidence was insufficient to convict
him of robbery. The State argues that sufficient evidence was presented at trial for any rational juror
to find beyond a reasonable doubt that the State proved each element of robbery. The State also
argues that the defendant has not supported his contention that he was not allowed to confront his
accusers and, therefore, this issue is waived.

       Initially, we note that the State is correct in its assertion that the defendant has failed to
support his claim that his right to confront his accusers was violated. The defendant has provided
nothing in his brief to support his claim other than a statement that the victim did not appear as a
witness. This issue is waived as the defendant has failed to cite authority to support his argument.
Tenn. Ct. Crim. App. R. 10(b); State v. Schaller, 975 S.W.2d 313, 318 (Tenn. Crim. App. 1997).

        Next, we address the defendant’s claim that the evidence was insufficient to convict the
defendant of robbery. When an accused challenges the sufficiency of the evidence, this court must
review the record to determine if the evidence adduced during the trial was sufficient “to support the
finding by the trier of fact of guilt beyond a reasonable doubt.” Tenn. R. App. P 13(e). This rule is
applicable to findings of guilt predicated upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence. State v. Brewer, 932 S.W.2d 1, 18 (Tenn. Crim.
App. 1996).

       In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the
evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this court substitute its
inferences for those drawn by the trier of fact from circumstantial evidence. Liakas v. State, 286
S.W.2d 856, 859 (1956). To the contrary, this court is required to afford the State the strongest
legitimate view of the evidence contained in the record, as well as all reasonable and legitimate
inferences drawn from the evidence. State v. Elkins, 102 S.W.3d 578, 581 (Tenn. 2003).

        The trier of fact, not this court, resolves 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.
Id. In State v. Grace, the Tennessee Supreme Court stated that “[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.” 493 S.W.2d 474, 476 (Tenn. 1973).

        Because a verdict of guilt removes the 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); Grace, 493 S.W.2d at 476.

       After careful review, we conclude that the evidence presented at trial was sufficient to sustain
the defendant’s robbery conviction. The defendant confessed that he went behind the counter,


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grabbed the clerk by the collar, took cigarettes, and exited the store. The jury was shown a
photograph of the defendant, taken from the store surveillance video, with his hands on the store
clerk’s neck. The jury was also able to review the video containing the defendant’s confession. The
defendant contends that no evidence was presented to corroborate his confession. We disagree. The
photograph corroborates the defendant’s confession. Corroboration of the corpus delicti may be
achieved with circumstantial evidence alone. State v. Jones, 15 S.W.3d 880, 891 (Tenn. Crim. App.
1999). The State needs only “slight evidence . . . to corroborate a confession and sustain a
conviction.” State v. Smith, 24 S.W.3d 274, 281 (Tenn. 2000) (quoting State v. Driver, 634 S.W.2d
601, 606 (Tenn. Crim. App. 1981)).

           The evidence was sufficient to support the finding of guilt as to the indicted offense of
robbery.

II. Motion to Suppress

        Next, the defendant contends that the trial court erred in denying his motion to suppress the
statement he provided to the police after invoking his right to counsel. He argues that the court
should have suppressed the statement because it violated his constitutional right to counsel. The
State contends that the defendant waived his right to counsel by initiating further communication
with the police after his conversation with his co-defendant.

       The Fifth Amendment right to counsel is triggered whenever a suspect requests that counsel
be present during custodial interrogation. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,
(1966); State v. Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994).

       When a defendant clearly requests an attorney during custodial interrogation, all questioning
must cease until an attorney is present unless the defendant subsequently initiates further
conversation with the authorities. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1884-
85 (1981). This same test is utilized under both the Fifth and Sixth Amendment right to counsel.
Michigan v. Jackson, 475 U.S. 625, 636, 106 S. Ct. 1404, 1411 (1986). When an accused has
invoked his right to counsel, a valid waiver cannot be established simply by showing only that the
accused responded to further police-initiated custodial interrogation even if advised of his rights.
Edwards, 451 U.S. at 484.

         The findings of fact made by the trial court at the hearing on a motion to suppress are binding
upon this court unless the evidence contained in the record preponderates against them. State v.
Ross, 49 S.W.3d 833, 839 (Tenn. 2001). The trial court, as the trier of fact, is able to assess the
credibility of the witnesses, determine the weight and value to be afforded the evidence, and resolve
any conflicts in the evidence. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The prevailing party
is entitled to the strongest legitimate view of evidence and all reasonable inferences drawn from that
evidence. State v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001). However, this court is not bound by
the trial court’s conclusions of law. State v. Randolph, 74 S.W.3d 330, 333 (Tenn. 2002). The
application of the law to the facts found by the trial court are questions of law that this court reviews


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de novo. State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000). The defendant has the burden of
establishing that the evidence contained in the record preponderates against the findings of fact made
by the trial court. Braziel v. State, 529 S.W.2d 501, 506 (Tenn. Crim. App. 1975).

        In the series of events presented on appeal for our review, the defendant and another accused
were taken into custody and questioned by a detective regarding a robbery. The defendant was
handcuffed and seated in the robbery room of the Nashville-Metropolitan Police Department while
the other accused was held in an interview room. During the questioning, the defendant invoked his
right to have counsel present during the interrogation. The detective stopped questioning the
defendant and went to the interview room to interview the other accused. The defendant was left
handcuffed in the robbery room during the time the detective was interviewing the other suspect.
After taking the statement of the other suspect, the detective returned to the defendant and informed
him, “[s]he’s told me everything about what you all done.” The defendant then asked the detective
to allow him to speak to the other suspect. The detective let them speak in a hallway where he could
overhear their conversation. After speaking with the other suspect, the defendant told the detective,
“Well, she’s told you. I might as well go ahead and talk to you, too.” The detective took the
defendant to an interview room, advised him of his rights, and provided him a waiver of rights form.
The defendant signed the waiver of rights form and provided a confession to the robbery. The
defendant filed a motion to suppress his confession, alleging that it was improper based on his
request for counsel. He contends on appeal that, because he never left the robbery office, he was
continually under the control of the detective and that his statement cannot be considered voluntary.

        The defendant relies on State v. Koffman, 207 S.W.3d 309, 319 (Tenn. Crim. App. 2006),
a recent decision by a panel of this court to support his position that a statement is involuntary and
therefore inadmissible if there is no break in custody from the time that a defendant requests counsel
until the time the statements are made. However, the facts of this case are distinguishable from those
in the Koffman decision. The chief difference in these two cases is that the police continued to
question defendant Koffman when he requested counsel. In the case sub judice, there was a break
in questioning. After the investigating officers terminate an interrogation following a request for
counsel, an accused may later approach the authorities and express a willingness to reopen
discussions. Oregon v. Bradshaw, 462 U.S. 1039, 103 S. Ct. 2830, 2835 (1983). Here, when the
defendant requested counsel, the detective stopped the questioning. The conversation between the
defendant and the detective regarding his involvement in the crime did not resume until the
defendant told the detective he was ready to make a statement. The record does not preponderate
against the trial court’s finding that the defendant initiated conversation with the detective after he
had invoked his right to counsel. The trial court properly denied the defendant’s motion to suppress.

III. Admissibility of Photograph

        Next, the defendant contends that the trial court erred in allowing a still photograph taken
from the security tape of the service station. Initially, the State argues that the defendant failed to
take care that the bench conference regarding his objection to the photograph was transcribed. The
State contends that the failure to have the bench conference transcribed for the record has resulted


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in an inadequate record for this court’s review. Next, the State submits that the defendant did not
object on the basis of the best evidence rule until this appeal and that this argument should therefore
be waived. The State argues that the trial court properly admitted the photograph into evidence.

         A trial court’s ruling on the admissibility of photographs into evidence at trial will not be
overturned on appeal except upon a clear showing of abuse of discretion. State v. Banks, 564
S.W.2d 947, 949 (Tenn. 1978). To be admissible, photographs must be relevant to some issue at
trial and their probative value must outweigh their own prejudicial effect, if any. State v. Gann, 733
S.W.2d 113, 115 (Tenn. Crim. App. 1987).

        The defendant argues that his objection to admission of the photograph was improperly
overruled. However, he has failed to include a transcript of the bench conference because it was held
“off-the-record,” according to the trial transcript. It is well established that it is the duty of the
accused to provide a record which conveys a fair, accurate, and complete account of what transpired
with regard to the issues which form the basis of the appeal. Tenn. R. App. P. 24(b); see State v.
Taylor, 992 S.W.2d 941 (Tenn. 1999). The State argues, and we agree, that here we not only lack
a complete account of what happened, we lack any account. In the absence of an adequate record
on appeal, we must presume the trial court’s rulings were supported by sufficient evidence.
Vermilye v. State, 584 S.W.2d 226, 230 (Tenn. Crim. App. 1979). Therefore, we are unable to
review the actions of the trial court and must affirm their admission of the photograph.

        The defendant’s argument that the admission of the photograph was a violation of the best
evidence rule is raised for the first time on appeal. In his brief, he states that he objected at trial
because there was no chain of evidence to admit the photograph. The defendant did not argue the
best evidence rule at trial. By failing to make a contemporaneous objection to testimony, a defendant
waives appellate consideration of the issue. State v. Adler, 71 S.W.3d 299, 302 (Tenn. Crim. App.
2001); State v. Thompson, 36 S.W.3d 102, 108 (Tenn. Crim. App. 2000). This argument is waived
due to failure to object at trial.

IV. Jury Instructions

       The defendant argues that the trial court erred in failing to properly instruct the jury on theft
of merchandise and alleges that he requested such an instruction. The State argues that the trial court
properly charged the jury and contends that the record is void of any showing that the defendant
requested such an instruction.

         Tennessee Code Annotated section 40-18-110(c) (2006) provides that a defendant’s failure
to request an instruction of a lesser included offense in writing constitutes a waiver of the instruction
for the lesser included offense. Absent a written request, the failure of the trial judge to instruct the
jury on any lesser included offense may not be presented as a ground for relief either in a motion for
new trial or on appeal. Id. The defendant has provided no proof that he requested a jury instruction
on theft of merchandise. Therefore, he may not now gain relief based on the failure to instruct.



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V. Trial Court Role as Thirteenth Juror

         The defendant argues that the trial court erred in failing to dismiss the charge in its role as
thirteenth juror, specifically alleging that the trial court failed to weigh the evidence. The State
argues that the trial court sufficiently fulfilled its role and contends that this issue is not subject to
review by this court. An appellate court may grant a new trial only where the trial court has failed
to act as the thirteenth juror, as it is the only practical remedy. State v. Moats, 906 S.W.2d 431, 435
(Tenn. 1995). The accuracy of the trial court’s determination as a “thirteenth juror” is not subject
to appellate review. Id. The defendant argues that the trial court demonstrated a failure to weigh the
evidence by failing to state a basis for saying it had no disagreement with the verdict. However, the
trial court’s statement that it had no disagreement is enough to demonstrate that it performed its duty
as thirteenth juror. See State v. Carter, 896 S.W.2d 119, 122 (Tenn. 1995). This issue is without
merit.

VI. Sentencing

       The defendant argues that the trial court erred in sentencing him to the maximum in the
sentencing range. The State argues that the trial court properly sentenced the defendant.

        A defendant who challenges his or her sentence has the burden of proving the sentence
imposed by the trial court is improper. T.C.A. § 40-35-401, Sentencing Commission Comments;
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). When a defendant appeals the length, range, or
manner of service of his or her sentence, it is this court’s duty to conduct a de novo review of the
record with a presumption that the trial court’s determinations are correct. T.C.A. § 40-35-401(d).
The presumption of correctness is conditioned upon the affirmative showing in the record that the
trial court considered the sentencing principles and all relevant facts and circumstances. State v.
Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999).

        The crux of the defendant’s argument is that the enhancement and mitigating factors before
the court were improperly applied. Specifically, he contends that the mitigating factors he submitted
were not considered by the court. The weight given to each enhancement or mitigating factor is
within the discretion of the trial court, assuming the trial court has complied with the purposes and
principles of the sentencing act and its findings are supported by the record. State v. Madden, 99
S.W.3d 127, 138 (Tenn. Crim. App. 2002). The statutes prescribe no particular weight for an
enhancement or mitigating factor. State v. Gosnell, 62 S.W.3d 740, 750 (Tenn. Crim. App. 2001).
“[A] defendant’s ‘sentence is not determined by the mathematical process of adding the sum total
of enhancing factors present then subtracting from this figure the mitigating factors present for a net
number of years.’” State v. Alder, 71 S.W.3d 299, 306 (Tenn. Crim. App. 2001)(quoting State v.
Boggs, 932 S.W.2d 467, 475 (Tenn. Crim. App. 1996)).

        The transcript of the sentencing hearing reflects that the trial court specifically addressed the
mitigating factors submitted by the defendant. The trial court has complied with the purposes and
principles of the sentencing act, and we conclude that no error exists to alter the judgment of the trial


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court. At the time of this trial, the defendant had ten prior felony convictions and twenty-six prior
misdemeanor convictions. The trial court gave great weight to the enhancement factor regarding the
defendant’s prior record. The trial court was justified in sentencing the defendant to fifteen years
in the Department of Correction; therefore, we affirm.

                                            Conclusion

      Based on the foregoing and the record as a whole, we find no error exists and affirm the
judgment of the trial court.



                                                      ___________________________________
                                                      JOHN EVERETT WILLIAMS, JUDGE




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