        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs February 2, 2016


                STATE OF TENNESSEE v. JASPER CLAYTON

                 Appeal from the Criminal Court for Shelby County
                      No. 1302973    Paula L. Skahan, Judge




                No. W2015-00785-CCA-R3-CD - Filed May 18, 2016
                       _____________________________

The defendant, Jasper Clayton, was convicted of three counts of aggravated robbery, a
Class B felony, and two counts of attempted aggravated robbery, a Class C felony. On
appeal, he argues that the evidence is insufficient to sustain his convictions. Following
our review, we affirm the judgments of the trial court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which CAMILLE R.
MCMULLEN and TIMOTHY L. EASTER, JJ., joined.

Eric Mogy, Memphis, Tennessee, for the Appellant, Jasper Clayton.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Austin Scofield and
Shannon McKenna, Assistant District Attorneys General, for the Appellee, State of
Tennessee.


                                       OPINION

                      FACTS AND PROCEDURAL HISTORY

       This case arose after the defendant and his co-defendant, Anthony Wortham,
robbed the victims during the course of an attempted drug sale. The defendant and Mr.
Wortham were tried together, and only the defendant‟s convictions are the subject of this
appeal.
       On the morning of the robbery, Ryan Boykin, Aaron Boykin, Matthew Boykin,
Colt Dennison, and Christian Cook went to McLemore‟s Market in an attempt to
purchase marijuana. Mr. Ryan Boykin testified that he drove his car, a white 4-Runner,
to the market. Mr. Cook was sitting in the front seat, and Mr. Dennison, Mr. Aaron
Boykin, and Mr. Matthew Boykin were in the back seat. They saw Tony Young, whom
they knew as “Spike” and whom Mr. Matthew Boykin had befriended the previous
summer, and they asked if he knew where they could find marijuana. Mr. Young
responded affirmatively, and he got into Mr. Ryan Boykin‟s vehicle and directed the
victims to a nearby residence on Waverly Street. Each of the victims had slightly
different accounts of what transpired next.

        Mr. Ryan Boykin testified that Mr. Young made a phone call and then directed
Ryan to drive to a residence a short distance from the market. They arrived at a
residence, and Mr. Young was on the phone with a person later identified as the
defendant. Mr. Ryan Boykin saw the defendant walking down the street while Mr.
Young was on the phone, and the defendant approached Mr. Ryan Boykin‟s window.
Mr. Ryan Boykin testified that the defendant was wearing a “Ralph Lauren” vest that was
“a bluish, purplish color.” The defendant instructed Mr. Ryan Boykin to pull forward to
a different house. Mr. Ryan Boykin testified that he pulled up to “a blue house,” at which
point Mr. Young exited the vehicle.

       Mr. Young began walking down the street, and Mr. Ryan Boykin testified that Mr.
Young turned and looked at the victims as if “to warn [them] about something.” Mr.
Young continued walking, and the defendant approached Mr. Ryan Boykin‟s vehicle for
a second time and asked the victims what they wanted. The defendant went into the
house and returned about ten minutes later with the small amount of marijuana that the
victims had requested. Mr. Ryan Boykin testified that Mr. Cook was in the front
passenger‟s seat and that he rolled down the window to give the defendant money in
exchange for the marijuana. As the defendant handed Mr. Cook the marijuana, Mr. Ryan
Boykin saw “four other men come around the corner.” Mr. Ryan Boykin testified that all
four men were wearing masks and that the defendant was the only person without a mask.
The defendant grabbed the marijuana back from Mr. Cook, and the four masked men
approached the doors of Mr. Ryan Boykin‟s car.

       After the defendant took the marijuana from Mr. Cook, Mr. Ryan Boykin saw the
defendant pull out a gun, which he believed was a BB pistol. The defendant came to Mr.
Ryan Boykin‟s side of the car and placed the gun to his head, demanding that Mr. Ryan
Boykin give him “everything” he had. Mr. Ryan Boykin testified that someone reached
into the car and stole his phone from his lap, and the defendant told the victims to get out
of the car. Mr. Ryan Boykin saw one of the men hit Mr. Cook in the head with a gun,
and Mr. Ryan Boykin testified that the defendant struck him in the face with the barrel of
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his gun. Mr. Ryan Boykin exited the vehicle, and the defendant started patting down his
pockets. Mr. Ryan Boykin testified that the other four men then fled the scene. The
defendant said, “F**k y‟all, welcome to South Memphis,” and got into Mr. Ryan
Boykin‟s car and drove away.

       Mr. Ryan Boykin testified that Mr. Aaron Boykin was still in the car when the
defendant drove away. Mr. Aaron Boykin leaped out of the moving car, and the victims
began to chase the car. Mr. Ryan Boykin heard a gunshot, and police arrived a short time
later.

        Mr. Ryan Boykin testified that he was seventeen years old at the time of the
incident. In addition to his own phone, he testified that Mr. Cook‟s cell phone was also
stolen. Mr. Ryan Boykin also testified that $75.00 was taken from Mr. Matthew Boykin.
Mr. Ryan Boykin‟s car was recovered a few days after the robbery, and he testified that
his stereo system was missing from the car, along with several other items. He estimated
that the total value of his vehicle and the missing items was around $7,500. The day after
the robbery, he went to the police station to look at photographic lineups. He identified a
photograph of the defendant, writing “I‟m sure he‟s the guy who had the fake BB pistol
and jacked my car.” Mr. Ryan Boykin also identified the defendant in the courtroom, and
he testified that the defendant looked very different at trial than he did at the time of the
robbery. He identified the defendant in the courtroom as having an “[A]fro” and glasses,
and he testified that the defendant did not have an Afro at the time he committed the
robbery. In the photograph that Mr. Ryan Boykin selected, the defendant also did not
have an Afro or glasses.

       Mr. Dennison testified that he was sixteen years old at the time of the robbery. He
was sitting in the backseat of Mr. Ryan Boykin‟s car behind the driver‟s seat when they
arrived at McLemore Market. He said that Mr. Young got into the vehicle and made a
phone call as they drove away from the market. Mr. Dennison stated that they drove to a
residence that was “probably a mile” away from the market. When they arrived, Mr.
Young was still on the phone. Once the call ended, Mr. Young told the victims that the
other participant in the phone call, the defendant, would “take care” of them, and he
exited the vehicle. Mr. Dennison testified that the defendant then approached the car and
asked the victims what they wanted. Mr. Dennison said that the defendant was wearing
“a light blue . . . Polo vest.” The victims requested to purchase a small amount of
marijuana, and the defendant returned to a house. The defendant returned to the car a
second time, and he approached the front passenger‟s window and again asked Mr. Cook
what the victims wanted. After confirming that they wanted “$20.00 worth . . . of Kush,”
the defendant returned to the house.


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        Mr. Dennison testified that the robbery occurred when the defendant returned to
the vehicle for a third time. Mr. Dennison saw Mr. Cook exchange money for the
marijuana, and then the defendant grabbed Mr. Cook‟s hand. Mr. Dennison saw “like
three more males with mask[s] on” approach the car. Mr. Dennison initially testified that
all of the men were armed, but he later testified that the defendant was not armed. Mr.
Dennison stated that one of the masked men demanded that Mr. Dennison give him
“whatever [he] had,” and Mr. Dennison said that he did not surrender any of his
possessions. He saw both Mr. Ryan Boykin and Mr. Cook struck with pistols, and the
men ordered the victims to get out of the vehicle. Mr. Dennison testified that once the
victims were out of the vehicle, the defendant got into the driver‟s seat and drove away
after saying, “Welcome to South Memphis, B***h.” After the defendant left in Ryan‟s
car, Mr. Dennison heard a gunshot, although he was not sure who fired the shot.

        The day after the robbery, Mr. Dennison went to the police station and gave a
statement about the robbery. He also viewed a photographic lineup, and he identified the
defendant. Next to the defendant‟s photograph, Mr. Dennison wrote “car driver,” but he
scratched out that phrase and wrote “[t]he robber that took the original vehicle we were in
after they took our personal items.” He explained that he revised his phrasing because he
believed that “car driver” was too vague of a description. During the trial, Mr. Dennison
testified that he could not identify anyone in the courtroom who was involved in the
robbery, but he testified that he did not make a mistake in his identification of the
defendant from the photographic lineup.

       Mr. Cook testified that he was sitting in the front seat of Mr. Ryan Boykin‟s car
when they pulled in to McLemore Market. He explained that the victims had been denied
by several people at the market before Mr. Young agreed to obtain marijuana for them.
Mr. Young made a phone call and told the victims to drive to a residence on Waverly
Street. Mr. Young directed them to a “blue house,” and he informed the victims that the
marijuana seller would arrive momentarily. Mr. Cook testified that Mr. Young exited the
vehicle and that the defendant approached the vehicle a short time later. He asked if the
victims were the ones who were looking to buy marijuana, and he directed them to pull
up closer to a car that was in front of them. Mr. Cook testified that the defendant was
wearing “a poufy jacket” that looked like “a black, looked like a white Polo kind.” The
defendant said that he would procure the marijuana, and he went behind the blue house.
He returned and asked whether the victims were “looking for Reggie, or Kush.” Mr.
Cook explained that “Reggie is like, not as good as weed and Kush is the best of the best
you can get.” Mr. Cook specified that they wanted “Kush,” and the defendant returned to
the house.

       When the defendant came back a third time, he gave Mr. Cook the marijuana but
did not immediately take the money. Mr. Cook testified that the defendant went to Mr.
                                            4
Ryan Boykin‟s side of the car and pulled out a pistol, and three armed men with “ski
masks” approached the vehicle. Mr. Cook said that the men told the victims “welcome to
South Memphis” and told the victims “to give them everything that they had.” Mr. Cook
stated that the men began “pistol whipping” him and Mr. Ryan Boykin. Mr. Cook
testified that someone took his cell phone, and the victims were ordered out of the car.
Mr. Cook believed that Mr. Ryan Boykin‟s cell phone was taken and that Mr. Dennison,
Mr. Aaron Boykin, and Mr. Matthew Boykin had money stolen.

       Mr. Cook gave a statement to police the next day at the police station. He also
viewed a photo spread, and he identified a person who was not the defendant. Next to the
photograph, he wrote, “Was in the back by [Mr.] Aaron [Boykin] pointing a gun at him[.]
[H]e had a mask on.” He testified that he selected a person from the photographic lineup
who he was not entirely positive was the person who robbed him. He testified that he
believed the person that he selected participated in the robbery because the robber was
heavyset and had dreadlocks, and of the six photographs, the person that he selected most
closely matched that description. He could not identify anyone in the courtroom who
participated in the robbery.

        Mr. Aaron Boykin testified that he was sitting in the middle of the backseat in Mr.
Ryan Boykin‟s car. He testified that he had met Mr. Young possibly “twice” prior to
their interaction at McLemore Market. Mr. Aaron Boykin stated that Mr. Young got into
a vehicle, and the group drove to a “baby blue house” on Waverly Street. When they
arrived, Mr. Young exited the vehicle, and the defendant approached the car and asked
the victims what they needed. Mr. Aaron Boykin testified that the defendant was wearing
a “Polo . . . navy blue vest.” He said that the defendant went into the blue house and
returned several times. On the third trip, he gave Mr. Cook the marijuana and “three
others came up behind” the victims “and opened the doors and put guns to [their] heads.”
Mr. Aaron Boykin said that all of the men were armed and that all of the men except for
the defendant were wearing masks. He testified that the defendant went to Mr. Ryan
Boykin‟s side of the vehicle and told Mr. Ryan Boykin to exit the car. Mr. Aaron Boykin
heard the defendant tell the rest of the victims to get out of the car and give the men
“everything” that they had. Mr. Aaron Boykin testified that Mr. Cook and Mr. Ryan
Boykin “got pistol whipped a few times by dude.” Mr. Aaron Boykin stated he was still
in the car when the defendant started to drive away, but he was able to jump out of the
car. Mr. Aaron Boykin explained that Mr. Ryan Boykin urged the victims to chase after
the car, and they heard a gunshot shortly thereafter.

       Mr. Aaron Boykin went to the police station the day after the robbery and gave a
statement. He was shown a photographic lineup, and he selected the defendant, writing,
“This is the dude that took off with the car” next to the defendant‟s photograph. Mr.

                                            5
Aaron Boykin was unable to identify anyone in the courtroom who participated in the
robbery.

        Mr. Matthew Boykin testified that he was twenty years old at the time of the
robbery. He stated that Mr. Young got into the car and that they all drove to a house on
Waverly Street. When they arrived, Mr. Young got out of the car while talking on the
phone. He directed the victims “to pull up beside a car,” and they complied. Mr. Young
then left, and Mr. Matthew Boykin was not sure where he went. Mr. Matthew Boykin
testified that the defendant approached the vehicle around ten minutes later and that the
defendant went into a house and returned to the vehicle several times. He stated that the
defendant returned a second time with “like three other dudes and that‟s when, you know,
stuff hit the fan.” Mr. Matthew Boykin testified that the three men were wearing masks
but that the defendant was not, and he stated that all three men were armed. He said that
the defendant was wearing “a purple hoodie, or something” and also was armed. The
men held the victims at gun point, and Mr. Matthew Boykin testified that money was
taken from him. He stated that once Mr. Ryan Boykin exited the car, the four men got
into the car and “high-tailed it” down the street.

        Mr. Matthew Boykin went to meet with police the day after the robbery. He was
shown a photograph lineup, and he selected the photograph of the defendant. Next to the
photograph, he wrote, “One of the guys he was at the right side of the vehicle, had a ski
mask on.” When asked how he identified the person if he had a mask on, Mr. Matthew
Boykin testified, “I‟m not sure, it‟s just kind of what I felt, you know, I could see his eyes
and everything. I‟m not, like, 100% insistent[] accurately, particularly.” He also
identified a second person from the same lineup. This individual was the same individual
identified by Mr. Cook, and next to the photograph of the second individual, Mr.
Matthew Boykin wrote “[g]ot in the driver‟s seat after pistol whipping [Mr.] Ryan
[Boykin], then immediately drove off with the vehicle.” Mr. Matthew Boykin could not
identify anyone in the courtroom who participated in the robbery.

        Mr. Young testified that he recalled a robbery occurring on December 9, 2012. He
stated that he was at McLemore Market prior to the robbery. He met with the victims and
agreed to get them marijuana. He stated that they “rode over” to “John Michael‟s house.”
The defendant then came out and told the victims “to pull up the street.” Mr. Young
testified that the defendant and four other men robbed the victims. He stated that the
defendant was the only person with a gun. He heard two gun shots. Mr. Young agreed
that when an officer asked him whether he participated in the robbery, he answered that
“They asked me and I went along with it, I have helped get them some marijuana before.”
He testified that he had no knowledge that a robbery was pending when he took the
victims to the defendant. Mr. Young admitted that he told police that the defendant, Mr.
Wortham, and a third person robbed the victims, but he testified that he was not telling
                                              6
the truth. He stated that he said Mr. Wortham and the third person were involved because
he “was hyped up and completely off of [his] medicine and homophobic.” He testified
that he took “mind medicine.” At trial, he testified that only the defendant was involved
with the robbery.

       Mr. Young identified the defendant in a photograph lineup. Next to the
defendant‟s picture, Mr. Young wrote, “That Jasper fired a shot at him and the rest of
them took and beat up them and got the money.” Mr. Young also identified the
defendant in the courtroom at trial. Mr. Young testified that on the morning of trial,
friends of Mr. Wortham asked him not to come to court, but he stated that the individuals
were “just playing.”

        Officer Adam Pickering testified that he was a crime scene investigator with the
Memphis Police Department (“MPD”). Officer Pickering tested the 4-Runner for
fingerprints, and he was only able to find one print “that was even possibly usable” was
on the review mirror inside of the vehicle. Officer Robert Winston also worked for the
MPD in the crime scene investigation unit. He testified that he was not able to make an
identification using the latent print.

      Sergeant Veronica Wimbley testified that she was an investigator for the MPD.
She showed the photographic lineup to Mr. Dennison, and she said that it only took “one
minute” for Mr. Dennison to choose the defendant‟s photograph. She said that based
upon the defendant‟s appearance in the courtroom that he looked like the person in the
photograph that Mr. Dennison chose, but she was not certain.

       Detective Samuel McMinn testified that he showed photo spreads to Mr. Ryan
Boykin, Mr. Cook, Mr. Aaron Boykin, and Mr. Matthew Boykin. He explained that the
victims were separated from each other to ensure that they did not converse with one
another between their statements. Detective McMinn agreed that it concerned him that
Mr. Matthew Boykin indicated that the defendant was wearing a ski mask, but he testified
that he accepted the identification. Detective McMinn testified that Mr. Cook was shown
a photograph lineup that included the defendant‟s photograph and that Mr. Cook was
unable to identify the defendant. Officer Kenneth Adams testified that he showed Mr.
Matthew Boykin the photo spread in which he identified the defendant and one other
individual.

       At the conclusion of the trial, the jury convicted the defendant of three counts of
aggravated robbery and two counts of attempted aggravated robbery. The trial court
imposed an effective sentence of twenty-four years. The defendant filed a motion for
new trial, which the trial court denied. He filed a timely notice of appeal, and we proceed
to consider his claims.
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                                       ANALYSIS

                               Sufficiency of the Evidence

        The defendant argues that the evidence was insufficient to sustain his convictions.
He contends that Mr. Young‟s testimony was not credible because he “was so intoxicated
on the [witness] stand.” He argues that the accounts of the victims were so varied and
inconsistent that they were unreliable and not credible. Finally, he contends that it was
revealed at trial that Mr. Dennison was permitted to sit with Mr. Ryan Boykin, Mr. Aaron
Boykin, and Mr. Matthew Boykin after Mr. Dennison identified the defendant, giving
him the opportunity “to taint the rest of the photo identifications.” The State responds
that the evidence was sufficient.

       When a defendant challenges the sufficiency of the evidence, the relevant question
for this court is “whether, after viewing the evidence in the light most favorable to the
State, 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). On appeal,
“„the State is entitled to the strongest legitimate view of the evidence and to all
reasonable and legitimate inferences that may be drawn therefrom.‟” State v. Elkins, 102
S.W.3d 578, 581 (Tenn. 2003) (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn.
2000)). Therefore, this court will not re-weigh or reevaluate the evidence. State v.
Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Instead, it is the trier of fact,
not this court, who resolves any questions concerning “the credibility of witnesses, the
weight and value to be given the evidence, as well as all factual issues raised by the
evidence.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). “[A]lthough
inconsistencies or inaccuracies may make the witness a less credible witness, the jury‟s
verdict will not be disturbed unless the inaccuracies or inconsistencies are so improbable
or unsatisfactory as to create a reasonable doubt of the appellant‟s guilt.” State v. Radley,
29 S.W.3d 532, 537 (Tenn. Crim. App. 1999).

       A guilty verdict removes the presumption of innocence and replaces it with a
presumption of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). The burden is
then shifted to the defendant on appeal to demonstrate why the evidence is insufficient to
support the conviction. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This court
applies the same standard of review regardless of whether the conviction was predicated
on direct or circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 381 (Tenn.
2011). “Circumstantial evidence alone is sufficient to support a conviction, and the
circumstantial evidence need not exclude every reasonable hypothesis except that of
guilt.” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012).

                                             8
       Aggravated robbery is defined as “the intentional or knowing theft of property
from the person of another by violence or putting the person in fear” that is
“[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.” T.C.A. § 39-13-401(a); -
402(a)(1) (2010). “A person commits criminal attempt who, acting with the kind of
culpability otherwise required for the offense . . . [a]cts with intent to complete a course
of action or cause a result that would constitute the offense, under the circumstances
surrounding the conduct as the person believes them to be, and the conduct constitutes a
substantial step toward the commission of the offense.” T.C.A. § 39-12-101(a)(3).

       Viewing the evidence in the light most favorable to the State, the victims went to
the McLemore Market to purchase marijuana. Mr. Young directed them to a residence
on Waverly Street, where the defendant approached the victims and asked them what
they wanted. After delivering the marijuana, the defendant and several other masked
men pointed guns at the victims and demanded that they give them “everything that they
had.” Mr. Ryan Boykin and Mr. Cook testified that their cell phones were stolen, and
Mr. Matthew Boykin testified that money was stolen from him. The defendant then
drove away in Mr. Ryan Boykin‟s vehicle, which was discovered several days later with
numerous items missing from the interior. Mr. Ryan Boykin and Mr. Young identified
the defendant in a photographic lineup and in court, and Mr. Matthew Boykin, Mr. Aaron
Boykin, and Mr. Dennison all identified the defendant in a photographic lineup. Mr.
Ryan Boykin also testified that the defendant looked very different at the time of the
robbery than he did in the courtroom. In the photograph shown to the victims, the
defendant did not have an Afro or glasses.

        All of the victims testified to the same general sequence of events, with minor
discrepancies. The jury was made aware of the fact that there was slight disagreement on
whether the victims proceeded directly to the blue house or stopped at another residence
first, whether the defendant was armed, and whether there were three or four additional
attackers. The variation in the testimonies of the victims was not significant enough to
undermine the confidence in the verdict of the jury. Further, four of the victims and Mr.
Young were able to identify the defendant from a photographic lineup days after the
robbery. Officers testified that, although they did not observe the victims constantly, they
made every effort to keep the victims separate while showing them the photographic
spread. There was no evidence that Mr. Dennison informed Mr. Ryan Boykin, Mr.
Aaron Boykin, or Mr. Matthew Boykin which person to identify in the photographic
lineup. Finally, to the extent that the defendant may be arguing that the identification
process was tainted to the point of inadmissibility, we agree with the State that this
argument is waived. The defendant did not raise the issue in his motion for new trial, and
he has not asked this court to review the issue for plain error. See Tenn. R. App. P. 3(e)
(stating that “no issue presented for review shall be predicated upon error in the
                                             9
admission or exclusion of evidence . . . unless the same was specifically stated in a
motion for a new trial; otherwise such issues will be treated as waived”).

                                   CONCLUSION

      Based on the foregoing, we affirm the judgments of the trial court.




                                                _________________________________
                                                JOHN EVERETT WILLIAMS, JUDGE




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