            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                       SEPTEMBER SESSION, 1998       FILED
                                                     November 5, 1998

                                                  Cecil Crowson, Jr.
STATE OF TENNESSEE,         )                        Appellate C ourt Clerk
                            )    No. 03C01-9802-CR-00060
      Appellee              )
                            )    KNOX COUNTY
vs.                         )
                            )    Hon. Richard Baumgartner, Judge
SAMUEL POOLE,               )
                            )    (Aggravated Robbery)
      Appellant             )



For the Appellant:               For the Appellee:

Paul Hensley                     John Knox Walkup
625 South Gay Street             Attorney General and Reporter
Suite 640
Knoxville, TN 37902              Elizabeth B. Marney
                                 Assistant Attorney General
                                 Criminal Justice Division
                                 425 Fifth Avenue North
                                 2d Floor, Cordell Hull Building
                                 Nashville, TN 37243-0493


                                 Randall E. Nichols
                                 District Attorney General

                                 Marsha Selecman
                                 Asst. District Attorney General
                                 City-County Building
                                 Knoxville, TN 37902




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                        OPINION



      The appellant, Samuel Poole, appeals his conviction by a Knox County jury of

one count of aggravated robbery, for which he received a sentence of ten years

imprisonment in the Department of Correction. In this appeal as of right, the

appellant raises three issues for our review:

       I. Whether the evidence is sufficient to support his conviction;

       II. Whether the trial court properly declined to clarify an instruction in
       the charge upon request by the jury; and

       III. Whether the trial court properly admitted testimony regarding a
       prior bad act of the appellant.



       After review of the record before this court, the judgment of conviction is

affirmed.




                                      Background



       Shortly before midnight on Saturday, October 15, 1994, William Faulkner and

his friend, Antonio Moore, traveled, in Faulkner’s 1989 Hyundai Sonata, to Austin

East High School in Knoxville to pick up Faulkner’s younger sister, Carmine, from a

school related social event. Once Faulkner had picked up his sister, the trio picked

up Ereeka Brown, a friend of Carmine’s, and then proceeded to a nearby Bi-Lo

Market. The group arrived at the convenience store at approximately 12:30 a.m.



       Carmine Faulkner and Ereeka Brown went into the store to purchase sodas.

Meanwhile, William Faulkner got out of his car to talk with an acquaintance, Greg

Ballenger, whom he had noticed was at the store. While Faulkner was speaking

with Ballenger at the side of the building, the appellant approached, “pulled a gun

on [ Faulkner],” and demanded Faulkner’s jewelry. The appellant pointed the gun at


                                          2
Faulkner’s head and another individual attempted to take gold chains from the

victim’s neck. Faulkner testified that “I thought he was going to kill me.” When the

other individual loosened his grip, Faulkner started running. In his effort to escape,

the victim was hit in the head with the gun wielded by the appellant. Injured and

with “blood all over [his] shirt,” Faulkner ran into the convenience store. The injury

to his head required stitches.



       Carmen Faulkner, Ereeka Brown, and Antonio Moore, who were waiting in

Faulkner’s car, saw Faulkner run past them into the store. They noticed blood on

Faulkner’s head. Carmen stated that her brother looked scared and was “hollering”

something about a robbery. As the group was observing Faulkner, the appellant ran

up to Faulkner’s car, pointed his gun at the window, and ordered the passengers out

of the car. Antonio Moore, who was in the front passenger seat, attempted to slide

over to the driver’s seat in an effort to escape. However, he was unsuccessful and

the three passengers were forced out of the car at gunpoint. Carmen and Ereeka

ran into the store. The appellant then ordered Antonio Moore to empty his pockets.

Moore complied, giving the appellant the eight dollars on his person. The appellant

then struck Moore on the head, knocking off his glasses and causing him to fall to

the ground. Frightened by the experience, Moore “just took off running . . . and . .

.ran all the way home.” While Faulkner watched from inside the store, the

appellant drove away in Faulkner’s vehicle.



       Faulkner’s vehicle was recovered, thirteen days later, by the Knoxville Police

Department. The stereo system had been taken out of the car, a beeper was

missing, and there were cigarette burns in the car seats.



       At trial, five witnesses positively identified the appellant as the robber. The

appellant was described by the eyewitnesses as being an African-American male,

approximately 5'9", 150 pounds, black hair, brown eyes, and wearing a black


                                          3
Houston Oilers starter jacket. William Faulkner, who had previously identified the

perpetrator from a photo lineup, denied that he had described the robber as having

a “box-style haircut.” Rather, Faulkner testified that he had told the police officers

that the robber had “like a small fro,” “short on the sides” and “nappy.” Faulkner

could not recall whether the appellant had facial hair on the night of the robbery.

Carmine Faulkner confirmed her brother’s identification of the appellant as the

perpetrator. She also testified that the appellant had “a little fro,” and not a box

hairstyle. She did not notice whether the appellant had facial hair. Ereeka Brown

and Antonio Moore, likewise, identified the appellant as the perpetrator. Finally,

Greg Ballenger testified that he knew the appellant prior to the robbery and

identified him as the perpetrator.



       In his defense, the appellant presented the testimony of Paul Lane and Dan

Crenshaw, officers with the Knoxville Police Department. Officer Lane testified that

the offense report indicated that both William Faulkner and Antonio Moore

described the appellant as having a box-style haircut, i.e., “short on the sides long

on the top.” The report also indicated that the robber had facial hair. Officer

Crenshaw stated that he retrieved latent fingerprints from the recovered 1989

Hyundai. He testified that the appellant’s prints did not match those removed from

the vehicle. He explained, however, that it was very difficult to remove prints from

an automobile.



       The appellant also testified. He stated that, on the night of the robbery, he

had gone to the Bi-Lo market to purchase some cigars. When he was leaving the

store, Greg Ballenger approached him and asked if he had “any weed.” Specifically,

Ballenger asked whether the appellant could sell him a “dime bag,” or, ten dollars

worth of marijuana. The appellant replied that he had some “weed.” Ballenger then

introduced the appellant to William Faulkner. The appellant testified that, at this

point, he heard footsteps from behind, got nervous, and went home.


                                          4
          Based upon this proof, the jury found the appellant guilty of one count of

aggravated robbery of William Faulkner.




                                I.   Sufficiency of the Evidence



          The appellant first challenges the sufficiency of the convicting evidence. In

support of this argument, the appellant makes two assertions. First, he avers that

the evidence is insufficient to establish his identity as the perpetrator of the offense.

Second, he asserts that the State failed to prove that “the property was taken from

the person of William Faulkner by the use of violence or by putting the person in

fear.”1



          An accused challenging the sufficiency of the evidence on appeal has the

burden of proving that the evidence is insufficient. State v. Tuggle, 639 S.W.2d 913,

914 (Tenn.1982). 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). Moreover, the State is entitled to the strongest legitimate view of the

evidence and all legitimate or reasonable inferences which may be drawn therefrom.

State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). It is the appellate court’s duty to

affirm the conviction if the evidence viewed under these standards was sufficient for

any rational trier of fact to have found the essential elements of the offense beyond

a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 2789

(1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); Tenn. R. App. P. 13(e).




          1
         The indictment charged that the appellant “. . . did . . . by violence and by putting William
Faulkner in fear, by use of a deadly weapon, take from the person of William Faulkner a 1989
Hyunda i Sonata m otor vehic le. . . .”

                                                  5
                                       A. Identity

       In State v. Strickland, 885 S.W.2d 85, 87-88 (Tenn. Crim. App. 1993), perm.

to appeal denied, (Tenn. 1994), this court held that the testimony of a victim

identifying the perpetrator is sufficient in and of itself to support a conviction.

Moreover, the credibility of eyewitness testimony identifying the accused as the

perpetrator of the criminal offense for which he stands trial is a question of fact for

the determination of the jury upon consideration of all competent proof. Strickland,

885 S.W.2d at 87 (citing State v. Crawford, 635 S.W.2d 704, 705 (Tenn. Crim. App.

1982)); see also State v. Williams, 623 S.W.2d 118, 120 (Tenn. Crim. App. 1981).

In addition to William Faulkner, four eyewitnesses, identified the appellant as the

perpetrator. Although eyewitness testimony differed from the police offense report

in that they denied stating that the robber had a “box haircut” and “facial hair,” the

jury obviously accredited the eyewitness testimony offered at trial. Accordingly, the

proof is more than sufficient to conclude that the appellant was the perpetrator of

the charged offense. This issue is without merit.



                       B. Taking from the Person of the Victim

       The appellant also contends that the proof does not support a conviction for

aggravated robbery because the appellant did not establish a taking, by violence or

putting in fear, of property from the person of another. He supports his argument by

proof that Faulkner was in the convenience store at the time his car was taken.

Moreover, he asserts that it is clear that the jury found that “no force was exerted on

William Faulkner at the time his automobile was taken.”



       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" accomplished

with a deadly weapon or by the display of a deadly weapon. Tenn. Code Ann. §§

39-13-401(a); 39-13-402(a)(1)(1991). Theft of property is defined as knowingly

obtaining or exercising control over property "without the owner's effective consent"


                                           6
and "with the intent to deprive the owner" of the property. Tenn. Code Ann. §

39-14-103 (1991). Contrary to the appellant’s argument, aggravated robbery does

not involve a taking from the person. See State v. Nix, 922 S.W.2d 894, 900 (Tenn.

Crim. App. 1995), perm. to appeal denied, (Tenn. 1996). As this court held in State

v. Nix, “if an offender, with the intent to deprive the owner, asserts control over

property by means of the owner or possessor being removed from the presence of

the property by force or fear, the offense of robbery is committed to the same

degree that it is if the offender carries the property away from the victim’s presence.”

Nix, 922 S.W.2d at 901.



       In the present case, the appellant threatened Faulkner with a weapon, while

attempting to rob him of his jewelry. When Faulkner attempted to escape, the

appellant hit him on the head with the gun. Seizing the opportunity to flee, Faulkner

started running toward the convenience store. The appellant apparently pursued,

but, rather than following Faulkner inside the store, went to Faulkner’s vehicle where

he forced the remaining passengers out of the car and proceeded to steal the car.

Faulkner observed the taking of his automobile from within the grocery store.

Clearly, the jury could have concluded from the proof that the appellant obtained

possession of Faulkner’s automobile by separating the victim from his vehicle by the

exercise of force or fear. Under these circumstances, the jury was entitled to find

the appellant guilty of aggravated robbery. 2 This issue is without merit.




                                   II. Refusal to Clarify Instruction



       Next, the appellant contends that the trial court committed error by refusing to

offer guidance to the jury when it was obvious that the jury did not understand the




       2
           The trial co urt pr ope rly instr ucte d the jury as to the elem ents of ag grav ated robb ery.

                                                       7
proffered instructions. 3 After three hours of deliberation, the jury submitted the

following question:

        We need clarification in element four of Aggravated Robbery. Does
        the use of violence and putting the person in fear, need to be directed
        at the “owner,” indicating William of the property.”

The trial court responded:4

        The only thing that I can do is refer you to the instructions that I have
        given you. I don’t think it would be appropriate for me to try and clarify
        in the sense of telling you anything further than the instruction that the
        court has given you.

        What I encourage you to do is . . . read those instructions and attempt
        to answer any questions you have among yourselves. That is the only
        thing I can tell you in response to this question.


Whereupon the jury resumed deliberations5 and, approximately nineteen minutes

later, returned with a verdict against the appellant.



        In criminal cases, it is the duty and obligation of a trial judge, without request,

to instruct the jury as to the law applicable to the evidence as well as to any issues

which the jury must ultimately decide. Poe v. State, 370 S.W.2d 488, 489 (Tenn.

1963); see also State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986), cert. denied,



        3
          The appellant contends that “the State’s introduction of evidence of the alleged
aggravated robbery of Antonio Moore contributed substantially to the jury’s confusion concerning
the jury instructions and further that the Court erred in not reminding the jury that Defendant is not
cha rged with th e Ag grav ated Rob bery o f any o ther p erso n exc ept W illiam Fau lkne r whe n it
received the ques tion from the jury.”

        4
         Prior to responding to the jury’s question, the trial court concluded:
         [T]he statement, ‘The defendant knowingly obtained or exercised control over
        property owned by William Faulkner,’ and . . . ‘that the defendant took such
        property’ -- referring to Faulkner’s property - - ‘from the person of another by the
        use of v iolence’ - - fro m the person is referring to the own er of the p roperty. I
        mean, they are going to have to sort that out. I don’t think I can give them my
        analysis of the situation. I don’t think it would be appropriate for me to try and give
        them my ana lysis of it.

        5
         In response to the court’s answer, the jury foreperson replied:
        I feel like I nee d -- som e of us a re not rea lly clear on the w ay it is presen ted. I
        me an, yo u kn ow, a bou t the -- and I need to as k you a que stion . . . .[I]f you can’t
        answer me, it is kind of a -- it kind of puts us in a , what, right where we was
        before?

        Upon which, several jurors commented:
        Juror No. 1: I am okay. I mean, I don’t know. I think I understand. I don’t know
        if you all do or no t.

        Juror N o. 3:     Ready to begin.

                                                     8
476 U.S. 1153, 106 S.Ct. 2261 (1986); State v. Thompson, 519 S.W.2d 789, 792

(Tenn. 1975). The jury has the duty to apply the law contained in the charge of the

trial judge to the ultimate facts which it determines exist. See Ford v. State, 101

Tenn. 454, 458, 47 S.W. 703, 705 (1898). Due to the importance of the charge on

the role of the jury in reaching its’ decision, the accused “is entitled to a clear and

distinct exposition of the law of his case as applicable to the facts.“ Strady v. State,

45 Tenn. (5 Cold.) 300, 307 (1868). In other words, the accused is entitled to have

the law pertaining to his case stated plainly to the jury in a manner which enables

them to comprehend the principles involved. See Lancaster v. State, 43 Tenn. (3

Cold.) 339, 343 (1866).



       If it becomes plain to the trial judge that the jurors did not understand or

comprehend the legalese contained in the charge, the trial judge has the authority to

give supplemental instructions in response to a question propounded by the jury.

Leach v. State, 552 S.W.2d 407, 408 (Tenn. Crim. App. 1977). However, when the

answer to the question asked by the jury is clearly articulated in the charge of the

trial judge, it is not necessary for the trial judge to give a supplemental instruction.

See Burns v. State, 591 S.W.2d 780, 784 (Tenn. Crim. App. 1979); see also State

v. Summers, 692 S.W.2d 439 (Tenn. Crim. App. 1985). In the present case, the trial

court correctly charged the jury as to the elements of aggravated robbery; the terms

were easily understood by the average layperson and the law was clearly articulated

in the charge. Accordingly, the trial judge did not err by refusing to clarify the

original charge with a supplemental instruction.



       We also note that this issue has been waived. No special request was

submitted to the court nor was any objection made regarding the failure of the trial

judge to give a supplemental instruction. See Tenn. R. App. P. 36(a).

Furthermore, this issue has not been properly briefed. Tenn. Ct. Crim. R. App.10;

Tenn. R. App. P. 27.


                                           9
                                             III. Prior Bad Acts



         In the appellant’s final issue, he challenges the trial court’s denial of his

motion in limine to exclude testimony concerning the alleged robbery of Antonio

Moore.6 Specifically, the appellant based his motion on the fact that the testimony is

irrelevant, highly prejudicial, and is likely to confuse the jury in deciding whether an

offense was committed against William Faulkner.



         In denying the motion, the trial court found:

         Basically, this is uncharged conduct or 404-type evidence. . . . I think
         that all of those events are part and parcel of the offense that he is
         charged with. Now, it is true that he was not charged with the robbery
         of Mr. Moore. However, the question is -- and, of course, the main
         issue here is identity, which is one of the things that is always an issue
         in 404-type analysis. Had he been charged with the offense of robbery
         of Mr. Moore, clearly, in my mind that case would have been properly
         joined for trial as a common motive or scheme, continuing series of
         events, and the evidence of that would have been evidence
         introducible at the trial in which Mr. Faulkner was the victim.

         So I think that, under a 404(b) analysis, this is the continuation of a
         continuous series of events that are required to prove the actual
         robbery of Mr. Faulkner; that part and parcel of those events are the
         events involving Mr. Moore, including the robbery. I agree with the
         State that the issue of whether or not the robbery of Mr. Moore would
         have had an impact on his ability to recall the events and identify the
         defendant. . . .

         The court continued:

         But the fact is that this is nothing more than an eyewitness. Mr. Moore
         is an eyewitness to the part of the events that occurred or allegedly
         occurred at this Bi-Lo, and identity is an issue. I agree with that . . . .
         But my point is that, under the analysis, as I understand the law, the
         issue of continuing common scheme or plan, absence of mistake,
         those are reasons that this type of evidence comes in. It is an
         exception, of course, and I think all of those things - - all of those
         issues justify in this case the testimony of Mr. Moore.


         6
           The appellant was never charged with the robbery of eight dollars from the person of
Antonio M oore. T he State offered no exp lanation as to why the ap pellant wa s not ch arged w ith
this in cide nt. Sp ecific ally, the pros ecu tor sta ted, “N ow, w hy he w asn ’t cha rged with th at, I do n’t
know . Maybe it wa s a m inuscule amo unt. I didn’t draf t the indictm ent. I didn’t pres ent the ca se to
the grand jury. . . . [H]ad we gotten this motion earlier and thought there was going to be any
problem , we m ight could h ave res ubm itted it to the gran d jury, and I thin k that wo uld have been to
the d efen dan t’s de trim ent to have anot her c oun t in the indict me nt to s how this ro bbe ry of a s ma ll
amo unt of m oney from Mr. Mo ore.”

                                                      10
       Clearly, he can testify about what Poole did. . . . What I am saying is
       he can go on and add the fact that he in fact robbed him. Now, I will
       [instruct] them that he is not on trial for the robbery of Mr. Moore. I will
       tell the jury that. But I think it is part and parcel of all the events that
       took place out there, and for the reasons previously stated - - . . .
       under the analysis of the case law of Rule 404 that they come in. So I
       am going to let them in.



       Initially, we note that the appellant has waived this issue for failure to properly

brief the issue before this court. See Tenn. Ct. Crim. R. App. 10(b); Tenn. R. App.

P. 27(a)(7). Notwithstanding waiver, we elect to consider the issue on its merits. In

reviewing this issue, we are mindful that the admissibility of evidence rests largely

within the discretion of the trial court and its findings will not be disturbed on appeal

absent an abuse of that discretion. See State v. Dubose, 953 S.W.2d 649, 652

(Tenn. 1997) (citations omitted). This standard is applicable even where the

proffered testimony falls under the restrictions of Tenn. R. Evid. 404(b), governing

evidence of other crimes, wrongs, or acts of the accused, provided that the trial

court complies substantially with the procedural requirements of the rule. See

Dubose, 953 S.W.2d at 652. In the present case, the trial court complied with the

procedural requirements of Rule 404(b), thus, the abuse of discretion standard

applies.



       Under Rule 404(b), “[e]vidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show action in conformity

with the character trait.” Nonetheless, such evidence may be admissible for other

purposes. See Tenn. R. Evid. 404(b). Specifically, “evidence of uncharged crimes

may be admissible: (1) to prove identity (including motive and common scheme or

plan); (2) to prove intent; and (3) to rebut a claim of mistake or accident if asserted

as a defense.” State v. McCary, 922 S.W.2d 511, 514 (Tenn. 1996) (citation

omitted).




                                          11
       In the present case, the appellant’s taking of eight dollars from the person of

Antonio Moore by force constitutes an uncharged offense and, thus, a prior bad act

under Rule 404(b). The trial court concluded that the uncharged crime against

Antonio Moore was part of a single transaction and that identity was a material issue

before the jury. There is no doubt that the uncharged act and the robbery of

William Faulkner occurred within a single criminal episode. See State v. Hoyt, 928

S.W.2d 935, 943 (Tenn. Crim. App. 1995). Proof of acts occurring before and after

the offense at issue are admissible to provide the trier of fact with “the full story” and

are relevant in establishing the identity of the accused. Hoyt, 928 S.W.2d at 943

(citing N. Cohen, Tennessee Law of Evidence, § 404.11 (2nd ed. 1990). E.g., State

v. Payne, 791 S.W.2d 10, 16 (Tenn. 1990), aff’d by, Payne v. United States, 501

U.S. 808, 111 S.Ct. 2597 (1991)); see also McCary, 922 S.W .2d at 514. Thus, we

conclude that the uncharged offense against Antonio Moore meets an exception to

the general bar against evidence of prior bad acts. Moreover, we hold that the

evidence is relevant to the issues before the jury and that the probative value of the

evidence is not outweighed by the danger of unfair prejudice. See Tenn. R. Evid.

401, 402, 403. Accordingly, we conclude that the trial court did not abuse its

discretion in permitting the testimony relative to the uncharged aggravated robbery

of Antonio Moore. This issue is without merit.



       After review of the record and issues before this court, we find no error of law

committed by the trial court requiring reversal. The judgment of conviction entered

by the trial court is affirmed.




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                          ____________________________________
                          DAVID G. HAYES, Judge




CONCUR:



______________________________
JOHN H. PEAY, Judge


______________________________
JOSEPH M. TIPTON, Judge




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