         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs December 21, 2005

          STATE OF TENNESSEE v. TERRANCE YVES SMOTHERS

                    Appeal from the Circuit Court for Montgomery County
                         No. 40300629     John H. Gasaway, Judge



                   No. M2005-00784-CCA-R3-CD - Filed February 9, 2006


Following a bench trial, the Defendant, Terrance Yves Smothers, was convicted by the Montgomery
County Circuit Court of aggravated robbery, misdemeanor theft, and two counts of especially
aggravated kidnapping. The Defendant received an effective twenty-year sentence for these
convictions. The single issue presented for our review is whether the testimony of the accomplice
was sufficiently corroborated. After a review of the record, we find that the evidence is insufficient
to corroborate the accomplice’s testimony and, therefore, reverse and dismiss the judgments of
conviction.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed;
                                     Case Dismissed

DAVID H. WELLES, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and J.C.
MCLIN , JJ., joined.

Timothy R. Wallace, Clarksville, Tennessee, for the appellant, Terrance Yves Smothers.

Paul G. Summers, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; John
Carney, District Attorney General; and John Finklea, Assistant District Attorney General, for the
appellee, State of Tennessee.


                                             OPINION

                                       Factual Background

       At approximately 10:00 p.m. on May 21, 2003, eighteen-year-old Jason Taylor returned to
his Clarksville home after picking up his two sisters. He was driving his white, two-door
Oldsmobile Cutlass. Upon arrival, his sisters went inside the residence, but he remained in the
driveway as his fourteen-year-old brother Justin Taylor was “coming up the street.” At this time,
a masked man came running from the back of the house, forced both boys at gunpoint to get inside
Jason’s vehicle, and ordered them to put their heads between their legs. The assailant then drove the
boys around the neighborhood. According to Justin, while in the car, the assailant kept the gun
pointed at Jason’s head. Jason described the gun as “a .45 and had a laser site on it.”

        During the drive through the neighborhood, the assailant took the detachable CD player face
and demanded that Jason tell him where the key to the “wheel locks” was located. Jason answered
that the key was at his house. The assailant then returned to the Taylors’ residence and told Jason
that “he had forty-seconds to get the . . . key for the wheel locks[.]” Jason went inside the house,
retrieved the key, and returned to the vehicle. The assailant took the key to the “wheel locks” and
again began driving. After leaving the neighborhood, the assailant stopped the vehicle and told the
boys that they “had ten seconds to get out of the car.” The boys exited the vehicle and, at this time,
they observed a car behind him that “cut [its] lights off” and passed them.

        Earlier that evening, Jason Taylor had observed a “beige tan-colored car” with a dark brown
“vinyl top” following behind him. He stated that when he “pulled to the side to pick up [his] sisters,
they drove by slowly and they just left.” Jason recognized the car that “cut [its] lights off” as the
same one that had followed him home earlier in the evening. Justin Taylor testified that, when he
was walking home, he observed a four-door Oldsmobile Cutlass in the area. He described the
vehicle as “like a light tan with a dark brown top.”

        Justin described the masked assailant’s clothing as “dark bluejeans and like a darker – like
a dark colored [long-sleeved] pull over and like some thick, maybe Army or like thick gloves.”
Justin stated that he viewed the assailant’s wrists, which were “like a light-color[,]” and that the
assailant was “five six to six foot” in height. Jason Taylor’s description of the assailant was
substantially similar to that of his brother. He added that the assailant’s “voice sounded like Ice Tea,
the Rapper[.]” On cross-examination, Jason testified that, in his statement to police, he stated that
the assailant was “a light-skinned black male.”

        Jason Taylor’s vehicle was subsequently found, but it was in “no condition of driving, it was
burned[.]” Jason testified that items taken from the vehicle that night included a three-thousand-
dollar stereo system and a set of rims worth twenty-five hundred dollars.

       At approximately 10:00 p.m. the following evening, Detective Kenneth Austion of the
Clarksville Police Department stopped Travis Otey, who was driving his “beigish” Oldsmobile
Cutlass. According to Austion, he stopped Otey because he had been informed that Otey “was a
suspect in an incident that occurred sometime earlier that week and that he might be in possession
of some items that were stolen.” Detective Austion found speakers and stereo equipment inside the
car, which were later identified as items stolen from Jason Taylor’s vehicle.

       Otey implicated the Defendant in the crimes. On September 3, 2003, a Montgomery County
grand jury indicted the Defendant, along with Travis Otey, for conspiracy to commit aggravated
robbery, aggravated robbery, Class C felony theft, carjacking, and two counts of especially
aggravated kidnapping.


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        Pursuant to an agreement with the State, Otey testified at the Defendant’s January 21, 2005
trial and provided the following version of events. Otey stated that, on May 21, 2003, he and the
Defendant went to Wal-mart, and they purchased a BB gun with an “infrared beam on it[,]” which
looked like a pistol. Later that evening, the two men were riding in Otey’s Oldsmobile Cutlass in
the neighborhood of Bo Peep Lane, the location of the Taylor residence. Otey described his
Oldsmobile as white with a maroon top and stated that they were in this area upon the Defendant’s
instruction. Once in the Bo Peep Lane area, Otey let the Defendant out of the car. He then met the
Defendant several minutes later, who was now driving a white, two-door Oldsmobile Cutlass. Otey
stated that he had seen this vehicle about “fifteen to twenty minutes before then.”

        Otey followed behind the Defendant in his vehicle. According to Otey, the Defendant
motioned for him to turn around, and both cars returned to the residence on Bo Peep Lane. Otey
stated that, when he arrived at the house, “there was somebody getting back in the car” driven by the
Defendant. Otey testified that he again followed the Defendant away from the residence. Thereafter,
the car driven by the Defendant stopped, and Otey observed two individuals exit the vehicle. Upon
observing this, Otey “hit [his] lights.” Both cars then proceeded to the end of the road, and the
Defendant and Otey went in separate directions.

        According to Otey, he did not see the Defendant again until the following morning, when the
Defendant called him from his girlfriend’s house to pick him up. Otey testified that “they got the
rims and amp and went across town to Kraft Street . . . [t]o the car wash . . . [t]o sell the rims[.]”
Otey stated that, upon arriving at the Kraft Street business, “[s]omebody came out there and looked
in the car at the rims and then went back and we left.” Otey testified that only the Defendant got out
of the vehcile. Additionally, Otey stated that the Defendant gave him stereo equipment “[f]or taking
him to sell the rims[.]”

        After Otey and the Defendant left the Kraft Street business, they proceeded to James
McCullen’s house. According to Otey, James and his wife Melanie were present in the home, and
James looked at the rims. Otey testified that “[w]e messed around for an hour or so and then we left,
and left the rims there.” On cross-examination, Otey stated that, on a prior occasion, he had been
with the Defendant when he had purchased rims for his car from Mike Jones Automotive.

       Following Otey’s testimony, the State called several witnesses to corroborate Otey’s
testimony. First, the State called Lamont Smith, owner of the business on Kraft Street. However,
Mr. Smith testified that the Defendant never brought rims to his store.

       The State next called Anthony Guinyard, an employee of the Kraft Street business, to testify.
Mr. Guinyard testified that the Defendant brought a pair of rims into the Kraft Street business and
spoke with Mr. Smith. Mr. Guinyard stated that the Defendant then left the store but returned “three
hours later” to retrieve the rims. According to Mr. Guinyard, a man named Travis was with the
Defendant when he returned to the store. On cross-examination, Mr. Guinyard testified that he did
not know when the Defendant came to the store, only that it was approximately “two and a half years
ago.” He also admitted that he never saw the rims. Additionally, it was established that, while Mr.


                                                 -3-
Guinyard was in court on unrelated charges, he was approached by officers, who “came to offer me
some help, . . . saying if I knew something” about the charges against the Defendant.

       The State then called Melanie McCullen, the wife of James McCullen, who testified that
James often looked at auto parts for sale. She testified that she could not recall whether the
Defendant had ever brought rims to her house, but she stated that “[c]ould have been, I wouldn’t say
no.” The State then recalled Lamont Smith, who testified that Mr. Guinyard was lying if he stated
that Mr. Smith met with the Defendant about purchasing rims.

        The State also called Mr. Dick Stovall, a security manager at Wal-mart and custodian of
records . Mr. Stovall testified that, on May 21, 2003, at 4:56 p.m., someone purchased a pellet pistol
and a laser site that could be attached to the pistol. Mr. Stovall could not identify the individual who
purchased this pistol. Finally, the State called Terrence Welsh, with the Montgomery County
Sheriff’s Office, Jail Division, to testify. At this time, counsel for the Defendant stipulated that the
Defendant had escaped from jail, while he was incarcerated on other charges but following the
present charges. The State rested, and the Defendant did not offer any evidence on his own behalf.

         During its case-in-chief, the State entered into evidence a ski-mask and photographs of the
rims, stereo equipment, and the key for the wheel locks. While testimony established that the stereo
equipment was located in Otey’s vehicle, no testimony was provided regarding if the rims and the
key for the wheel locks were located and, if so, where. The ski-mask was only identified by
witnesses as being similar to the one worn by the assailant. At the conclusion of the evidence, the
trial court determined that the accomplice Otey’s testimony was sufficiently corroborated and found
the Defendant guilty of aggravated robbery, misdemeanor theft, and two counts of especially
aggravated robbery.

        At the sentencing hearing, the Defendant again argued that the accomplice’s testimony was
not sufficiently corroborated. The trial court considered the Defendant’s argument as an oral motion
for a judgment of acquittal “made in conjunction with the presentation by the Defendant of his
motion for new trial.”1 The trial court continued the hearing in order to consider the Defendant’s
argument and, on March 16, 2005, denied the Defendant’s motion. Thereafter, the trial court
sentenced the Defendant to an effective twenty-year sentence2 in the Department of Correction, to
be served consecutively to a prior three-year sentence for aggravated assault. This appeal followed.




         1
          It does not appear that a motion for new trial was ever reduced to writing and filed as required by Tenn. R.
Crim. P. 33(b). However, we will address the sufficiency of the evidence issue because this issue is reviewable
notwithstanding the untimely motion for new trial. See State v. Boxley, 76 S.W .3d 381, 390 (Tenn. Crim. App. 2001).

         2
          The Defendant was sentenced to twenty years as a violent offender for each especially aggravated kidnapping
conviction. He received a sentence of ten years as a Range I, standard offender for the aggravated robbery conviction
and a sentence of eleven months and twenty-nine days for the misdemeanor theft conviction. All sentences were to be
served concurrently in the Department of Correction.

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                                                     ANALYSIS

       Relying on this Court’s decision in State v. Boxley, 76 S.W.3d 381 (Tenn. Crim. App. 2001),
the Defendant argues that the accomplice’s testimony was insufficiently corroborated to support his
convictions. That is, none of the witnesses other than Travis Otey, the accomplice,3 could identify
the Defendant as a participant in the crimes.

        It is well settled that, “[i]n Tennessee, a conviction may not be based solely upon the
uncorroborated testimony of an accomplice.” State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001)
(citing State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994)). This “very salutary rule” is designed
to prevent the “obvious dangers” of allowing a defendant to be convicted solely on the basis of an
accomplice’s testimony. Sherrill v. State, 321 S.W.2d 811, 814 (Tenn. 1959). However, Tennessee
law requires only a modicum of evidence in order to sufficiently corroborate the testimony of an
accomplice. State v. Copeland, 677 S.W.2d 471, 475 (Tenn. Crim. App. 1984).

       With respect to the nature, quality, and sufficiency of the evidence necessary to corroborate
an accomplice’s testimony, this court has held:

         The rule of corroboration as applied and used in this State is that there must be some
         evidence independent of the testimony of the accomplice. The corroborating
         evidence must connect, or tend to connect the defendant with the commission of the
         crime charged; and, furthermore, the tendency of the corroborative evidence to
         connect the defendant must be independent of any testimony of the accomplice. The
         corroborative evidence must of its own force, independently of the accomplice’s
         testimony, tend to connect the defendant with the commission of the crime.

                            ....

                The evidence corroborating the testimony of an accomplice may consist of
         direct evidence, circumstantial evidence, or a combination of direct and
         circumstantial evidence. The quantum of evidence necessary to corroborate an
         accomplice’s testimony is not required to be sufficient enough to support the
         accused’s conviction independent of the accomplices testimony nor is it required to
         extend to every portion of the accomplice’s testimony. To the contrary, only slight


         3
           At the trial court level, the State disputed whether Travis Otey was an accomplice. “An accomplice is one who
knowingly, voluntarily, and with common intent unites with the principal offender in the commission of a crime.” State
v. Allen, 976 S.W .2d 661, 666 (Tenn. Crim. App. 1997). The general test is whether the accomplice would be indicted
for the offense charged against the defendant. Id. (citations omitted). Otey was originally charged in the same
indictments as the Defendant. In this state, if the offense in question was not committed by the person’s own conduct,
the person may, nonetheless, be criminally responsible as a principal to the offense if the person “solicits, directs, aids,
or attempts to aid another person to commit the offense.” Tenn. Code Ann. § 39-11-402(2) (2003). W e are constrained
to hold that, under Tennessee law, Otey was an accomplice as a matter of law based upon his testimony and the
indictments.

                                                            -5-
       circumstances are required to corroborate an accomplice’s testimony. The
       corroborating evidence is sufficient if it connects the accused with the crime in
       question.

State v. Griffis, 964 S.W.2d 577, 588-89 (Tenn. Crim. App. 1997) (citations omitted).

         The proof necessary to corroborate the accomplice’s testimony must include “some fact
testified to, entirely independent of the accomplice’s testimony, which, taken by itself, leads to the
inference, not only that a crime has been committed, but also that the defendant is implicated in it;
and this independent corroborative testimony must also include some fact establishing the
defendant’s identity. . . . ” Shaw, 37 S.W.3d at 903 (quoting Bigbee, 885 S.W.2d at 803). In other
words, the corroboration must include some fact establishing the identity of the defendant as a
criminal actor. Boxley, 76 S.W.3d at 387. It is generally for the trier of fact to determine whether
sufficient corroboration exists. Id. (citing Shaw, 37 S.W.3d at 903). However, as this Court has
previously pointed out, “[e]vidence which merely casts a suspicion on the accused . . . is inadequate
to corroborate an accomplice’s testimony.” Id. (quoting Griffis, 964 S.W.2d at 589).

        In Boxley, three men were involved in an attempted robbery, which resulted in the shooting
death of one of the victims. Two of the men confessed to their involvement in the crime and
implicated the defendant as a participant in the aborted robbery. Although the State’s witnesses
could corroborate the accomplices’ testimony as to “the time the crime occurred, the type vehicle
used, the manner in which the offense was committed, and the number and race of persons
present[,]” none of the State’s evidence “relate[d] to the identity of the defendant.” Id. Based on
the facts presented in Boxley, this Court concluded that the evidence was insufficient to corroborate
the defendant’s participation in the crime.

       In the present case, the State argues that Otey’s testimony is corroborated by the following:

               1. Justin Taylor described Otey’s vehicle and the route taken during
               the kidnapping;

               2. Detective Kenneth Austion found Otey in possession of stereo equipment
               stolen during the robbery;

               3. Dick Stovall, a security manager and custodian of records at Wal-Mart,
               testified that, on May 21, 2003 at 4:56 p.m., a pellet gun with a laser was
               purchased; and

               4. Anthony Guinyard, an employee of the Kraft Street business, stated that
               the Defendant was present in the store with rims for resale.

From consideration of the proof in the record before us, we find the evidence insufficient to
corroborate the testimony of the accomplice Travis Otey. As in Boxley, none of this evidence relates


                                                 -6-
to the identity of the Defendant. See id. “It is not enough to simply corroborate that a crime has
been committed in a manner described by the accomplice[].” Id. (citing Shaw, 37 S.W.3d at 903).
“The corroborative evidence must of its own force, independently of the accomplice’s testimony,
tend to connect the defendant with the commission of the crime.” Griffis, 964 S.W.2d at 588. The
record is devoid of any independent evidence connecting the Defendant to Otey’s Oldsmobile
Cutlass, the crime scene or the surrounding area, the weapon, the mask, or the stolen car or items.
See Boxley, 76 S.W.3d at 387.

        The only testimony arguably relating to the identity of the Defendant is Mr. Guinyard’s
testimony that the Defendant brought rims to the Kraft Street business to sell. However, Mr.
Guinyard could not give a description of the rims; in fact, Mr. Guinyard never observed the rims.
Mr. Guinyard could not recall when this occurred, only that it had been about two and one-half years
prior to the trial. Guinyard’s testimony only connected the Defendant with a set of rims, not the
stolen rims. Because rims are mass-marketed items, possession of rims alone is not sufficient
evidence to connect the Defendant with the crime in question. Accordingly, we are unable to
conclude that this evidence is sufficient corroboration that the Defendant participated in the crimes.
The evidence is insufficient to support the guilty verdicts.

                                          CONCLUSION

        Based upon our review of the record, we are unable to find corroboration of the testimony
of the accomplice. Accordingly, the judgments of conviction are reversed, and the case is dismissed.



                                                       ___________________________________
                                                       DAVID H. WELLES, JUDGE




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