            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                        FEBRUARY 2000 SESSION

               STATE OF TENNESSEE, v. CARLOS C. BEASLEY.

                   Direct Appeal from the Criminal Court for Shelby County
                          No. 98-03607   James C. Beasley, Jr., Judge



                     No. W1999-00426-CCA-R3-CD - Decided May 2, 2000


        The appellant, Carlos C. Beasley, referred herein as “the defendant,” appeals as of right from
a conviction for especially aggravated robbery by a Shelby County jury. The same jury found the
defendant guilty of voluntary manslaughter, from which the defendant does not appeal. The Shelby
County Criminal Court imposed a sentence of twenty-five (25) years for especially aggravated
robbery in the Department of Correction. The defendant presents two appellate issues: 1) whether
the evidence is sufficient for a rational trier of fact to find that every element of especially
aggravated robbery has been proven beyond a reasonable doubt; and 2) whether the record shows
that the trial court in its capacity as thirteenth (13th) juror failed to independently weigh the evidence
upon consideration of the motion for a new trial.

T.R.A.P. 3; Judgment of the Criminal Court is Affirmed.

LAFFERTY, SR. J., delivered the opinion of the court, in which TIPTON, J., and WELLES, J., joined.

William D. Massey, Memphis, Tennessee, for the appellant, Carlos C. Beasley.

Paul G. Summers, Attorney General and Reporter, and J. Ross Dyer, Assistant Attorney General,
for the appellee, State of Tennessee.

                                               OPINION

       Mrs. Mariquita Harrell, mother of the victim, testified that she saw her son, Marius Harrell,
on December 4, 1997, at her home. Her son appeared to be in good health. She stated that the next
time she saw her son was in the hospital that evening, where she saw his dead body.

        Dr. O'Brian Cleary Smith, a forensic pathologist, testified that he conducted an autopsy on
Marius Harrell on December 5, 1997. Dr. Smith opined that the victim died as a result of two (2)
gunshot wounds. Dr. Smith determined that one bullet passed through the victim’s body, and one
bullet was recovered in the upper right quadrant of the victim's abdomen. Dr. Smith stated that the
bullet was a .25 automatic caliber pistol full metal jacket. He testified that both gunshot wounds
were near contact wounds.
          Officer Robert Hardy of the Memphis Police Department testified that he responded to a
critical shooting call at 1096 South Lauderdale in Memphis, Tennessee. Officer Hardy observed a
male lying in the front yard, who appeared to have been shot. The officer stated that he saw blood
on the man’s shirt, and he could hear the man trying to breathe. Officer Hardy testified that he heard
gurgling sounds of liquid in the victim's throat. He asked the victim to tell him what had happened.
The victim stated that Carlos Beasley shot him and gave a description of Beasley's vehicle, a white
Ford. Officer Hardy learned from witnesses that the shooting took place in the house next door,
located at 1102 South Lauderdale, Memphis, Tennessee.

        Walter Carruthers testified that he had known the victim, Marius Harrell, for about six (6)
years. The victim was renting a house from Mr. Carruthers’ father. On December 4, 1997, Mr.
Carruthers stated that he went to the victim’s home at approximately 11:30 a.m., where he remained
until approximately 4 p.m. While Mr. Carruthers was in the living room, he saw the victim count
out one thousand dollars ($1,000) from money he kept in his front pockets. Mr. Carruthers left the
victim's home and returned about 7 p.m. Before he entered the house, Mr. Carruthers stated that
some men next door were yelling that Marius had been shot. Mr. Carruthers then saw the victim
lying in front of the porch. He went to the victim, who was in pain, and noticed that the insides of
his front pockets were sticking out. Mr. Carruthers could not feel any money in the victim’s pocket.
Carruthers admitted that he was serving two (2) sentences for aggravated robbery and denied taking
any money from the victim.

        Officer Cham N. Payne of the Memphis Police Crime Scene Unit testified that he went to
1102 South Lauderdale, Memphis, Tennessee, in response to a shooting. Officer Payne identified
photographs from the scene depicting a shoe lying in the front door, an overturned chair in the living
room, a table, a torn twenty dollar ($20) bill on the floor, a Motorola pager, a spent bullet, a penny,
a chrome shell, and some leafy substance on the floor that appeared to be marijuana. A pair of wire-
rimmed eyeglasses and another small bullet casing were located in the hallway. In the den area,
Officer Payne found a derringer loaded with two (2) live .38 rounds underneath a sofa cushion and
three .44 casings.

       Lieutenant Charles Logan of the Memphis Homicide Bureau testified that on December 4,
1997, he attempted to locate the defendant, but was unsuccessful.

       Sergeant James L. Fitzpatrick of the Memphis Homicide Bureau testified that on January 14,
1998, he met with Tameka Beasley, the defendant’s sister. She surrendered a Ruger .44 magnum
super Red Hawk revolver that had been taken from the victim.

        Lieutenant Sammy Harold Ballard of the Memphis Homicide Bureau testified that he
interviewed the defendant on December 27, 1997. Lieutenant Ballard advised the defendant of his
rights by the use of a waiver form. The defendant signed the form agreeing to give a statement,
which was read to the jury. In the statement, the defendant admitted shooting Marius Harrell with
a .25 caliber automatic pistol. The victim was armed with a .44 magnum that was chrome with a
black handle. The defendant stated that he went to 1102 South Lauderdale to deliver some marijuana


                                                 -2-
to Marius. The defendant had a half pound of marijuana in his possession, but he was going to
deliver only a quarter pound to the victim for two hundred fifty dollars ($250).

         The defendant stated that he drove to the victim's home in a white Ford Escort and
subsequently shot Marius Harrell, because the victim tried to rob him with the .44 magnum. The
defendant stated that he put the marijuana on the table, and the two men haggled over the price. He
further stated that when the victim pulled a .44 magnum, he grabbed the victim's arm, and they both
fell to the floor. The defendant pulled his gun to get the victim off of him and fired the weapon. The
defendant stated he got up, dizzy from the struggle, and ran. During the struggle, the defendant’s
glasses were knocked off, and he left his glasses and a beeper at the house.

        Tameka Beasley, sister of the defendant, testified that the police were looking for her brother.
Prior to the incident, she stated that her brother told her he was going to sell some marijuana to
someone. Ms. Beasley testified that she later gave a .44 magnum gun to Detective Fitzpatrick.

         On his own behalf, the defendant testified that he knew the victim. He and the victim had
served time together, and he had sold the victim some marijuana on a couple of occasions. Also, the
defendant testified that he had sold marijuana to Mr. Carruthers. The defendant stated that he saw
the victim twice on December 4, 1997. The first time was at 6 p.m., when he told the victim that he
had two (2) pounds of marijuana. The second time was when he returned to the victim's home with
a half pound of marijuana. The defendant told the victim that he wanted two hundred fifty dollars
($250) for the marijuana. The defendant stated that he had the marijuana in a tote bag, but that he
put the .25 pistol in his pocket for his own safety. The defendant testified that he put the marijuana
on the table in the living room and told the victim that he wanted two hundred fifty dollars ($250)
for it. The victim said that he would give the defendant two hundred dollars ($200). Suddenly, the
victim pointed a .44 magnum at the defendant. The defendant stated that he jumped up and grabbed
the barrel of the weapon, and the two men fell to the floor fighting. During the scuffle, the victim
knocked the defendant’s glasses off his face, and the defendant, in reaction and fear for his life,
pulled his .25 pistol and shot the victim twice. The defendant testified that he had no intention of
shooting the victim or of robbing him. The defendant stated that the victim never showed him any
money. The victim was still alive, and the defendant did not want to kill him but only wanted to
disarm him. The defendant stated that he panicked and left with the victim's .44 magnum. The
defendant admitted that he had a previous conviction of attempted aggravated robbery in which a
person had been shot.




                                                  -3-
                                     LEGAL ANALYSIS
                                 SUFFICIENCY OF EVIDENCE

       The defendant asserts that the proof adduced at trial is totally insufficient to establish that the
defendant is guilty of especially aggravated robbery involving the taking of any money from the
victim. The State would argue otherwise.

         Following a jury conviction, the initial presumption of innocence is removed from the
defendant and exchanged for one of guilt, so that, on appeal, the defendant had the burden of
demonstrating the insufficiency of the evidence. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
It is the duty of this Court to affirm the conviction unless the evidence adduced at trial was so
deficient that no rational trier of fact could 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). In State v. Matthews, 805
S.W.2d 776 (Tenn. Crim. App.), perm. app. denied, (Tenn. 1990), this Court held this rule is
applicable to findings of guilt predicated upon direct evidence, circumstantial evidence, or a
combination of both direct evidence and circumstantial evidence. Id. at 779.

       This Court does not reweigh or reevaluate the evidence, nor may we replace our inferences
for those drawn by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
Furthermore, the State is entitled to the strongest legitimate view of the evidence and all reasonable
inferences which may be drawn therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992), cert.
denied, 507 U.S. 954, 113 S. Ct. 1368 (1993). A jury verdict accredits the testimony of the State’s
witnesses and resolves all conflicts in favor of the State’s theory. State v. Williams, 657 S.W.2d 405,
410 (Tenn. 1983).

         The defendant quotes the court in State v. Crawford, 470 S.W.2d 610, 613 (Tenn. 1971),
asserting that he is entitled to a reversal of the offense of especially aggravated robbery, because the
State has failed to establish “[a] web of guilt” woven “around the defendant from which he cannot
escape and from which facts and circumstances the jury could draw no other reasonable inference
save the guilt of the defendant beyond a reasonable doubt.” Further, the defendant asserts that there
is no proof that he intended to deprive the victim of his money or even the firearm that was taken.
The firearm was taken only to avoid being shot or robbed himself.

        The indictment of especially aggravated robbery in this cause alleges that the defendant did
knowingly and violently, by the use of a deadly weapon, obtain from the victim, Marius D. Harrell,
a sum of money and a firearm over the value of five hundred dollars ($500) and cause serious bodily
injury to the said Marius Harrell.

        Tennessee Code Annotated § 39-13-403 defines especially aggravated robbery as:

                (a) Especially aggravated robbery is robbery as defined in § 39-13-401: (1)
                Accomplished with a deadly weapon; and (2) Where the victim suffers
                serious bodily injury.

                                                   -4-
        Tennessee Code Annotated §39-13-401 states that:

                (a) Robbery is the intentional or knowing theft of property from the person
                of another by violence or putting the person in fear.

       Theft of property requires that the accused, with the intent to deprive the owner of property,
knowingly obtains or exercises control over the property without the owner’s effective consent.
Tenn. Code Ann. § 39-14-103.

        Circumstantial evidence may be used exclusively or in combination with direct evidence to
establish guilt of criminal conduct. State v. Smith, 868 S.W.2d 561, 569 (Tenn. 1993). The one
element necessary in almost all criminal offenses, which is most often proven by circumstantial
evidence, is that relating to the accused’s culpable mental state. Hall v. State, 490 S.W.2d 495, 496
(Tenn. 1973). Other than an accused stating what his or her purpose, intent, or thinking was at the
relevant times, the trier of fact is left to determine the mental state by making inferences from the
surrounding circumstances it finds to exist. See, e.g., Poag v. State, 567 S.W.2d 775, 778 (Tenn.
Crim. App. 1978). Furthermore, the jury is not obligated to accept the defendant’s explanation of
the events. The weight to be given circumstantial evidence is for the jury to determine. Williams
v. State, 552 S.W.2d 772, 776 (Tenn. Crim. App. 1977); State v. McMahan, No. 03C01-9707-CR-
00262, 1999 WL 177590, at *6 (Tenn. Crim. App. Mar. 31, 1999).

         The facts in this case present a classic illustration in which a jury must determine if the State
has proven to its satisfaction, beyond a reasonable doubt, that the defendant took the victim’s money.
From our review of the facts, we believe that the evidence supports the jury’s verdict. Mr.
Carruthers, with all his warts, testified that the victim had one thousand dollars ($1,000) in his front
pocket. The defendant went to the victim’s home to sell marijuana for cash. Although the defendant
testified that he did not see any money, the jury evidently believed otherwise. When Mr. Carruthers
checked the victim’s pockets, they were turned inside out and empty. The defendant admitted taking
a firearm from the victim, although he claimed it was for his own self-defense, and he had no
intention of stealing the .44 magnum. The jury had all the facts in front of it as to which players had
access to the victim and the missing money. The jury concluded that the defendant not only took
the money, but most certainly took the firearm to deprive the victim of his property. The jury
resolved the credibility of the witnesses in favor of the State; therefore, we see no reason to disturb
their verdict. There is no merit to this issue.




                                                  -5-
                                   THIRTEENTH (13TH) JUROR

        The defendant asserts that the trial court, acting as the thirteenth (13th) juror, failed to engage
in an independent weighing of the evidence as to especially aggravated robbery. The State argues
that the record does not support this assertion.

        Rule 33(f), Tennessee Rules of Criminal Procedure provides:

                The trial court may grant a new trial following a verdict of guilty if
                it disagrees with the jury about the weight of the evidence. If the trial
                court grants a new trial because the verdict is contrary to the weight
                of the evidence, upon request of either party the new trial shall be
                conducted by a different judge.

         This rule is predicated upon an allegation of error in a motion for a new trial that the trial
court failed to satisfactorily weigh the evidence as to the jury’s finding of guilt. In State v. Carter,
896 S.W.2d 119, 120 (Tenn. 1995), our Supreme Court held that a trial court’s duty to act as
thirteenth juror is mandatory pursuant to Rule 33(f). Also, the Supreme Court determined that where
the trial court denies a motion for a new trial, an appellate court may presume, in the absence of
evidence to the contrary, that the trial court approved the jury’s verdict as the thirteenth juror,
without an explicit statement by the judge on the record that he has done so. Id. If the trial court is
dissatisfied with the verdict of the jury, it is his or her duty to set aside the verdict and grant a new
trial. If it appears to this Court, from statements made by the trial court in passing upon the motion
for a new trial, that he was not really satisfied with the verdict, it would be this Court’s duty to grant
a new trial. State v. Dale Nolan, No. 01C01-9511-CC-00387, 1997 WL 351142, at *15 (Tenn. Crim.
App. June 26, 1997) (citing Cumberland Tel. & Tel. Co. v. Smithwick, 112 Tenn. 463, 467-68, 79
S.W. 803, 804 (1904), perm. app. denied, (Tenn. 1998)).

        At the hearing for a motion for a new trial, the trial court stated:

                As to the especially aggravated robbery, again, I think there’s
                circumstantial evidence that the jury can consider that Mr. Beasley
                stole the one thousand dollars. And I also think that there’s evidence
                -- sufficient evidence that a jury could determine that the pistol was
                the proceeds of the robbery.

                And -- I mean, asked to explain why, I don't think we ever are able to
                get inside the head of individuals that commit crimes to go into why.
                There was a lot about this that didn't make a lot of sense. But then
                again, somebody that sells drugs and the world that we live in today
                that chooses to go armed and sell drugs, they don't think like I think
                I think anyway. So for me to try to explain why somebody did
                something under those circumstances, I don't think I’ll ever be able
                to do that.

                                                   -6-
               But I think the issue before me is, was there sufficient evidence. And
               I think that there was sufficient evidence. I think there was evidence
               that a jury could look at and see that the money was missing and the
               gun was missing. And I think a jury could determine that this was
               taken by force and violence and that the victim suffered serious
               bodily injury. Those are the elements of especially aggravated
               robbery.

               And again, my job and my role is to determine was there that type of
               evidence available and could a rational and reasonable jury return a
               verdict such as that based on the evidence that was presented. And
               I find that they could.
                                               ****
                                   th
               Again, acting as 13 juror in the especially aggravated robbery, I find
               that there was sufficient evidence to sustain that verdict and also that
               a reasonable jury could return a verdict based on the evidence that
               was presented and the law that was presented; and I don’t see any
               basis for me overturning that.

        Upon consideration of the entire statement of the trial court at the hearing on the motion for
a new trial, we are of the opinion that the trial judge weighed the evidence and concurred with the
jury’s verdict, thereby fulfilling his role as thirteenth (13th) juror. There is no merit to this issue.

       The trial court’s judgment is affirmed.




                                                  -7-
