             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                      AT JACKSON

                                MARCH 1997 SESSION




STATE OF TENNESSEE,                     )
                                        )
                     APPELLEE,          )
                                        )    No. 02-C-01-9604-CC-00124
                                        )
                                        )    Madison County
v.                                      )
                                        )    J. Franklin Murchison, Judge
                                        )
                                        )    (Aggravated Robbery and
                                        )     Aggravated Burglary)
JOHN WAYNE BLUE,                        )
                                        )
                    APPELLANT.          )



FOR THE APPELLANT:                           FOR THE APPELLEE:

George Morton Googe                          John Knox Walkup
District Public Defender                     Attorney General & Reporter
227 West Baltimore Street                           500 Charlotte Avenue
Jackson, TN 38301                            Nashville, TN 37243-0497
(Appeal Only)
                                             Robin L. Harris
Thomas T. Woodall                                  Assistant Attorney General
Attorney at Law                              450 James Robertson Parkway
203 Murrell Street                           Nashville, TN 37243-0493
P.O. Box 1075
Dickson, TN 37056-1075                       James G. Woodall
(At Trial and of Counsel on Appeal)          District Attorney General
                                             P.O. Box 2825
Daniel J. Taylor                             Jackson, TN 38302
Assistant Public Defender
227 West Baltimore Street                           Donald W. Allen
Jackson, TN 38301                            Assistant District Attorney General
(Trial Only)                                 P.O. Box 2825
                                             Jackson, TN 38302




OPINION FILED:___________________________________


AFFIRMED


Joe B. Jones, Presiding Judge
                                    OPINION


       The appellant, John W ayne Blue (defendant), was convicted of aggravated robbery,

a Class B felony, and aggravated burglary, a Class C felony, by a jury of his peers. The

trial court found the defendant was a standard offender in the aggravated robbery case and

imposed a Range I sentence of twelve (12) years confinement in the Department of

Correction. In the aggravated burglary case, the trial court found the defendant was a

multiple offender and imposed a Range II sentence of eight (8) years confinement in the

Department of Correction. In this Court, the defendant contends the State of Tennessee

failed to prove beyond a reasonable doubt the victim sustained "serious bodily injury" and

the sentences imposed by the trial court were excessive. After a thorough review of the

record, the briefs submitted by the parties, and the law governing the issues presented for

review, it is the opinion of this Court the judgment of the trial court should be affirmed.

       On the evening of August 1, 1994, the victim, J. D. Tolliver, was preparing for bed

when he heard a woman at his front door say "Let me in" at approximately 8:00 p.m. The

victim asked the woman to identify herself. She told the victim she was Aramele Blue.1

The victim recognized the voice of the woman. She was the sister of the defendant. The

victim sat in a chair next to the front door and talked with the woman. He refused to permit

her to enter the apartment.

       While the victim was talking to the defendant's sister, the defendant ripped the

screen from the bathroom window and entered the victim's apartment through the window.

The torn screen and the tools used by the defendant were on the ground below the

window. The defendant went to the victim's bedroom upon entering the apartment. He

went through the victim's chest of drawers. When the defendant failed to locate the

victim's money, he removed a blanket from the bed with the pillows and walked to where

the victim was talking to his sister. The victim saw the defendant when he entered the

room and recognized him. The defendant placed the blanket and pillows over the victim's

head. The defendant struck the victim in the mouth with an object. He told the victim he


       1
         The victim also referred to the woman as Ann Marie Blue. A police officer
testified the name of the woman was Ann Marie Blue.

                                              2
was going to kill him if he did not give him his money. The victim, who had cashed a

retirement check that day, gave the defendant $220. The defendant exited the apartment

through the back door.

       The victim suffered a laceration to his lip and two of his bottom teeth were knocked

out of his mouth. The lip was oozing blood when the first officer arrived. There was blood

on both sides of the front door jam, and there was blood in the kitchen.

       The defendant asserted an alibi defense. He called several witnesses to support

his defense. However, a statement the defendant gave a police officer two days after the

date of the offense contradicted the testimony of the alibi witnesses.



                                              I.



       The defendant contends the State of Tennessee failed to establish the victim

suffered serious bodily injury, an essential element of aggravated robbery in the context

of this case. He does not challenge the sufficiency of the evidence in the aggravated

burglary case.

       When an accused challenges the sufficiency of the convicting evidence, this Court

must review the record to determine if the evidence adduced at trial is sufficient "to support

the finding by the trier of fact of guilt beyond a reasonable doubt." Tenn. R. App. P. 13(e).

This rule is applicable to findings of guilt based upon direct evidence, circumstantial

evidence, or a combination of direct and circumstantial evidence. State v. Dykes, 803

S.W.2d 250, 253 (Tenn. Crim. App.), per. app. denied (Tenn. 1990).

       In determining the sufficiency of the convicting evidence, this Court does not

reweigh or reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.

App.), per. app. denied (Tenn. 1990). Nor may this Court substitute its inferences for those

drawn by the trier of fact from circumstantial evidence. Liakas v. State, 199 Tenn. 298,

305, 286 S.W.2d 856, 859, cert. denied, 352 U.S. 845, 77 S.Ct. 39, 1 L.Ed.2d 49 (1956).

To the contrary, this Court is required to afford the State of Tennessee the strongest

legitimate view of the evidence contained in the record as well as all reasonable and

legitimate inferences which may be drawn from the evidence. State v. Cabbage, 571



                                              3
S.W.2d 832, 835 (Tenn. 1978).

          Questions concerning the credibility of the witnesses, the weight and value to be

given the evidence, as well as all factual issues raised by the evidence are resolved by the

trier of fact, not this Court. Cabbage, 571 S.W.2d at 835. In State v. Grace, 493 S.W.2d

474, 476 (Tenn. 1973), our Supreme Court said: "A guilty verdict by the jury, approved by

the trial judge, accredits the testimony of the witnesses for the State and resolves all

conflicts in favor of the theory of the State."

          Since a verdict of guilt removes the presumption of innocence and replaces it with

a presumption of guilt, the accused, as the appellant, has the burden in this Court of

illustrating why the evidence is insufficient to support the verdicts returned by the trier of

fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This Court will not disturb a

verdict of guilt due to the sufficiency of the evidence unless the facts contained in the

record are insufficient, as a matter of law, for a rational trier of fact to find that the accused

is guilty beyond a reasonable doubt. Tuggle, 639 S.W.2d at 914.

          In the context of this case, the state was required to prove beyond a reasonable

doubt the following elements to establish the offense of aggravated robbery:

          1) The defendant intentionally or knowingly took property from the person of the

victim;

          2) The theft was committed by violence or placing the victim in fear; and

          3) The defendant caused the victim to suffer serious bodily injury.

Tenn. Code Ann. § 39-13-402.

The term "serious bodily injury" is defined in the following manner:

                Serious bodily injury means bodily injury which involves:

                (A) A substantial risk of death;

                (B) Protracted unconsciousness;

                (C) Extreme physical pain;

                (D) Protracted or obvious disfigurement; or

                (E) Protracted loss or substantial impairment of a function of
                a bodily member, organ or mental faculty;


Tenn. Code Ann. § 39-11-106(a)(33).



                                                  4
       In this case, the defendant caused the victim to lose his two bottom teeth on the

night in question. The two officers who went to the victim’s apartment to investigate the

aggravated burglary and aggravated robbery testified the victim lost his two bottom teeth

at the hands of the defendant. This Court is of the opinion the loss of the two teeth

constituted “obvious disfigurement” within the meaning of “serious bodily injury.” See State

v. Sims, 909 S.W.2d 46, 48-49 (Tenn. Crim. App.), per. app. denied (Tenn. 1995).

       There is sufficient evidence to support a finding by a rational trier of fact that the

defendant was guilty of aggravated robbery beyond a reasonable doubt. Tenn. R. App.

P. 13(e).

                                             II.



       The defendant contends the sentences imposed by the trial court are excessive.

The assertion is made in very general terms. This issue is not seriously argued.

       Based upon the requisite de novo review of the record within the meaning of Tenn.

Code Ann. § 40-35-401(d), it is the opinion of this Court the sentence imposed for

aggravated burglary and aggravated robbery should be affirmed. The trial court found four

enhancement factors and no mitigating factors.

       The defendant has an extensive criminal record. He committed the crimes in

question while on probation. He had previous revocation of release into the community.

The trial court also found the victim was particularly vulnerable due to his age. The

defendant was 26 while the victim was in his mid-70s. These factors are supported by the

record.




                                   _____________________________________________
                                         JOE B. JONES, PRESIDING JUDGE




CONCUR:




______________________________________

                                             5
      GARY R. WADE, JUDGE




______________________________________
       CURWOOD WITT, JUDGE




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