                                                                                      03/30/2017




       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                         Assigned on Briefs March 7, 2017

                 STATE OF TENNESSEE v. JULIAN AGNEW

                 Appeal from the Criminal Court for Shelby County
                      No. 13-04046       Chris Craft, Judge
                     ___________________________________

                          No. W2016-00908-CCA-R3-CD
                      ___________________________________


Julian Agnew (“the Defendant”) was convicted by a Shelby County jury of one count of
aggravated robbery. The trial court sentenced the Defendant to ten years and six months
in the Department of Correction with release eligibility after service of eighty-five
percent of the sentence. On appeal, the Defendant argues that the trial court abused its
discretion by allowing prosecutorial misconduct in closing arguments and that the
evidence at trial was insufficient for a rational juror to have found him guilty of
aggravated robbery beyond a reasonable doubt. After a thorough review of the record
and case law, we affirm.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and JAMES CURWOOD WITT, JR., J., joined.

Stephen Bush, District Public Defender, and Phyllis Aluko, Assistant District Public
Defender, Memphis, Tennessee, for the appellant, Julian Agnew.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Lora Fowler,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                     OPINION
                       I. Factual and Procedural Background

                                       Jury Trial

      Ashley Patterson testified that on April 11, 2013, she was working at the Check
Into Cash store on Getwell Road around 10:00 a.m. Ms. Patterson stated that she had
gone to a bank to withdraw $3,000 for the business’ daily expenses and transactions.
When she returned to the store from the bank, she “stepped out of [her] truck and locked
[her] truck, walked to the back of [her] truck and [a man] popped out from the truck that
was beside [her] and pointed the box [cutter] blade in [her] face and said [‘]give me the
money.[’]” Ms. Patterson described the man as wearing a black hoodie and being slightly
taller than her height of 5 foot 2 inches. When Ms. Patterson refused to give the man the
money, they began “tussling.” The man “grabbed [her] purse and it got wrapped around
[her] arm. And then he pushed [her] to the ground and stuck his hand in [her] purse,
grabbed the money out and took off.” Ms. Patterson stated that she was cut on her finger
and on her head during the robbery. She testified that the weather that day was “cloudy
and rainy” but that it was light outside. She stated that he was approximately one arm’s
length away and that she could see the man’s face as he approached her. At trial, Ms.
Patterson identified the Defendant as the man who committed the robbery.

        After the Defendant and Ms. Patterson “tussled” over her purse, the Defendant
“took off.” Ms. Patterson saw the Defendant run between the buildings but then lost
sight of him. Ms. Patterson was taken to a local hospital for treatment, and she later gave
a statement to police. She also viewed a photographic lineup while at the police station.
Ms. Patterson testified that she read and signed a statement called “advice to witness
viewing photographic display” before viewing the lineup. She stated that, on the lineup,
she “circled [the Defendant’s] picture, put the date, put what happened and signed [her]
name.” Ms. Patterson explained that she was asked to identify the Defendant from a
group of five or six men during the preliminary hearing. Ms. Patterson stated that she
could not identify the Defendant during the preliminary hearing because the Defendant
“had on glasses and shaved off his goatee,” and she did not recognize him. She stated
that, as soon as she sat down, she realized she had made a mistake. Ms. Patterson stated
that she was sure the Defendant was the individual who robbed her and the individual
whom she picked out in the photographic lineup.

        On cross-examination, Ms. Patterson testified that the Defendant held a box cutter
in his right hand while he robbed her. She admitted that, after the offense, she told the
police that the Defendant could have had a knife, but she stated that she believed it was a
box cutter because the cuts she sustained were so shallow. Ms. Patterson stated that the
Defendant held the weapon near her face, but she explained that the Defendant had a
jacket on and that “the jacket was covering most of it but the blade.” On redirect-
examination, Ms. Patterson agreed that she never informed the police that the Defendant
did not have a weapon. She agreed that she described the weapon as a box cutter, and she
explained that she was cut by the blade during the struggle with the Defendant. Ms.
Patterson explained that, after the altercation with the Defendant, she felt shocked and
was “just really scared and didn’t know what to do.”

                                           -2-
       Officer Lernard Bowens testified that on April 11, 2013, he worked the day shift
for the Memphis Police Department. He stated that, around 10:00 a.m., he arrived at the
scene of the robbery on Getwell Road. He observed that Ms. Patterson was “nervous and
scared[,]” that she “seemed disheveled[,]” that “[h]er clothes were all messed up[,]” and
that “she had a cut on her hand and on her head.” Officer Bowens stated that Ms.
Patterson was bleeding “a little bit,” so “[s]he was transported to Delta Medical in
noncritical condition.” Officer Bowens testified that Ms. Patterson informed him that a
man “approached her from the street and she had her money in her purse [for] Check Into
Cash.” Ms. Patterson told Officer Bowens that the man “came up to her [and] was
shaking her trying to get the purse from her[]” and that “she held onto the purse and
that’s when he start[ed] hitting her with his fist and cut her with a knife.” Ms. Patterson
also informed Officer Bowens that the man “went in her purse and got the money out and
ran.” Ms. Patterson informed Officer Bowens that $3,000 was stolen from her purse.

        On cross-examination, Officer Bowens agreed that, in the incident report he
prepared, he wrote that Ms. Patterson informed him that during the struggle her purse was
wrapped around her arm and that the man was armed with a knife. He also agreed that, in
the incident report, he wrote that Ms. Patterson informed him that the man was cutting
her with his knife and hitting her head with his fist. On redirect-examination, Officer
Bowens explained that the incident report was prepared at the scene of the offense based
on the witness’s statements. However, Officer Bowens agreed that Ms. Patterson did not
initial or sign the incident report that he prepared and that it was not her official
statement.

       Angela Hunter testified that on April 11, 2013, around 10:00 a.m., she was driving
“on Barron at the red light getting ready to make a right [turn] onto Getwell[.]” Ms.
Hunter’s daughter, C.M., was a passenger in the vehicle.1 Ms. Hunter observed a man
“standing out in the rain with a hood on his head.” She stated that a truck “pulled in,”
and the man “ran over toward the truck.” Ms. Hunter saw a woman, whom she later
learned was Ms. Patterson, exit the truck, and the man “ran toward her [and] like threw
her down on the ground.” Ms. Hunter stated that, by the time the traffic light changed
and she turned right onto Getwell, the man “was tussling with the young lady[]” and she
believed the individuals were involved in a domestic dispute. Ms. Hunter explained that
she was approximately a car’s length away from the altercation between the two
individuals. After turning onto Getwell, Ms. Hunter observed the man “dragging” Ms.
Patterson, like he was “trying to get something from her.” She stated that she did not see
the man take anything from Ms. Patterson. Ms. Hunter described the man as wearing “a
black jacket with a hood tied tightly around his face.”

        1
          It is unclear from the record whether Ms. Hunter’s daughter was an adult so we will refer to her
by her initials, which is the policy of this court.
                                                  -3-
       Ms. Hunter stated that she then pulled into the parking lot of the Check Into Cash
store and observed that the man was “struggling” with Ms. Patterson. She stated that she
“pulled up” and told the man to leave Ms. Patterson alone. She observed that Ms.
Patterson was “sitting down[,] bleeding and crying.” Ms. Hunter stated that the man
“managed to break away and took off running.” Ms. Hunter followed him in the parking
lot until he ran behind Walgreens. Ms. Hunter then pulled out of the parking lot and
turned left onto Barron because she believed the man had run in that direction. She saw a
white Nissan Maxima “sitting there with a young lady in it on the phone.” Ms. Hunter
stated that, by this time, she had called 9-1-1 and was speaking with the emergency
dispatcher, who asked her for the make and model of the vehicle. Ms. Hunter stated that
the vehicle “pulled off” but that the driver “kept hitting the brakes like she was looking
for somebody.” Ms. Hunter began to follow this vehicle until the emergency dispatcher
told her to go back to the scene of the robbery. Ms. Hunter stated that, when she testified
at the Defendant’s preliminary hearing, she was unable to identify the Defendant as the
man who committed the robbery. She also testified that, on the day of the robbery, the
man was not wearing glasses and that she did not see him with a weapon.

       C.M. testified that on April 11, 2013, around 10:00 a.m., she and her mother were
driving down Getwell when she saw “a man beating up on a woman.” As Ms. Hunter
“pulled into the shopping center,” C.M. saw that a man with a “black hood on” was
“yanking at [] and hitting” a woman. C.M. believed she was witnessing a domestic
violence incident. As Ms. Hunter drove closer, C.M. saw that the man “was . . . trying to
get her bag . . . from her.” She was close enough to the altercation to see “something in
[the man’s] hand that he was hitting her with that was causing her to bleed.” C.M. was
unsure what type of weapon the man was using, but she saw that “he had some type of
weapon in his hand under his jacket sleeve.” She observed that the woman “had gushing
blood that was coming down the side of her face and . . . the back of her neck[.]” The
man ran and she and Ms. Hunter “follow[ed] him through the shopping center and
through a ditch down Goodman” until he came to “this house by a wooden fence[,]” at
which point they noticed a white Maxima that had also been following the man. C.M.
noticed the white Maxima because “it was driving really slow by the guy . . . that [they]
were following.” The female driver of the white Maxima was talking on her cell phone,
and C.M. believed the female driver saw her and her mother because “she tried to . . .
turn around and get away[.]” C.M. called 9-1-1 and told the dispatcher what they had
observed. The 9-1-1 dispatcher then asked them to stop following the white Maxima and
to return to the scene of the robbery. According to her April 11, 2013, statement to the
police, C.M. indicated that she would not be able to identify the man who committed the
robbery.



                                           -4-
       On cross-examination, C.M. testified that, during the robbery, she was
approximately twelve to fifteen feet away from the man. She agreed that in her statement
to the police she “said [Ms. Patterson] had a towel on the back of her neck and head and
[that C.M.] saw the blood on the towel, but couldn’t see where it was coming from.” She
explained that Ms. Patterson had “blood all over her hair” and that blood was “coming
down in her face.”

       Tiera Cobb testified that she knew the Defendant because they used to date and
that their sisters were friends. Ms. Cobb stated that she was dating the Defendant from
2012-2013 and that she worked at the Check Into Cash store on Getwell Road from
January 2012 to August or September 2012. Ms. Cobb’s duties at the Check Into Cash
included “pick[ing] up money in the morning if [she] worked the morning shift” and that,
when she went to the bank in the morning, she always picked up $3,000. After Ms. Cobb
told the Defendant about going to the bank and picking up money for the Check Into
Cash store, they decided that the Defendant would rob the employee picking up the
money and that she would be the getaway driver. Ms. Cobb stated that the plan was for
her to pick up the Defendant from his house on the morning of the robbery, drive to the
Check Into Cash, drop off the Defendant, wait behind the store until the Defendant
returned, and then leave.

        Ms. Cobb stated that on April 11, 2013, the Defendant called her around 7:00 a.m.
“to see [whether] everything [was] still going to go as planned.” Ms. Cobb informed the
Defendant that she was getting ready to leave and pick him up. Ms. Cobb testified that at
the time of the robbery, she was driving an older model white Maxima with non-tinted
windows. It was raining when she arrived at the Defendant’s house between 7:30 and
8:30 a.m. Ms. Cobb picked up the Defendant, and they “went across the street from the
location” and “waited in the parking lot of a barber shop[]” until a Check Into Cash
employee returned from the bank. She stated that the Defendant was wearing blue jeans
and “a black hoodie or a black zip[-]up jacket” with the hood up, a red shirt, and white
shoes. Ms. Cobb knew that a Check Into Cash employee routinely picked up money
from a bank every morning, but she did not know that Ms. Patterson was picking up the
money that day. After Ms. Cobb observed Ms. Patterson leave the Check Into Cash
store, she drove to the back of the Check Into Cash store and “parked at a house on the
right[-]hand side [of the street].”

       She stated that she waited for about ten minutes for the Defendant to return, but
then she “got scared” and “started driving around.” Ms. Cobb stated that she noticed that
a vehicle was following her, so she called her cousin to ask for advice. She stated that
she drove around the Check Into Cash store three times before she “kept straight on one
of the streets” and again noticed that a vehicle was following her, and the occupants of
that vehicle were “on the phone.” Ms. Cobb guessed that the occupants of the other
                                          -5-
vehicle were speaking “with the police giving them a description of [her] car.” Ms. Cobb
drove back onto Goodman, heard police sirens, and pulled into a driveway. She waited in
the driveway for two or three minutes but left when she did not see the Defendant
returning. As she was backing out of the driveway, two police patrol cars “cut [her] off”
and told her to put her phone down.

       Ms. Cobb testified that she gave a statement to the police later that day, but she did
not “own up” to her involvement because she “was scared [and] trying to cover
[her]self.” She stated that, on the same day, she identified the Defendant in a
photographic lineup and wrote on the lineup that she had dropped the Defendant off at
Walgreens and that the Defendant had asked her to “pull up over the next street at his
friend’s house for him.” Ms. Cobb stated that her written comment on the lineup was not
truthful. She also testified that the Defendant did not wear glasses during their
relationship, but she agreed that in her statement to the police, she stated that the
Defendant did wear glasses. Ms. Cobb testified that she never discussed with the
Defendant whether he would use a weapon in the robbery and that she did not see him
with a weapon before the robbery occurred. She stated that she was arrested for her
involvement in the offense and pled guilty.

        Officer Jonathan Gross testified that approximately a month after the robbery of
the Check Into Cash store, he was assigned to the Crump Station Task Force of the
Memphis Police Department. Around 12:00 p.m. that day, Officer Gross “was traveling
westbound on Chelsea Avenue and [he] was following a 2005 white Buick Rendezvous
that had a taillight that was defective.” Officer Gross conducted a traffic stop, and the
female driver informed Officer Gross that her driver’s license had been revoked. Officer
Gross placed the driver into custody, but “[his] partner couldn’t identify the passenger
later identified as [the Defendant].” Officer Gross stated that the Defendant gave him a
false Social Security number and the last name and birth date of a man named Octavious
Kelly. Officer Gross looked up outstanding warrants for the area of the traffic stop and
“located a picture of [the Defendant] and at that point [the Defendant] continued to say
that he was Octavious Kelly.” Officer Gross transported the Defendant to the police
station and while Officer Gross fingerprinted the Defendant, the Defendant made a
comment similar to “you got me.” Officer Gross then learned the Defendant’s name and
date of birth and that “he had a warrant for his arrest for aggravated robbery.” The
Defendant was placed under arrest based on that warrant. Officer Gross identified the
Defendant in open court as the passenger who told Officer Gross that his name was
Octavious Kelly.

      On cross-examination, Officer Gross stated that both he and his partner heard the
Defendant say “you got me” while he was being fingerprinted. Officer Gross stated that
he made a record of the Defendant’s arrest under the outstanding aggravated robbery
                                            -6-
warrant but agreed that he did not include the Defendant’s statement in the narrative
section of the arrest record. He also stated that he did not include the false Social
Security number that the Defendant originally gave him in the arrest record.

        After deliberations, the jury found the Defendant guilty of aggravated robbery.
Following a sentencing hearing, the trial court sentenced the Defendant, as a Range I
offender, to ten and one-half years in the Department of Correction with release
eligibility after service of eighty-five percent of the sentence. The Defendant timely
appealed the trial court’s judgments.

                                      II. Analysis

                               Prosecutorial Misconduct

      The Defendant contends that the prosecutor “vouched for the credibility of two
eyewitnesses, argued facts outside the record, argued a misleading fact, essentially
commented on the [D]efendant’s decision to not testify at trial[,] and asserted that the
defense was engaged in an intentional strategy to confuse the jurors.”

       The trial court has wide discretion in controlling the course of arguments and will
not be reversed absent an abuse of discretion. Terry v. State, 46 S.W.3d 147, 156 (Tenn.
2001). Closing argument by a prosecutor “is a valuable privilege that should not be
unduly restricted.” State v. Bane, 57 S.W.3d 411, 425 (Tenn. 2001). However,
Tennessee courts have recognized that it is improper for a prosecutor to engage in
derogatory remarks, appeal to the prejudice of the jury, misstate the evidence, or make
arguments not reasonably based on the evidence. State v. Banks, 271 S.W.3d 90, 131
(Tenn. 2008). In State v. Goltz, this court stated that “expressing a personal belief or
opinion as to the truth or falsity of the evidence or defendant’s guilt[]” and “making
statements calculated to inflame the passions or prejudices of the jury[]” are possible
areas of improper prosecutorial arguments. State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim.
App. 2003).

                               Harmless Error Analysis

        When an issue arises concerning improper prosecutorial argument, this court must
first determine the type of error, if any, that was committed so that the correct legal
standard for review can be applied and, if applicable, whether the error is harmless. As
our supreme court has stated:

      All errors are not the same, nor do they have the same effect on the judicial
      process in general or on a particular trial. Accordingly, for the purpose of
                                          -7-
       the harmless error analysis, this Court has recognized three categories of
       error—structural constitutional error, non-structural constitutional error,
       and non-constitutional error. State v. Powers, 101 S.W.3d 383, 397 (Tenn.
       2003); State v. Garrison, 40 S.W.3d 426, 433-34 (Tenn. 2000); State v.
       Harris, 989 S.W.2d 307, 314-15 (Tenn. 1999). The distinctions between
       these categories of error are more than academic because they define the
       standards that the appellate courts use to determine whether each category
       of error can be harmless.

State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008). Structural constitutional error
requires automatic reversal. Non-structural constitutional error does not require
automatic reversal but shifts the burden to the State to prove beyond a reasonable doubt
that the error is harmless. Non-constitutional error places the burden on the Defendant to
prove “that the error more probably than not affected the judgment or would result in
prejudice to the judicial process.” Id. at 372.

                   Comment on the Defendant’s Right Not to Testify

       The Defendant contends that, during closing arguments, the State improperly
commented on his exercise of his right to a jury trial and his right to not testify in the
following statements:

              Ms. Cobb knew she made a mistake and she took responsibility. She
       told you how she pled guilty in this courtroom to her participation in the
       aggravated robbery. And I submit to you that she told you exactly the same
       thing that she told the Judge when she pled guilty to her involvement in that
       aggravated robbery. Once again, this lady had no record, never been
       arrested before. And she took responsibility for what she did even though
       she didn’t get out [of] the car and cut Ms. Patterson.

              She didn’t get out [of] the car and struggle with Ms. Patterson. She
       didn’t take the $3,000 from Ms. Patterson’s purse. She didn’t push Ms.
       Patterson down. But she took responsibility for her part in that aggravated
       robbery and that’s exactly what the Defendant should do[,] take
       responsibility.

The Defendant objected after the conclusion of this statement on the ground that the
statement referred to the Defendant’s right to not testify. The State argues that under the
test set out by our supreme court in State v. Jackson, 444 S.W.3d 554, 587-88 (Tenn.
2014), “[n]either of the statements objected to in this case demonstrate a ‘manifest intent’
to comment on the [D]efendant’s right not to testify or would necessarily have been taken
                                           -8-
to be such a comment.” The State further argues that the comment was harmless beyond
a reasonable doubt because the comment was indirect and the evidence against the
Defendant was overwhelming.

       Both the United States Constitution and the Tennessee Constitution “guarantee
criminal defendants the right to remain silent and the right not to testify at trial.”
Jackson, 444 S.W.3d 585. The Tennessee Supreme Court has previously cautioned that
“[t]he subject of a defendant’s right not to testify should be considered off limits to any
conscientious prosecutor.” Id. at 586 (quoting State v. Hale, 672 S.W.2d 201, 203 (Tenn.
1984)) (internal quotation marks omitted). In addition to direct comments on a
defendant’s decision not to testify, “indirect references on the failure to testify also can
violate the Fifth Amendment privilege.” Id. at 587 (quoting Byrd v. Collins, 209 F.3d
486, 533 (6th Cir. 2000)) (internal quotation marks omitted).

        In Jackson, our supreme court overturned a second-degree murder conviction
where the prosecutor, during closing rebuttal argument, “walked across the court room,
stood in front of [the d]efendant, gestured toward her, and demanded in a loud voice,
‘Just tell us where you were! That’s all we are asking, Noura!’” Id. at 585. In its ruling,
the court adopted a two-part test for determining whether a prosecutor’s remark amounts
to an improper comment on a defendant’s constitutional right to remain silent and not
testify. Id. at 587-88. The two-part test analyzes: “(1) whether the prosecutor’s manifest
intent was to comment on the defendant’s right not to testify; or (2) whether the
prosecutor’s remark was of such a character that the jury would necessarily have taken it
to be a comment on the defendant’s failure to testify.” Id. at 588. This court reviews a
defendant’s claim of impermissible prosecutorial comment on the right not to testify de
novo. Id.

        Here, during the State’s first closing argument, the prosecutor discussed how Ms.
Cobb “knew she made a mistake and she took responsibility. She told you how she pled
guilty in this courtroom to her participation in the aggravated robbery.” The prosecutor
also stated that Ms. Cobb “took responsibility for her part in that aggravated robbery and
that’s exactly what the Defendant should do[,] take responsibility.”

       Prior to the disputed comment, the State had discussed the testimony of Ms.
Patterson, Officer Bowens, Ms. Hunter, C.M., and Ms. Cobb. In discussing Ms. Cobb’s
testimony, the State outlined her involvement in the offense and noted that she admitted
to her involvement when she pled guilty. The State also emphasized that Ms. Cobb’s
testimony at her guilty plea submission hearing was the same as her trial testimony.
Because the State’s comment was in the context of arguing to the jury that Ms. Cobb was
a credible witness, we conclude that it was not the manifest intent of the State to
comment on the Defendant’s right to not testify.
                                           -9-
        However, when considered in the context of the State’s closing argument up to the
point of the Defendant’s objection, a juror would have necessarily taken the comment to
mean that Ms. Cobb took responsibility by pleading guilty and by testifying at trial, and
that the Defendant should take responsibility like Ms. Cobb did. While this is an indirect
comment, the comment clearly creates an inference that the Defendant should have taken
responsibility for his actions by testifying at trial. We conclude that this comment was an
improper reference to the Defendant’s right to not testify.

        We must next consider whether the State has established that this non-structural
constitutional error was harmless beyond a reasonable doubt. See Jackson, 444 S.W.3d
at 590-91 (applying the constitutional harmless error doctrine from Chapman v.
California, 386 U.S. 18, 24 (1967), to improper prosecutorial comments on the
Defendant’s right to remain silent). When assessing whether the State has met this
burden, courts should consider “the nature and extensiveness of the prosecutor’s
argument, the curative instructions given, if any, and the strength of the evidence of
guilt.” Id.

        As the State notes in its brief, after the Defendant objected to the comment, the
trial court ruled that the comment did not refer to the Defendant’s failure to testify at trial,
but the trial court offered to issue a curative instruction to the jury. It is unclear from the
transcript how the Defendant responded to the trial court’s offer,2 but the trial court did
not issue any curative instruction. Additionally, the prosecutor only commented that the
Defendant should “take responsibility” once during closing arguments, so the improper
commentary was not “extensive.” Further, the nature of the commentary shows that the
reference to the Defendant’s right to not testify was indirect. Lastly, we agree with the
State that the evidence against the Defendant was substantial. The only issue at trial was
whether the Defendant was armed with a weapon when he robbed Ms. Patterson; during
closing arguments, defense counsel argued that the Defendant was guilty of simple
robbery, not aggravated robbery. Ms. Patterson testified that the Defendant had a weapon
in his hand while he attacked and robbed her and that she was cut on her hand and head
during the offense. C.M. stated that she was close enough to the altercation to see
“something in [the man’s] hand that he was hitting [Ms. Patterson] with that was causing
her to bleed.” With two witnesses testifying to the presence of a weapon, the evidence
against the Defendant was strong. Based on these considerations, we conclude that the
State established that the improper comment was harmless beyond a reasonable doubt.
The Defendant is not entitled to relief on this ground.


       2
           The transcript states that the response from defense counsel was “indiscernible.”

                                                   - 10 -
                          Comments on Defense “Trickery”

       The Defendant contends that the State, in its closing arguments, introduced a
theme that the Defendant was attempting to “trick” the jurors, and he asserts that these
statements “denigrate the integrity of the defense by insinuating that counsel would
knowingly argue something untruthful to the jury.” The Defendant argues that the State’s
“trickery” theme was calculated to inflame the passions or prejudices of the jury. See
State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App. 2003).

     The Defendant asserts that the following statements during the State’s closing
arguments involved the trickery theme, numbered in the order that they occurred:

             (1) Now Ladies and Gentlemen, I don’t want you to be confused by
      the Defendant’s appearance during the trial because it’s not real. It’s a
      front. It’s a fake. He’s trying to fool you. This is not the real [Defendant]
      that was in front of Check [I]nto Cash on April 11, 2013. This is not the
      same man who attacked Ashley Patterson, pointed a box cutter in her face,
      cut her, pushed her down. Don’t be fooled.

            (2) The Defense wants you to be fooled, but don’t be. The State has
      proven every element of aggravated robbery beyond a reasonable doubt.

            (3) Next, Ladies and Gentlemen, trying to pretend you got the wrong
      person.

           (4) Last trick from the Defendant, Ladies and Gentlemen, well, it
      was me. I did rob her. I did run off with the $3,000, but I didn’t have [a]
      weapon.

           (5) But he wants you to be fooled into thinking that he didn’t have a
      weapon because she said knife rather than box cutter.

             (6) They want you to make something up that you didn’t hear when
      the evidence clearly shows that she was cut with a weapon. It’s smoke
      screens. They want you to be fooled and be confused, but the evidence was
      clear beyond a reasonable doubt. He is guilty of aggravated robbery. It’s
      obvious.

      The Defendant objected after the State’s third comment above, and the following
exchange occurred:

                                         - 11 -
             STATE: Next, Ladies and Gentlemen, trying to pretend you got the
      wrong person. You heard the witnesses, Ms. Hunter[,] on the stand. You
      heard Ms. Patterson on the stand. What did the Defendant have on his face
      during that hearing in General Sessions? A pair of glasses.

                DEFENDANT: Your Honor, may we approach?

                TRIAL COURT: Yes, sir.

             DEFENDANT: There is absolutely no evidence to say that he was
      presenting anything during the preliminary hearing.

             TRIAL COURT: All right. Now, there was testimony from the
      victim that she didn’t recognize him because he was wearing glasses.

                DEFENDANT: Which is why that was improper –

              TRIAL COURT: There was also testimony that he doesn’t usually
      wear glasses from the girl. So she has a right to draw a reasonable
      inference that he wore glasses and shaved off his goatee to fool the victim.
      She has a right to argue that. Now that’s circumstantial evidence, but . . . I
      find it was raised in the proof.

       The Defendant attempted to object after the State’s comment of “Last trick from
the Defendant, Ladies and Gentlemen, well, it was me. I did rob her. I did run off with
the $3,000, but I didn’t have [a] weapon[,]” but the trial court did not entertain the
objection.3 While the Defendant did not object after the remaining statements, we will
consider the Defendant’s initial objection to be a continuous objection to the State’s
“theme” that the Defendant was attempting to trick the jury.

       Here, rather than referring to defense counsel or trial strategy, the prosecutor’s
comments refer to the Defendant’s actions of giving the police a false name, birth date,
and social security number when he was arrested and the Defendant’s action of shaving
his facial hair and wearing glasses at the preliminary hearing. The State’s comment of
“[t]hey want you to make something up that you didn’t hear when the evidence clearly
shows that she was cut with a weapon[]” and “[t]hey want you to be fooled and be
confused, but the evidence was clear beyond a reasonable doubt[]” could be taken to refer
to the Defendant and his trial counsel based on the use of “they.” However, it is within
the purview of the State to argue during closing arguments that it has met its evidentiary

      3
          Defense counsel asked “May we approach again, Your Honor?” The trial court stated “No, sir.”
                                                - 12 -
burden, and we conclude that these statements comment on the State’s burden of proof
rather than the Defendant’s trial counsel or trial strategy. Thus, the State’s comments on
how the Defendant was attempting to “fool” or “trick” the jury were not improper. The
Defendant is not entitled to relief on this ground.

                                       Plain Error Analysis

       The Defendant argues that the prosecutor improperly vouched for the truthfulness
of the State’s witnesses during closing arguments when the prosecutor commented:

        Now Ladies and Gentlemen, I submit to you that [C.M.] and Ms. Hunter
        were telling you the truth about what they witnessed on that morning of
        April 11, 2013.

        [T]he evidence was clear beyond a reasonable doubt. [The Defendant] is
        guilty of aggravated robbery. It’s obvious.

Additionally, the Defendant argues that the prosecutor “vouch[ed] for [the Defendant]’s
guilt” when she stated that Ms. Cobb had taken responsibility for her participation in the
offense and “that’s exactly what the Defendant should do[,] take responsibility[]” and
when it stated that the Defendant was “trying to get off for a crime that he knows he
committed.”

     Finally, the Defendant argues that the following portion of the State’s closing
argument was intended to inflame the passions or prejudices of the jury:

               How many times does Ms. Patterson have to relive this traumatic
        event before she gets justice? How many times? And how many times
        must Ms. Patterson point to this man and identify this Defendant as the man
        who attacked her with a deadly weapon, with a box cutter in her face.
        Cutting her. Pushing her down. Taking that money from her possession.
        How many times before somebody will listen to her.

       We note that the Defendant did not object to the prosecutor’s comments
referenced above.4 The State argues that because the Defendant failed to object to the
prosecutor’s statements during trial, any error is waived absent plain error.



        4
           The Defendant objected after the State’s comment that the Defendant should “take
responsibility;” however, the Defendant objected that the comment improperly referred to his right to not
testify and did not object on the grounds that the comment improperly vouched for his guilt.
                                                 - 13 -
       Rule 36(a) of the Tennessee Rules of Appellate Procedure states that “[n]othing in
this rule shall be construed as requiring relief be granted to a party responsible for an
error or who failed to take whatever action was reasonably available to prevent or nullify
the harmful effect of an error.” The failure to make a contemporaneous objection
constitutes waiver of an issue on appeal. State v. Gilley, 297 S.W.3d 739, 762 (Tenn.
Crim. App. 2008). However, “[w]hen necessary to do substantial justice,” this court may
“consider an error that has affected the substantial rights of a party” even if the issue was
waived. Tenn. R. App. P. 36(b). Such issues are reviewed under plain error analysis.
State v. Hatcher, 310 S.W.3d 788, 808 (Tenn. 2010).

        Plain error relief is “limited to errors that had an unfair prejudicial impact which
undermined the fundamental fairness of the trial.” State v. Adkisson, 899 S.W.2d 626,
642 (Tenn. Crim. App. 1994). In order to be granted relief under plain error relief, five
criteria must be met: (1) the record must clearly establish what occurred in the trial court;
(2) a clear and unequivocal rule of law must have been breached; (3) a substantial right of
the accused must have been adversely affected; (4) the accused did not waive the issue
for tactical reasons; and (5) consideration of the error is “necessary to do substantial
justice.” Id. at 640-41; see also State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000)
(Tennessee Supreme Court formally adopting the Adkisson standard for plain error
relief). When it is clear from the record that at least one of the factors cannot be
established, this court need not consider the remaining factors. Smith, 24 S.W.3d at 283.
The defendant bears the burden of persuasion to show that he is entitled to plain error
relief. State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007).


        (1) The record must clearly establish what occurred in the trial court

       The record in this case contains a transcript of the testimony at trial, the State’s
and the Defendant’s closing arguments, each party’s objections to those arguments, and
the exhibits admitted into evidence. For the purposes of our analysis, the record clearly
shows what occurred at trial.

          (2) A clear and unequivocal rule of law must have been breached

       As noted previously in this opinion, “expressing a personal belief or opinion as to
the truth or falsity of the evidence or defendant’s guilt[]” and “making statements
calculated to inflame the passions or prejudices of the jury[]” are possible areas of
improper prosecutorial arguments. Goltz, 111 S.W.3d at 6. “In determining whether
statements made in closing argument constitute reversible error, it is necessary to
determine whether the statements were improper and, if so, whether the impropriety
affected the verdict.” State v. Pulliam, 950 S.W.2d 360, 367 (Tenn. Crim. App. 1996).

                                           - 14 -
       The Defendant argues that the prosecutor vouched for the credibility of Ms.
Hunter and C.M. when the prosecutor stated, “I submit to you that [C.M.] and Ms. Hunter
were telling you the truth about what they witnessed on that morning of April 11, 2013.”
Immediately after this statement, the prosecutor stated the following: “And I submit to
you that their testimony corroborates what Ms. Patterson told you and what Ms. Tiera
Cobb told you. And none of these ladies knew each other at the time of the event. None
of them.” When the prosecutor’s comment is viewed in light of the surrounding
argument, it is clear that the State was arguing to the jury that its witnesses were credible
and that it was not “vouching” for Ms. Hunter, C.M., or Ms. Cobb based on the
prosecutor’s personal knowledge of the witnesses. Additionally, the prosecutor’s
comment regarding the witnesses’ credibility was tied to the evidence in the case; the
State argued that the witnesses were credible because each person’s statement
corroborated the statements of the other witnesses, yet the witnesses did not know each
other before the offense, with the exception of Ms. Hunter and C.M.. When viewed in
context, we conclude that this statement was not improper vouching. We also conclude
that the prosecutor’s comment that “the evidence was clear beyond a reasonable doubt.
[The Defendant] is guilty of aggravated robbery. It’s obvious[]” was not improper
vouching. The comment relates to the prosecutor’s argument to the jury that the State
had satisfied its burden of proof.

       Additionally, the Defendant argues that the State vouched for the guilt of the
Defendant when it argued that Ms. Cobb had taken responsibility for her participation in
the offense and “that’s exactly what the Defendant should do[,] take responsibility[,]” and
when it stated that the Defendant was “trying to get off for a crime that he knows he
committed.” The first comment, that the Defendant should “take responsibility” was
stated after the prosecutor summarized Ms. Cobb’s testimony. The second comment, that
the Defendant knew he had committed a crime, was stated four times in one portion of
the prosecutor’s argument. However, with both of these alleged errors, the prosecutor did
not imply that she had any special knowledge of the Defendant’s guilt based on her
position as the prosecuting authority. We conclude that these comments were part of the
State’s argument regarding the Defendant’s intent to commit the crime and were not
improper vouching.

       The Defendant also argues that the prosecutor made a comment that was
“calculated to inflame the passions or prejudices of the jury” when the prosecutor asked,
in part, “How many times does Ms. Patterson have to relive this traumatic event before
she gets justice?” When the contested statement is viewed in the context of the State’s
closing argument, however, there is no evidence that the statement was “calculated” to
inflame the passions of the jury. The prosecutor made the comment after summarizing
Ms. Patterson’s testimony at trial, and after the comment, the prosecutor argued that Ms.
                                           - 15 -
Patterson’s photographic identification and her identification of the Defendant at trial
were credible and that her credibility was not reduced by her inability to identify the
Defendant at the preliminary hearing. The State’s comment refers to the number of times
Ms. Patterson had previously attempted to identify the Defendant; while the statement is
certainly argumentative, it does not rise to the level of being a calculated attempt to
inflame the passions or prejudices of the jury.

       We conclude that the State’s comments during closing argument addressed in this
section did not breach a clear and unequivocal rule of law. As the Defendant cannot
establish this Adkisson factor, we decline to address the remaining factors. See Smith, 24
S.W.3d at 283. The Defendant is not entitled to plain error relief.

                                Sufficiency of the Evidence

        The Defendant additionally argues that there was insufficient evidence admitted at
trial to establish beyond a reasonable doubt that the Defendant employed a deadly
weapon during the commission of the robbery.

        Our standard of review for a sufficiency of the evidence challenge is “whether,
after viewing the evidence in the light most favorable to the prosecution, 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) (emphasis in original); see also Tenn. R.
App. P. 13(e). Questions of fact, the credibility of witnesses, and weight of the evidence
are resolved by the fact finder. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This
court will not reweigh the evidence. Id. Our standard of review “is the same whether the
conviction is based upon direct or circumstantial evidence.” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)) (internal quotation marks omitted).

       A guilty verdict removes the presumption of innocence, replacing it with a
presumption of guilt. Bland, 958 S.W.2d at 659; State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The defendant bears the burden of proving why the evidence was
insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle, 639 S.W.2d at
914. On appeal, the “State must be afforded the strongest legitimate view of the evidence
and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221
S.W.3d 514, 521 (Tenn. 2007).

       A defendant commits aggravated robbery when the robbery 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[.]” Tenn. Code Ann. § 39-13-402(a)(1)
(2013). Robbery is defined as “the intentional or knowing theft of property from the
                                           - 16 -
person of another by violence or putting the person in fear.” Tenn. Code Ann. § 39-13-
401(a) (2013).

       When viewed in the light most favorable to the State, the evidence in the record
shows that the victim, Ms. Patterson, testified that when she returned to the Check Into
Cash store from withdrawing the store’s daily operating funds, she “stepped out of [her]
truck and locked [her] truck, walked to the back of [her] truck and [the Defendant]
popped out from the truck that was beside [her] and pointed the box blade in [her] face
and said [‘]give me the money.[’]” Ms. Patterson stated that she was cut on her finger
and on her head during the robbery. Ms. Patterson admitted that she initially told the
police that the Defendant cut her with a knife rather than a box cutter, but she maintained
that she consistently told the police that the Defendant was armed with a weapon during
the offense.

        C.M. stated that she was close enough to the altercation to see “something in [the
man’s] hand that he was hitting her with that was causing her to bleed.” C.M. was unsure
of exactly what type of weapon the man was using, but she saw that “he had some type of
weapon in his hand under his jacket sleeve.” While the Defendant argued during his
closing argument that he was not armed during the offense and therefore guilty of only
simple robbery, it was within the province of the jury to accredit the testimony of Ms.
Patterson and C.M. and to find the Defendant guilty of aggravated robbery. There is
sufficient evidence in the record for a rational juror to have found the Defendant guilty of
aggravated robbery beyond a reasonable doubt. The Defendant is not entitled to relief on
this ground.

                                     III. Conclusion

     After a thorough review of the record and the applicable law, we affirm the
judgment of the trial court.


                                              ____________________________________
                                              ROBERT L. HOLLOWAY JR., JUDGE




                                           - 17 -
