        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs October 2, 2012

                  STATE OF TENNESSEE v. KEARN WESTON

                  Appeal from the Criminal Court for Shelby County
                    No. 11-02875     James C. Beasley, Jr., Judge


               No. W2012-00255-CCA-R3-CD - Filed November 30, 2012


A Shelby County Grand Jury indicted appellant, Kearn Weston, for robbery, a Class C
felony. A jury convicted him as indicted, and the trial court sentenced him as a persistent
offender to fourteen years in the Tennessee Department of Correction. Appellant challenges
the sufficiency of the convicting evidence on appeal. After reviewing the record, the parties’
briefs, and applicable law, we affirm the judgment of the trial court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which J AMES C URWOOD W ITT, J R.,
and J EFFREY S. B IVINS, JJ., joined.

Stephen C. Bush, District Public Defender; Harry E. Sayle III and Lawrence Russell White,
Assistant District Public Defenders, Memphis, Tennessee, for the appellant, Kearn Weston.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Amy
P. Weirich, District Attorney General; and Kate Edmands, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                          OPINION

                                            I. Facts

       This case involved the alleged robbery of the victim when he stopped at a Memphis,
Tennessee service station to obtain gasoline for his vehicle. At the October 6, 2011 jury trial,
the parties presented the following evidence:

       James Black, the victim in this case, testified that on September 15, 2010, between
5:45 p.m. and 6:00 p.m., he stopped at the Exxon station at 3474 Elvis Presley Boulevard to
purchase gasoline for his car. He recalled that it was still daylight when he exited his vehicle
at the gas pump, with his gas card in his hand, to begin the fueling process. At that moment,
someone hit him from behind on the upper part of his back and shoulder. The victim said
he fell onto a steel bolt-like cap covering the pipe to the underground gas tank, breaking a
rib. He remembered rolling over and seeing a man, whom he identified as appellant,
standing over him saying, “Give me that money, give me that money.” The victim, unaware
that his wallet had fallen out of his pocket, advised appellant that he did not have any money.
Appellant started to turn away and leave until he noticed the victim’s wallet lying on the
ground. The victim testified that appellant then “snatched” his wallet and “took off running.”
The victim said that he saw appellant from about four or five feet away when he rolled on
the ground after appellant attacked him, and he identified appellant from a photograph lineup
at the police station.

        On cross-examination, the victim testified that he was wearing glasses at the time of
the attack, but he could not remember whether they came off when appellant knocked him
to the ground. The victim admitted that he did not see the person who hit him. When he
rolled over, he only saw the person for a matter of seconds, and it was two months later when
he identified appellant in the photograph lineup.

       Marvin Jefferson, who aided the victim after the attack, testified that he was at the
Exxon station the evening of this incident and witnessed the attack on the victim. Mr.
Jefferson identified appellant as the victim’s attacker in a photograph lineup and in the
courtroom. He said he was approaching the victim as appellant started to run away. Mr.
Jefferson stated, “I ran and jumped in my truck[,] . . . took off behind him[,] and he went
eastbound on Winchester.” Mr. Jefferson followed appellant for about a block but lost sight
of him when appellant entered a path between a hotel and an apartment building.

        On cross-examination, Mr. Jefferson testified that he and Kesha Hamilton were in the
parking lot at the Exxon station when he observed the attack and robbery of the victim. He
recalled hearing the attacker say, “[G]ive me that money,” and then seeing the victim
“tackled” and falling on his back. After the attack, Mr. Jefferson saw appellant “bent in a
squat position” over the victim and heard appellant repeatedly say, “Give me that money.”
Mr. Jefferson testified that the incident happened really fast. When he said, “[H]ey,” and
approached the scene, appellant “got up and took off.” He further testified that he got into
his truck, followed appellant, and noticed appellant had the victim’s wallet in his hand as he
was running. Mr. Jefferson admitted he was wearing glasses at the time because he had a
cataract in his right eye.

       On redirect examination, upon being asked if he had any doubt that on September 15,
2010, he saw appellant attacking the victim, Mr. Jefferson replied, “No, I have no doubt in

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my mind.” He further replied that he had no doubt when the police showed him the
photograph lineup two months later and that he had no doubt that day in court.

       Kesha Hamilton testified that she was at the Exxon station on September 15, 2010,
with Mr. Jefferson and witnessed the incident. Ms. Hamilton stated that she and Mr.
Jefferson were talking when a “commotion” diverted their attention to “what looked like an
altercation.” She observed a person fall down. She also observed the other person pick up
a wallet and run across the street. In court, she identified appellant as the perpetrator.

        On cross-examination, Ms. Hamilton stated that she was alerted to “loud talking” from
other parties in the parking lot and turned to see the victim already on the ground. She said
the “other guy was kind of at his feet[,] but he was standing.” She testified that Mr. Jefferson
yelled, “[H]ey,” started walking toward appellant, and that is when appellant “ran off.” Mr.
Jefferson then jumped in his vehicle and chased appellant across the street.

        Elaine Tyler, a former employee of the Exxon station on Elvis Presley Boulevard,
testified that she was working on September 15, 2010, and was familiar with appellant
because he was a regular customer who would occasionally ask about employment. Ms.
Tyler stated that on this day, appellant had been in the store three or four times asking for
another sales associate who was not working. She observed appellant in the parking lot
“going from car to car . . . soliciting money or whatever.” Ms. Tyler testified that appellant
came back into the store, and she advised him he would have to leave the premises or she
was going to call the police. She stated that appellant called her a name and told her to call
the police. At this point, Ms. Tyler called the police and watched appellant from the window
when he walked up behind the victim and hit him from behind. She stated that she went out
to the victim and again called the police from the victim’s cellular telephone. Appellant fled
the scene on foot, out of her view. Ms. Tyler testified that the police showed her a
photograph lineup, and she identified appellant as the assailant.

       Tony Bobo, the manager of the Exxon station, testified that Elaine Tyler called him
on the evening of this incident and advised him of the robbery that had occurred. He viewed
the exterior surveillance video at the gas station and identified appellant from the video. Mr.
Bobo testified that on November 19, 2010, he called the police and spoke with Sergeant
Timothy Foster of the Memphis Police Department. He advised Sergeant Foster that the
person who robbed the victim had been in the store and was outside waiting at the bus stop.
By the time the officers arrived, appellant was already on the bus, which had driven away.
Mr. Bobo gave the officers the bus number and the direction in which it was headed.

        On cross-examination, Mr. Bobo admitted that he was not at the gas station the day
of the incident and did not witness the attack, but after viewing the surveillance video and

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speaking with Ms. Tyler, he remembered appellant as a regular customer. Mr. Bobo recalled
speaking to the police about the surveillance video the day after the robbery but could not
remember whether the police watched it or whether he gave them a copy. He stated they
were aware of it.

       Memphis Police Officer Quintsontro Irby was on duty November 19, 2010, when he
received a call from the dispatcher informing him that the suspect in this incident was
boarding a city bus. The dispatcher gave him the bus number and location of the bus.
Officer Irby stopped the bus and arrested the suspect matching the given description. Officer
Irby identified appellant as the person he arrested.

        Appellant presented the testimony of Sergeant Timothy Foster in his defense.
Sergeant Foster testified that he was assigned to the robbery unit in September 2010 and was
the case officer for this incident. He recalled going to the Exxon station to ask about a
surveillance video. Another officer obtained the video later, but the video had since been
misplaced and was unavailable. Sergeant Foster said he documented the conversations and
events that took place in his supplemental report to accurately testify. When questioned
about his documentation regarding Ms. Hamilton’s observation point during the robbery, he
stated that Ms. Hamilton informed him she witnessed the incident from across the street at
the First Tennessee Bank parking lot.

       On cross-examination, Sergeant Foster admitted his desk work environment is chaotic
at times, and it was possible for him to mistype or misstate what somebody told him in his
report. He testified that the police searched extensively for the surveillance video.

       After hearing the evidence, the jury convicted appellant as charged. The trial court
sentenced appellant as a persistent offender to fourteen years in the Tennessee Department
of Correction.

                                               II. Analysis

       On appeal, appellant argues that the evidence was insufficient to convict him.
Specifically, he contends that the evidence “was not sufficient to establish beyond a
reasonable doubt” that he took the victim’s wallet by force1 and that “the testimony of
witnesses [was] rife with inconsistencies [that] raise reasonable doubt” that appellant was the
victim’s attacker. The State responds that the evidence was sufficient to support appellant’s
conviction. We agree with the State.


        1
         Appellant was indicted for taking the victim’s wallet by violence or putting the victim in fear, and
the jury was properly charged.

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       The standard for appellate review of a claim challenging the sufficiency of the State’s
evidence 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) (citing Johnson
v. Louisiana, 406 U.S. 356, 362 (1972)); see Tenn. R. App. P. 13(e); State v. Davis, 354
S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a claim of insufficient evidence, appellant
must demonstrate that no reasonable trier of fact could have found the essential elements of
the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319. This standard of
review is identical whether the conviction is predicated on direct or circumstantial evidence,
or a combination of both. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v.
Brown, 551 S.W.2d 329, 331 (Tenn. 1977).

        On appellate review, “‘we afford the prosecution the strongest legitimate view of the
evidence as well as all reasonable and legitimate inferences which may be drawn
therefrom.’” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857
(Tenn. 2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of
witnesses and the weight and value to be given the evidence, as well as all factual disputes
raised by the evidence, are resolved by the jury as trier of fact. State v. Bland, 958 S.W.2d
651, 659 (Tenn. 1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). This court
presumes that the jury has afforded the State all reasonable inferences from the evidence and
resolved all conflicts in the testimony in favor of the State; as such, we will not substitute our
own inferences drawn from the evidence for those drawn by the jury, nor will we re-weigh
or re-evaluate the evidence. Dorantes, 331 S.W.3d at 379; Cabbage, 571 S.W.2d at 835; see
State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984). Because a jury conviction removes
the presumption of innocence that appellant enjoyed at trial and replaces it with one of guilt
at the appellate level, the burden of proof shifts from the State to the convicted appellant,
who must demonstrate to this court that the evidence is insufficient to support the jury’s
findings. Davis, 354 S.W.3d at 729 (citing State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).

        Robbery is “the intentional or knowing theft of property from the person of another
by violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401(a) (2010). “The
use of violence or fear must precede or be contemporaneous with the taking of property from
the person to constitute the offense of robbery.” State v. Owens, 20 S.W.3d 634, 641 (Tenn.
2000). The relevant factor in determining if a robbery occurred is “the temporal proximity
between the taking of property and the use of violence or fear.” State v. Swift, 308 S.W.3d
827, 828 (Tenn. 2010).

      Appellant claims that he “had begun to walk away after knocking [the victim] down
and being told that [the victim] had no money, essentially abandoning the robbery.” He

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further claims that he simply “noticed the wallet on the ground, . . . picked it up[,] and ran.”
However, the evidence presented at trial belies appellant’s claims. Viewed in the light most
favorable to the State, the evidence shows that appellant hit the victim from behind, knocking
him to the ground, which caused the victim to fall and break a rib. Appellant repeatedly told
the victim, “[G]ive me that money.” Appellant, believing that the victim did not have any
money, started to leave. However, before leaving the scene, appellant noticed that the
victim’s wallet had fallen out of his pocket. Appellant grabbed the victim’s wallet, and ran.
The evidence is clear that appellant committed the theft of the victim’s wallet by violence
that occurred nearly immediately before the taking of the wallet. While appellant may not
have taken the wallet in the original manner in which he intended, it is clear that appellant
intended to use violence against the victim in order to take the victim’s money. Appellant
succeeded in committing the theft of the victim’s wallet as a result of his violence toward the
victim.

        Appellant further posits that the evidence was insufficient because of inconsistencies
in the witnesses’ testimonies. In his brief, appellant does not identify any inconsistencies in
the testimony nor does he explain how any inconsistencies would have prevented a
reasonable trier of fact from finding the essential elements of the offense beyond a reasonable
doubt. Moreover, the jury is the finder of fact in a jury trial and resolves all questions
involving the credibility of witnesses, the weight and value to be given the evidence, and
factual disputes raised by the evidence. Bland, 958 S.W.2d at 659; Pruett, 788 S.W.2d at
561. Several eyewitnesses identified appellant as the person who knocked the victim to the
ground, stole his wallet, and fled. The jury heard any alleged inconsistencies, and by their
guilty verdict, they obviously resolved all conflicts in the testimony in favor of the State.
Cabbage, 571 S.W.2d at 835. Appellant’s arguments are without merit, and he is not entitled
to relief.

                                       CONCLUSION

       Based on the foregoing, we affirm the judgment of the trial court.


                                                    _________________________________
                                                    ROGER A. PAGE, JUDGE




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