         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs October 3, 2000

               STATE OF TENNESSEE v. MICHAEL S. JACKSON

                    Direct Appeal from the Criminal Court for Shelby County
                           No. 97-03136   Joseph B. Brown, Jr., Judge



                    No. W1999-00358-CCA-R3-CD - Filed November 9, 2000


The defendant was convicted of aggravated robbery and sentenced to twelve years confinement as
a standard, Range I offender. On appeal, the defendant argues that the evidence was insufficient to
support the jury’s verdict, and that the trial court erred in its application of sentencing enhancement
factors. Based upon our review, we affirm the judgment of the trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which DAVID G. HAYES and JERRY L.
SMITH, J.J., joined.

A C Wharton, Jr., Shelby County Public Defender; Tony N. Brayton, Assistant Public Defender (on
appeal); Amy Mayne, Assistant Public Defender (at trial); and Robert C. Felkner, Assistant Public
Defender (at trial), for the appellant, Michael S. Jackson.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;
William L. Gibbons, District Attorney General; Patience R. Branham, Assistant District Attorney
General; and Scott D. Gordon, Assistant District Attorney General, for the appellee, State of
Tennessee.

                                             OPINION

        The defendant was convicted by a jury of aggravated robbery, a Class B felony. Finding
three enhancement factors applicable, and no relevant mitigating factors, the trial court sentenced
the defendant to twelve years confinement as a standard, Range I offender. Following the denial of
his motion for a new trial, the defendant filed a timely appeal to this court, presenting the following
issues for review:

               I.       Whether the evidence was sufficient to support the jury’s
                        verdict; and
               II.     Whether the trial court erred in applying enhancement factors
                       to increase the defendant’s sentence from the presumptive
                       minimum sentence of eight years to the maximum sentence of
                       twelve years.

       After reviewing the record, we conclude that the jury’s verdict was supported by the
evidence, and that the trial court committed no error in sentencing. Accordingly, we affirm the
judgment of conviction and the sentencing imposed.

                                               FACTS

         The facts in this case are undisputed. On the evening of October 27, 1996, the defendant,
seventeen-year-old Michael S. Jackson, along with an accomplice, robbed Mrs. Irma McNeary at
gunpoint at her home in Memphis, Tennessee. At approximately 7:00 p.m., the defendant, carrying
a jacket, walked up to the victim’s front door and rang the bell. The victim and her mother were
home alone. When the victim answered the door, the defendant told her that he was returning a
jacket that her son had left in his car. Recognizing the defendant as the son of a woman who
attended her church, the victim opened the door. At that point, the defendant showed the victim a
pistol that he held under the jacket, and told her to “get back in the house.” The victim retreated into
the house, followed by the defendant. Once inside, the defendant motioned for his accomplice,
Mario Ward, waiting in a car parked outside on the street, to join him.

        When both men were inside the house, the defendant demanded a set of gold tire rims which
he claimed that the victim’s son had taken from him. After the defendant threatened to shoot the
women if they did not comply, the victim led the men to the backyard, where she unlocked the shed
in which the rims were stored. Handing the gun to Ward to hold on the victim, the defendant
retrieved the rims from the shed and placed them in the trunk of Ward’s car. The men then drove
away.

        The defendant was arrested on October 30, 1996, and taken to the Shelby County Juvenile
Court. On November 1, 1996, the defendant confessed to the robbery in an interview conducted by
Sergeant Gerold Blum of the Memphis Police Department. The defendant said that during the
commission of the robbery, the victim called him by name and told him that she planned to
telephone his mother after he left. He stated that “when she called my name I knew she knew me
so I just said ‘sorry’, but it was already to [sic] late to stop.”

        The defendant later filed a motion to suppress this confession. At the hearing on the
defendant’s motion, Sergeant Blum testified that the defendant’s mother was present during his
interview with the defendant, that he read and explained the defendant’s rights to the defendant and
his mother before the defendant made his statement, that the defendant indicated he understood his
rights but nonetheless wished to make a statement, that the defendant read and initialed a preprinted
statement form containing a waiver of rights, and that neither the defendant nor his mother expressed
any desire for an attorney.

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        The defendant testified that he had a ninth grade education, and said that he and his mother
could read. He had not been handcuffed during the approximately hour long interview. He had not
asked for a lawyer, although he had told his mother that it would be best if they had one. When
asked if he had been pressured, coerced, or threatened to make his statement, the defendant
answered: “I wasn’t threatened at all. I do remember I wasn’t threatened. I just know I was sad.”
The defendant indicated that this sadness was caused by his mother’s tears:

               I felt like I was under pressure by my mother. She was crying and
               stuff. I didn’t–I didn’t know, because when I first came in, she was
               crying. I didn’t know what he had told her or what was on her mind.
               So I was just–I really–I really just can’t say. I don’t–I know I was
               under a lot of pressure. I just. . . .

        At the conclusion of the hearing, the trial court denied the defendant’s motion to suppress,
finding that the defendant’s sole reason for claiming that his confession was involuntary, his feeling
of sadness because his mother was crying, was “a personal problem,” and insufficient to show that
his confession had not been freely, voluntarily, and knowingly made.

          The defendant was subsequently tried as an adult. The victim and Sergeant Blum were
the only witnesses for the State at trial. The victim said that she had recognized the defendant
because she had known him “from a small child growing up.” She testified that, after the defendant
had forced his way into her home with the pistol and beckoned his accomplice inside, he began
“waving the gun around” and said that he would shoot her and her mother if he did not get what he
wanted. She said that “after he had the pistol and he was pointing the pistol, I rather for them to took
the rims, tires, or whatever. And so I gave them to him and he left.”

         Sergeant Blum testified that the defendant’s mother was present during his entire interview
with the defendant, which was conducted in an interview room at Juvenile Court, and took exactly
forty-two minutes. He stated that he read the defendant his rights before he began the interview, and
that the defendant indicated he understood his rights and wished to make a statement. Neither the
defendant nor his mother, at any time either prior to or during the interview, requested an attorney.
Blum said that the defendant’s statement consisted of Blum’s questions and the defendant’s answers,
which Blum wrote down, as the interview progressed. At the conclusion of the interview, he asked
both the defendant and his mother to read the four-page statement, make any necessary changes, and
initial the first three pages and sign the final page. This four-page statement, initialed and signed
by the defendant and his mother, was introduced into evidence.

          Blum stated that he had made no promises or threats to induce the defendant to confess, and
that, to the best of his knowledge, the statement was freely and voluntarily given.

       On cross-examination, Blum testified that it was standard practice to conduct interviews of
juveniles at Juvenile Court. He said that it was his usual practice to write down a suspect’s


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statement, as the suspect gave it during the interview, rather than to require the suspect to write his
statement down himself.

       After deliberation, the jury convicted the defendant of aggravated robbery, a Class B felony.
At sentencing, the trial court classified the defendant as a standard, Range I offender, because his
prior “many, many convictions” had occurred while he was a juvenile. The trial court found three
enhancement factors applicable: (1) the defendant has a previous history of criminal convictions or
criminal behavior in addition to those necessary to establish the appropriate range; (2) the defendant
was a leader in the commission of an offense involving two or more criminal actors; and (8) the
defendant has a previous history of unwillingness to comply with the conditions of a sentence
involving release into the community. Tenn. Code Ann. § 40-35-114(1), (2), and (8) (1997).
Finding no relevant mitigating factors, and applying the three enhancement factors, the trial court
sentenced the defendant to twelve years confinement, the maximum sentence allowed for a standard,
Range I offender convicted of a Class B felony.

                                             ANALYSIS

                                   I. Sufficiency of the Evidence

        The defendant first argues that the evidence, consisting of the victim’s testimony and his
confession, was insufficient to support the jury’s verdict. The defendant implies that his confession,
handwritten by Sergeant Blum and made without benefit of counsel, was not voluntary. Although
the defendant’s argument on this issue is not clear, he seems to suggest that, had the trial court not
allowed his confession to be admitted at trial, the victim’s testimony alone would have been
insufficient to support the jury’s finding that he was guilty of aggravated robbery beyond a
reasonable doubt.

         When a defendant raises an issue regarding the sufficiency of the evidence, the relevant
question of the reviewing court 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 offense
charged beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789,
61 L. Ed. 2d 560 (1979). See also State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v.
Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App.), perm. app. denied (Tenn. 1992); Tenn. R. App.
P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury shall be set aside
if the evidence is insufficient to support the finding by the trier of fact of guilt beyond a reasonable
doubt.”). All questions involving the credibility of witnesses, the weight and value to be given the
evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754 S.W.2d
620, 623 (Tenn. Crim. App.), perm. app. denied (Tenn. 1987). “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.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). A
jury conviction removes the presumption of innocence with which a defendant is initially cloaked
and replaces it with one of guilt, so that on appeal, a convicted defendant has the burden of


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demonstrating that the evidence is insufficient. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.
1982).

        We first address the defendant’s suggestion that his confession was erroneously admitted into
evidence at trial. A trial court’s findings of fact in a suppression hearing are conclusive on appeal
unless the evidence preponderates otherwise. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996); State
v. Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994). In order to be admissible at trial, a confession
must have been freely given by a defendant knowledgeable of his constitutional rights, and
accompanied by a knowing and valid waiver of those rights. Stephenson, 878 S.W.2d at 544-45.
Statements that arise from a custodial interrogation may not be used by the prosecution at trial
“unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-
incrimination.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694
(1966); State v. Crump, 834 S.W.2d 265, 268 (Tenn. 1992).

        At the conclusion of the suppression hearing, the trial court denied the defendant’s motion
to suppress his confession, finding that the defendant’s statement had been knowingly and
voluntarily given. The evidence presented at the suppression hearing supports this finding.
According to Sergeant Blum, the defendant was read his rights before the interview began, and
indicated that he understood those rights and wished to make a statement. Both Sergeant Blum and
the defendant stated that the interview lasted less than one hour, and that the defendant’s mother was
present the entire time. The defendant acknowledged that no one told him what to say, and that his
statement was not coerced by any police officers or officials. As the trial court observed, the
defendant’s only basis for arguing that his statement was involuntary was the sadness he felt because
his mother was crying. That the defendant felt “pressured” by his mother’s tears, however, is not
sufficient to show that his confession was involuntary. See State v. Perry, 13 S.W.3d 724, 738
(Tenn. Crim. App.), perm. app. denied (Tenn. 1999) (stating that in determination of voluntariness
of confession, “overriding question” is “whether the behavior of law enforcement officials served
to overbear the defendant’s will to resist”).

       After hearing the evidence presented at trial, including the defendant’s confession and the
victim’s testimony, the jury found the defendant guilty of aggravated robbery. Robbery is defined
in Tennessee Code Annotated Section 39-13-401(a) as the intentional or knowing theft of property
from the person of another by violence or putting the person in fear. Aggravated robbery is robbery:

                 (1)   Accomplished 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; or

                 (2)   Where the victim suffers serious bodily injury.

Tenn. Code Ann. § 39-13-402(a) (1997).




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        Viewed in the light most favorable to the State, the victim’s testimony establishes that the
defendant forced his way into the victim’s house at gunpoint, that he threatened to shoot the victim
and her mother if she did not give him her son’s set of gold tire rims, and that he left only after she
unlocked the shed, allowing him to take the rims that he wanted. The defendant’s confession, in
which he admitted that he had taken the tire rims from the victim at gunpoint, corroborates the
victim’s account. We conclude, therefore, that the evidence presented at trial was sufficient for a
rational trier of fact to find the defendant guilty of aggravated robbery beyond a reasonable doubt.

                            II. Application of Enhancement Factors

       The defendant next argues that the record does not support the trial court’s application of
enhancement factors (1), (2), and (8). He asks that this court reduce his sentence from the maximum
of twelve years, imposed by the trial court, to the presumptive minimum sentence of eight years.

        When an accused challenges the length and manner of service of a sentence, it is the duty of
this court to conduct a de novo review on the record with a presumption that "the determinations
made by the court from which the appeal is taken are correct." Tenn. Code Ann. § 40-35-401(d).
This presumption is "conditioned upon the affirmative showing in the record that the trial court
considered the sentencing principles and all relevant facts and circumstances." State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991). The party challenging the sentences imposed by the trial court has
the burden of establishing that the sentences are erroneous. Sentencing Commission Cmts. to Tenn.
Code Ann. § 40-35-401; Ashby, 823 S.W.2d at 169. Since the record in this case indicates that the
trial court followed the appropriate steps in sentencing, we review this issue de novo, giving the
presumption of correctness to the trial court’s sentencing determinations.

        The defendant first argues that the trial court erred in applying enhancement factor (1), “[t]he
defendant has a previous history of criminal convictions or criminal behavior in addition to those
necessary to establish the appropriate range[.]” Tenn. Code Ann. § 40-35-114(1) (1997). He asserts
that, for sentencing enhancement purposes, a court may not consider acts committed as a juvenile
unless the offenses upon which the adjudications of delinquency were based were ones which would
have constituted felonies if committed by an adult. We agree. However, the defendant is not helped
by the fact that the trial court relied upon factor (1) rather than factor (20) in considering the
defendant’s horrendous criminal record. It appears that, as a juvenile, the defendant had at least
twenty-two arrests, beginning the day before his tenth birthday when he was still nine years old,
when he was charged with receiving and concealing stolen property. His first six arrests were
“adjusted nonjudicially.” Apparently, his first confinement occurred when he had just turned
fourteen and had committed his seventh offense, this one being for theft of a vehicle. He was placed
on probation for this offense. Obviously, he learned little from his period of probation, as evidenced
by the fact that he was arrested and processed through Juvenile Court fifteen more times over the
next two years, until he turned eighteen. Two of these arrests and convictions, for theft of property
valued between $1,000 and $10,000 and for aggravated burglary, would have been considered
felonies, if committed as an adult, and therefore were enhancement factors pursuant to Tennessee



                                                  -6-
Code Annotated Section 40-35-114(20). Thus, we conclude that the trial court improperly applied
factor (1), but it is clear that factor (20) applies as an enhancement factor.

        The defendant also argues that the trial court erred in applying enhancement factor (2), “[t]he
defendant was a leader in the commission of an offense involving two (2) or more criminal actors[.]”
Tenn. Code Ann. § 40-35-114(2). The defendant contends that no evidence was presented at trial
to show that the defendant’s accomplice acted under his direction or influence. We disagree. Both
the victim’s and the defendant’s accounts of the robbery reveal that the defendant was the clear
leader in this offense. When asked to describe how the robbery “went down,” the defendant stated:

               I had the pistol under the jacket and when the lady came to the door
               and she looked at the coat I showed her the gun and told her to get
               back in the house. I then waved for Mario to come in with me. We
               got inside and I told her to give us the rims. She took us to the shed
               in the back yard, unlocked it. I gave the gun to Mario to hold on the
               lady and I carried the rims to Mario’s car, it was parked in the front
               of the house.

The record supports the trial court’s application of sentencing enhancement factor (2).

         Finally, the defendant argues that the trial court erred in applying enhancement factor (8),
“[t]he defendant has a previous history of unwillingness to comply with the conditions of a sentence
involving release into the community[.]” Tenn. Code Ann. § 40-35-114(8). The defendant
acknowledges that his juvenile record contains two violations of probation offenses, but, relying
once more on the language of factor (20), asserts that the trial court may not base its application of
factor (8) on these probation violations because “only adjudications of delinquency which would
have constituted a felony when committed as an adult may be considered in enhancing a sentence.”
We disagree with the defendant’s argument in this regard. The trial court’s application of factor
(8) is supported by the record.

                                          CONCLUSION

       We conclude that the evidence was sufficient as a matter of law to convict the defendant of
aggravated robbery, and that the trial court committed no error in sentencing. We, therefore, affirm
the judgment of conviction and the sentencing imposed.



                                                       _______________________________________
                                                       ALAN E. GLENN, JUDGE




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