           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON
                                  Assigned on Briefs August 7, 2001

                STATE OF TENNESSEE v. ERIC TERRELL GLOVER

                      Direct Appeal from the Circuit Court for Fayette County
                              No. 4802 Jon Kerry Blackwood, Judge



                     No. W2000-01278-CCA-R3-CD - Filed September 14, 2001


In July of 1999, a Fayette County Grand Jury indicted the Appellant, Eric Terrell Glover, for the
following offenses: (1) first-degree premeditated murder; (2) first-degree felony murder; (3)
especially aggravated kidnapping; and (4) especially aggravated robbery. Following a jury trial,
Glover was convicted on all charges and, in accordance with the jury’s verdict, was sentenced to life
imprisonment for first-degree premeditated murder.1 For his convictions of especially aggravated
kidnapping and especially aggravated robbery, Glover was sentenced, as a violent offender, to
concurrent twenty year sentences on each charge, with these sentences running concurrently to his
life sentence. On appeal, Glover challenges the sufficiency of the evidence supporting his
convictions as a principal offender under a theory of criminal responsibility for the conduct of
another. He argues that the proof, at best, supports only the subordinate criminal responsibility of
“facilitating.” After review, we find no error and affirm the judgments of the trial court.


                   Tenn. R. App. P. 3; Judgment of the Circuit Court is Affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which JOE G. RILEY and ALAN E. GLENN,
JJ., joined.

Clifford K. McGowan, Jr., Waverly Tennessee, (on appeal only); Gary F. Antrican, District Public
Defender; Shana McCoy-Johnson and Rickey W. Griggs, Assistant Public Defenders, Somerville,
Tennessee, (at trial and on appeal).

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; John H.
Bledsoe, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Walt
Freeland and Colin A. Campbell, Assistant District Attorneys General, for the Appellee, State of
Tennessee.



       1
           The trial court merged the felony murder conviction with the premeditated first-degree murder conviction.
                                            OPINION

                                       Factual Background

        On June 15, 1999, Robert Lee and his wife of thirty-nine years, Barbara Ann Lee, were
preparing for a trip they had planned to take the following day to visit their youngest daughter in
Albuquerque, New Mexico. On that particular morning, Mrs. Lee, the victim, phoned her husband
at work and asked how much cash she should withdraw for the trip. Mr. Lee suggested she only
withdraw $200-300 because he did not want to carry a large amount of cash on his person. The
victim agreed and proceeded to run many errands in preparation for the trip, including purchasing
clothes at Eddie Bauer and withdrawing $200 in cash from the bank.

        At approximately 1:00 p.m., the victim pulled into the Collierville Sonic in her newly
purchased green 1997 Chevrolet Blazer and placed an order. Because the victim frequented that
particular Sonic on a regular basis, Sharon Bryson, a car hop, recognized the victim and her dog,
Otis. As Bryson exited the restaurant with the victim’s food, she observed the following:

       Well, I noticed a black guy was in the back of her vehicle, and I knew that was
       unusual. And I leaned over to see what really was going on. So I noticed this other
       black guy standing down by her driver side of her vehicle. And I turned around and
       went in the inside to get someone to dial 911.

Bryson further testified that the person standing on the driver’s side of the Blazer possessed a
weapon.

        Detectives Scott Young and Gamon Hill, of the Collierville Police Department, responded
to the 911 call. As they interviewed Bryson, she stated that the man holding the gun was wearing
a light blue wind suit and had been walking around the building earlier that same day. Bryson also
informed officers that the men were previously seen that day in a blue car with a tan top. During the
investigation, officers discovered a blue Buick LeSabre with a tan top parked at a NAPA auto parts
store approximately 100 yards away. Officers noticed a Sonic cup inside the car. Further
investigation revealed that the Buick was registered to and owned by Robert Lewis Carpenter, Jr.,
[hereafter “Carpenter”] with whom Detective Young was personally acquainted. Because the car was
registered in Fayette County, officers immediately notified Fayette County law enforcement officers
to be on the lookout for Carpenter or the victim’s Blazer.

        Criminal Investigator Chuck Pugh, of the Fayette County Sheriff’s Department, was also
familiar with Carpenter and lived only two miles from Carpenter’s residence. On this particular day,
Investigator Pugh was at his residence when he received a dispatch requesting that he drive by
Carpenter’s home on Yaeger Road in search of Carpenter or the Blazer. After he received this
request, he proceeded to the Carpenter residence where he spoke with three of Carpenter’s younger
siblings. Investigator Pugh asked the siblings whether they had seen Carpenter that day and all


                                                -2-
responded that they had not.2 As Investigator Pugh left the Carpenter residence, he was notified by
dispatch that a citizen had reported that “they had just met a green Ford [sic] that appeared - that
somebody was holding a gun on the lady in the car.” After searching for the vehicle in a nearby
community, Pugh returned to Yeager Road to again determine if the Blazer had returned to the
Carpenter residence. As Investigator Pugh was driving by the residence, he met the Blazer coming
out of the driveway. He recognized Carpenter as the person driving the Blazer and observed two
other passengers in the vehicle. An immediate high-speed pursuit ensued. Detective Ricky Wilson,
of the Fayette County Sheriff’s Department, also joined in the high-speed chase which, at times,
reached speeds in excess of 100 miles per hour.

         When the road they were traveling dead-ended in a wheatfield in Northern Mississippi, the
Appellant, Robert Carpenter [the Appellant’s cousin], and Antonio Carpenter [the Appellant’s cousin]
all fled from the vehicle. Both the Appellant and Antonio Carpenter [hereinafter “Antonio”] were
apprehended at the scene. The Appellant was found knee-deep in a pond wearing some of the Eddie
Bauer clothing the victim had purchased earlier that same day. After being Mirandized, Investigator
Pugh questioned the Appellant concerning the whereabouts of the victim. The Appellant stated that
he “didn’t have any idea about any white woman.” The Appellant claimed that he had been at the
Carpenter residence for the past two days and that the Carpenters had come by and picked him up in
the Blazer. The Appellant further told Investigator Pugh that he had no idea why they all fled from
the vehicle when it stopped. The Appellant remained calm, composed, and rational throughout the
arrest and did not appear to be remorseful, sad or distraught. In fact, the Appellant falsely identified
himself to officers, stating that his name was “Sincere Williams.”

        Investigators seized $306 in cash and two gold earrings from Antonio. Based upon
information given to officers by Antonio, Investigator Pugh returned to the Appellant’s residence and
proceeded along a dead-end field road behind the house. Investigator Pugh described what he found
in relevant part as follows:

         The first thing I saw when I pulled - I had parked when I - I saw a big snauzer [sic]
         dog. Snauzer [sic] that was laying in the road. It was alive. And I parked back up in
         this area here and walked down toward the dog, and the dog ran off in this area. I
         startled him. He was laying beside her body. But that’s the first thing I saw. And I
         walked down to where he was, and that’s when I discovered the body laying there in
         the ditch. She was clothed. She was laying in that indentation. She was covered up
         with horse blankets. They weren’t as thick as horse blankets but something similar
         to that - covered up with a piece of log and some brush. It was laid on top of her.




         2
           Through their investigation, officers later determined that Carpenter’s siblings had lied abou t the whe reabou ts
of their brother. In fact, the Appellant, Carpenter and Antonio had already driven dow n the field road beh ind the house
at the time Investigator Pugh questioned the siblings. As Investigator Pugh testified, had he known their location at the
time he q uestioned the siblings, “ I would have w ent up the re behind that field and hopefu lly preven ted this.”

                                                             -3-
Drag marks found at the scene indicated that the victim had been dragged 15 to 20 feet before being
placed in the ditch. Investigator Pugh also found a number of personal items belonging to the victim
including the victim’s purse, credit cards, bank receipts, and identification. Approximately 50 feet
from the body, officers found a sawed-off semi-automatic .22 rifle. Along the road and near the body,
officers further located a number of Eddie Bauer clothes tags which had been torn from the clothing
the victim had purchased earlier that day. Approximately four hours later, Carpenter was also
apprehended and found wearing some of the Eddie Bauer clothing.

        Detective Wilson questioned the Appellant on the night of his arrest. Because the Appellant
was sixteen years of age, his father, Reverend James Wright, was present and consented to the
interview. When asked about the circumstances and events that took place the afternoon of the
victim’s murder, the Appellant provided a statement which recited in pertinent part:

       Q:      Earlier today (6-15-99) were you in Collierville, TN?
       A:      Yes.

       Q:      Who were you with?
       A:      Antonio Carpenter and Robert Carpenter.
       ...

       A:      We were supposed to help work on Antonio’s car. Antonio wasn’t
               ready to get up so we were going to go to Sonic where our friend
               “Mont” works because he gives us free food. I got 2 chili dogs, a fry
               and a slush.

       Q:      Where did you eat your food?
       A:      In behind Sonic. “Mont” sneaks the food out the backdoor. Robert
               was parked on the side next to NAPA auto parts sitting in his car
               waiting on me. When I finished eating, I went back to Robert’s car.
               The green Blazer was parked on the passenger side of Robert’s car.
               When I came around the Blazer I saw the ladies dog. I think the dogs
               name was Otis. I asked the lady did it bite and she said no. Robert got
               out of the car with the sawed off gun and went to her window. He told
               her to get to the other side. She tried to get out and he told her to get
               back here. She shut the door and [he] told her to shut up or he would
               shoot her. I got in the back of the Blazer and he told me to move his
               car to NAPA. I parked the car on the side next to Sycamore.

       Q:      Describe the car to me?
       A:      It’s a Buick LeSabre. It’s dark blue with a tan colored top.

       Q:      What did you do after you parked the car?
       A:      Went to the Blazer, gave Robert the key and went to get Antonio.


                                                 -4-
...

Q:    Where was the white lady at?
A:    Front passenger side.

Q:    What was she saying at this point?
A:    We could have her money, just let her go.

Q:    Did you or any of the other two take any money?
A:    Robert took the money and gave it to Antonio.

Q:    How much was it that he took?
A:    A little over $300.

Q:    When you left Antonio’s, where did you go?
A:    Up to the train tracks and turned up through some factories. We went
      down to the road by the old milk barn and went into Fayette County.
      We went around by the big church by the highway and got on 57
      highway and went through Rossville. We turned on the road across
      from Troxel and went to Oak Grove and then to Yager [sic]. The lady
      was saying let me out, we were in the country. Robert wouldn’t stop
      though.
...

Q:    Where did you and the rest go then?
A:    Up the hill behind the house about a mile or so. We sat in the car and
      Robert said he couldn’t let her go because she had seen his face. She
      told him she wouldn’t tell. He then told her he wouldn’t hurt her and
      told her to get out of the car. When he said that she said, “you’re going
      to kill me, aren’t you?” She got out, I took her dog out. She asked me
      not to hurt him, I told her I wouldn’t. Robert came around the back of
      the car while she was turned away and hit her in the back of the head
      with the gun. He hit her with the grip end of the gun. She went to the
      ground kind of backwards and blood started coming from her head.
      She was moving around some. We threw her purse out and left back
      down the hill towards Robert’s house. The kids stopped us and told
      us the police had just left. Robert turned around and took off fast up
      the hill.
...

Q:    How did he get back out to the lady?
A:    Through the woods. I was in the back seat. Robert came back to the
      lady and ran over her. He then backed up and ran over a second time.


                                        -5-
               We got out and me and Tony started getting upset with him for
               running over her. We picked her up and all three of us carried her over
               and put her in a low spot and covered her up with seat covers and
               lumber.

After the statement was reduced to writing, both the Appellant and his father were allowed to review
the statement before the Appellant initialed each response as being correct.

        Dr. O.C. Smith, medical examiner for Shelby County, performed an autopsy on the victim.
At trial, Dr. Smith testified that the victim “died as a result of blows to the head, crushing neck
injuries, a crushed chest, a crushed abdomen and a crushed pelvis.” Dr. Smith testified that these
injuries were massive and consistent with the victim being run over by a motor vehicle. Dr. Smith
observed the presence of tire tracks on the left side of the victim’s rib cage and further testified that
the injuries sustained as a result of the motor vehicle were “slow injuries” indicating “that the car was
not moving at a high speed.” Dr. Smith could not determine how many times the victim was run over
by the Blazer, and stated “it’s possible that she was either moving under the vehicle, either being
moved by the vehicle or moving herself . . . the injuries to the back side would indicate that we’ve
got injuries going in this direction, but the injury pattern to the front of the chest indicates this
direction.” Nonetheless, Dr. Smith determined that the thirty-eight rib fractures, the crushed abdomen,
and the crushed pelvis were the result of being run over by a motor vehicle.

         Dr. Smith further testified that the victim had sustained blows to her face and deep bruises on
the left arm which showed that “a fair amount of force was applied to the inside of the left arm for
some purpose.” Dr. Smith also testified that the victim received “crushing forces” to the front part
of her neck which caused her voice box, trachea, and larynx to be crushed. Dr. Smith noted that the
victim had also sustained “blunt trauma to the head.” He opined, however, that the blow to the head
was not sufficient in and of itself to cause death because the blow “did not produce any skull fracture,
did not produce any brain damage.” Dr. Smith could not specifically identify the weapon that was
used to inflict the blows to the head, face, and neck but did conclude that the surface and edges of the
injuries to the victim’s body were consistent with the weapon being a rifle. Although Dr. Smith was
unable to testify as to whether the victim was conscious or unconscious after the blow to the head,
he was able to determine that she was alive when she received the blow to the back of her head, she
was alive when she received the crushing force to the neck resulting in neck compression, she was
alive when she received thirty-eight rib fractures, she was alive when her pelvis was crushed, and she
was alive when her abdomen was crushed.                 He further testified “that the injuries were
contemporaneous, which means they probably all [had] to be administered or sustained within about
[an] hour’s time.”




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                                      Sufficiency of the Evidence

        The Appellant asserts that the evidence at trial was insufficient to support his convictions
under a theory of criminal responsibility for the acts and offenses of others. Specifically, he contends
that facilitation is a more appropriate theory of culpability and argues that the trial court erred by
failing to grant his motion for judgment of acquittal or by failing to act as the thirteenth juror to
“modify the verdict to reflect that [the Appellant] was guilty of facilitation on each of the counts.”

         A motion for judgment of acquittal raises a question of law for the trial court’s determination.
State v. Hall, 656 S.W.2d 60, 61 (Tenn. Crim. App. 1983). When the trial court is presented with a
motion for judgment of acquittal, the only concern is the legal sufficiency, as opposed to the weight,
of the evidence. State v. Blanton, 926 S.W.2d 953, 957 (Tenn. Crim. App. 1996). Appellate courts
are ill-suited to assess whether the verdict is supported by the weight and credibility of the evidence.
State v. Moats, 906 S.W.2d 431, 435 (Tenn. 1995). For that reason, in Tennessee, the accuracy of
a trial court's thirteenth juror determination is not a subject of appellate review. Id.; State v. Burlison,
868 S.W.2d 713, 719 (Tenn. Crim. App.1993). Instead, once the trial court approves the verdict as
the thirteenth juror, appellate review is limited to determining the sufficiency of the evidence.
Burlison, 868 S.W.2d at 719.

         Accordingly, the standard by which the trial court determines a motion for judgment of
acquittal at the end of all the proof is, in essence, the same standard which applies on appeal in
determining the sufficiency of the evidence after a conviction; that is, whether the evidence presented
at trial was so deficient that no “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, 99 S. Ct. 2781, 2789
(1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994), cert. denied, 513 U.S. 1086, 115 S. Ct.
743 (1995); Tenn. R. App. P. 13(e). A jury conviction removes the presumption of innocence with
which a defendant is cloaked and replaces it with one of guilt, so that on appeal, a convicted
defendant has the burden of demonstrating that the evidence is insufficient. State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). In determining the sufficiency of the evidence, this Court does not
reweigh or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Likewise,
it is not the duty of this Court to revisit questions of witness credibility on appeal, that function being
within the province of the trier of fact. See generally State v. Adkins, 786 S.W.2d 642, 646 (Tenn.
1990); State v. Burlison, 868 S.W.2d 713, 718-19 (Tenn. Crim. App. 1993). Moreover, the State is
entitled to the strongest legitimate view of the evidence and all reasonable inferences which may be
drawn therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992), cert denied, 507 U.S. 954, 113
S. Ct. 1368 (1993).

        In the present case, the jury was instructed as to both criminal responsibility by the conduct
of another and criminal responsibility for facilitating the crimes. After hearing the evidence, the jury
convicted the Appellant for the following offenses under a theory of criminal responsibility for the
conduct of another: (1) first-degree murder (premeditated); (2) first-degree murder (felony); (3)
especially aggravated kidnapping; and (3) especially aggravated robbery. A person is criminally
responsible for the conduct committed by the conduct of another if:


                                                    -7-
       Acting with intent to promote or assist the commission of the offense, or to benefit in
       the proceeds or results of the offense, the person solicits, directs, aids, or attempts to
       aid another person to commit the offense.

Tenn. Code Ann. § 39-11-402(2). Facilitation, however, involves the following:

       A person is criminally responsible for the facilitation of a felony if, knowing that
       another intends to commit a specific felony, but without the intent required for
       criminal responsibility under Tenn. Code Ann. § 39-11-402(2), the person knowingly
       furnishes substantial assistance in the commission of the offense.

Tenn. Code Ann. § 39-11-403(a). Facilitation of a felony is a lesser degree of criminal responsibility
than that of criminal responsibility for the conduct of another. State v. Burns, 6 S.W.3d 453, 470
(Tenn. 1999). The Sentencing Commission Comments expressly characterize facilitation as "a lesser
included offense [of criminal responsibility] if the defendant's degree of complicity is insufficient
to warrant conviction as a party." Tenn. Code Ann. § 39-11-403, Sentencing Commission
Comments. The facilitation statute is premised upon a theory of vicarious responsibility because
it applies to a person who facilitates criminal conduct of another by knowingly furnishing substantial
assistance to the perpetrator of a felony, but who lacks the intent to promote or assist in, or benefit
from, the felony’s commission. See Tenn. Code Ann. § 39-11-404, Sentencing Commission
Comments.

       The Appellant contends that he played a “passive role” in the crimes and, as such, he should
have been found guilty of “facilitation on each of the counts.” We disagree.

        The proof at trial established that the Appellant was present throughout the entire criminal
episode and assisted in the commission of the crimes and benefitted in the proceeds. It was the
Appellant who first approached the victim at the Sonic and who got into the back seat of her Blazer
while Carpenter held a gun to the victim. It was the Appellant who moved Carpenter’s vehicle to the
NAPA lot to remove it from view. It was the Appellant who removed the victim’s dog from the
Blazer and assisted in throwing the victim’s purse from the vehicle. Again, the Appellant assisted
in attempting to conceal the victim’s body, along with his accomplices by dragging the victim to a
ditch where they covered her with seat covers and lumber. When apprehended, the Appellant was
wearing Eddie Bauer jeans and an Eddie Bauer shirt which had been purchased by the victim. After
the high-speed pursuit by law enforcement, the victim ran until officers captured him in a pond.
When questioned, the Appellant falsely identified himself as “Sincere Williams” and denied knowing
anything about the victim. In fact, it was Antonio, and not the Appellant, who led police to the
location of the victim’s body. Only hours later did the Appellant admit to his involvement in the
crime. We conclude that the facts of this case and the evidence introduced at trial clearly establish
that the Appellant acted with the intent to assist in the commission of the offenses, by aiding and
benefitting in the proceeds. As such, we find the proof sufficient to support the Appellant’s
convictions.



                                                  -8-
                                          CONCLUSION

       We find that the evidence presented at trial was more than sufficient to support the Appellant’s
convictions under a theory of criminal responsibility pursuant to Tenn. Code Ann. § 39-11-402(2).
Accordingly, the judgments of conviction for first-degree murder, especially aggravated kidnapping
and especially aggravated robbery are affirmed.




                                                       ___________________________________
                                                       DAVID G. HAYES, JUDGE




                                                 -9-
