        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs February 2, 2016

                STATE OF TENNESSEE v. NICHOLAS GRACE

                 Appeal from the Criminal Court for Shelby County
                    No. 1203064    James C. Beasley, Jr., Judge


                No. W2015-01177-CCA-R3-CD - Filed April 29, 2016


The Defendant, Nicholas Grace, was convicted by a Shelby County jury of aggravated
robbery, a Class B felony. See T.C.A. § 39-13-402. The sole issue presented for our
review is whether the evidence is sufficient to sustain the conviction. Upon review, we
affirm the judgment of the trial court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and TIMOTHY L. EASTER, JJ., joined.

Micah Jay Gates (on appeal) and Paul K. Guibao (at trial), Memphis, Tennessee, for the
Defendant-Appellant, Nicholas Grace.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zenter, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Stacy McEndree and
Meghan Fowler, Assistant District Attorneys General, for the Appellee, State of
Tennessee.

                                       OPINION

       While walking home from a high school awards ceremony on November 22, 2011,
the victim in this case, Quatereus Macklin, was robbed at gunpoint by two men. The
Defendant, a nineteen-year old senior in high school, provided a detailed statement to
police admitting to his involvement in this offense. Although the Defendant denied being
armed with a weapon, he corroborated the victim‟s account of the offense including the
description of the car driven by the perpetrators, the type of gun held by his compatriot,
and the type of cell phone that was taken from the victim. The Defendant was
subsequently indicted for aggravated robbery and a trial commenced on January 5, 2015.
        At trial, the victim testified that he left the awards ceremony alone and on foot
sometime around 9:00 p.m. He was on his cell phone with his mother when a white
Nissan Altima pulled up and two males he did not recognize approached him. The two
men were armed with guns and demanded the victim‟s money. The victim said that one
man carried a silver and black handgun and pointed it at his face. The other man, later
identified as the Defendant, was holding an assault rifle that “was big enough for [him] to
hold it with two hands.” The victim dropped his wallet and cell phone, a Cricket ZTE
with orange and black buttons, and emptied his pockets. The Defendant then pointed the
rifle at the victim‟s chest and told him to “run before I shoot you in your back.” As the
victim ran away, he looked back and observed one of the perpetrators pick up his phone
before both men jumped back into their car.

       After the perpetrators left, the victim returned to where he had been standing and
found his wallet on the ground and his ID and cards lying on the sidewalk. He gathered
his belongings, met his mother, and told her about the robbery. The victim and his
mother called his phone on speaker and someone answered and said, “[Y]eah, we took
something, you know what this is. This is gold star mafia. We boosting up the murder
rate.” The victim‟s mother called the police, and upon their arrival, the victim provided a
description of the offense, the perpetrators, and their car. The police transported the
victim to an after party, which was located close to the scene of the robbery, because they
believed the perpetrators may have been present. As they approached the parking area
outside the party, the victim immediately identified the white Nissan Altima driven by the
perpetrators. After the police secured the car, they escorted the victim into the party.
The victim then immediately identified the Defendant as the perpetrator who was holding
the assault rifle.

       The victim testified that there was no doubt in his mind that the Defendant was
one of the men who robbed him, and he was certain that the Defendant was wearing a red
and black jacket during the robbery. The victim‟s cell phone, which was never
recovered, was valued at $180. He said that he only gave the perpetrators his phone
because he thought they were going to shoot him and that he was scared when the
robbery took place. The victim conceded that it was dark outside at the time of the
robbery and that it lasted only three to four minutes. Neither a rifle nor the victim‟s cell
phone was recovered from inside the white Nissan Altima.

      Officer Roger Emmerson of the Memphis Police Department responded to the
robbery, picked up the victim, and drove him to the party. The officer confirmed that the
white Nissan Altima was parked outside the party near the location of the robbery. He
noted that, upon arrival, the victim identified the car and the perpetrators, who were
immediately detained and taken into custody. Demar Wells, a crime scene investigator
with the Memphis Police Department, photographed and searched the white Nissan
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Altima parked outside the party. He collected evidence from inside the vehicle, which
included a Sprint LG cell phone, one spent .25-caliber casing, and a loaded nine-
millimeter semiautomatic handgun. He described the handgun, which was introduced as
evidence at trial, as a “Jimenez Arms gray with black handle nine millimeter
semiautomatic[.]” He noted that the spent .25-caliber Winchester casing did not match
the handgun and was fired by a different weapon. Investigator Wells confirmed that no
rifle, jackets, or additional cell phones were found during his search.

        Sergeant John Simpson of the Memphis Police Department took a written
statement from the Defendant on November 23, 2011. He reviewed the report of the
robbery before the interview began, which indicated that the Defendant was nineteen
years old and a senior at a local high school. The Defendant was advised of his Miranda
rights and signed an acknowledgement form prior to giving a statement. The Defendant
claimed “that he had been with the wrong people, the wrong place, the wrong time.”
Sergeant Simpson noted that “there wasn‟t a lot of general conversation because . . . [the
Defendant] confessed straight out . . . there was no denial[.]” After the statement was
typed, the Defendant was given the opportunity to review it and make any changes before
signing it. The signed statement was introduced into evidence and read to the jury at
trial. The relevant portion of the statement was as follows:

      Q:     Did you participate in the incident which occurred at 4851 Elvis
             Presley, on Tuesday, November 22, 2011 at approximately 9:20
             p.m.?

      A:     Yes sir.

             ....

      Q:     Did anyone else participate in this incident with you, if so, name
             them?

      A:     Yes sir, Eric, I don‟t know his last name, Cameron was driving the
             car and Eddie just stayed in the car.

      Q:     What was Eric wearing during the incident?

      A:     He was wearing a white jacket, I was not paying attention to what he
             was wearing.

             ....

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Q:   What were you wearing during the incident?

A:   I had on some green shoes, black jeans, navy blue and green plaid
     shirt, I had on a brown and green jacket.

Q:   Were you armed with a weapon, if so, describe it?

A:   No sir.

Q:   Was anyone else armed with a weapon, if so, describe it?

A:   Yes sir, Eric. It was small to medium size. It was probably like
     grey. It was about the size of his hand.

     ....

Q:   What was taken in this incident?

A:   A cell phone. It was a Cricket, I think.

Q:   Who took the cell phone from the victim?

A:   Eric.

Q:   What did you receive from this incident?

A:   Nothing.

     ....

Q:   Was a vehicle used during this incident, if so, describe the vehicle?

A:   Yes sir. It was a white Altima or Maxima.

     ....

Q:   Describe, in detail, the events prior to, during and after this incident?

A:   Keyambi called Cameron to come to the Red Oaks to pick me up.
     About ten to fifteen minutes later, Cameron pulled up. Eric and
     Eddie was with Cameron. I got in and we went to the awards at
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              Whitehaven school. We left there and rode down the street and Eric
              said stop the car that he saw somebody walking down the street.
              Eric was like I am fixing to go get him. Eric got out of the car and I
              got out with him and we walked up to the guy and Eric pulled the
              gun out and told the guy to give him everything. The guy said that
              he did not have anything but his phone and he threw the phone on
              the ground. Eric picked the phone up and we went back to the car
              and drove off.

              ....

       Q:     Why did you participate in this incident?

       A:     I was not thinking. I went to just go see what we were going to do.

       Q:     Who planned this incident?

       A:     Eric.

       Q:     Were you forced in any way or by anyone to participate in this
              incident?

       A:     No sir.

       Before the close of proof in this case, the parties stipulated that when the
Defendant was released, jail records showed that he had a green and brown jacket. The
Defendant was convicted as charged and sentenced as a Range I, standard offender to an
agreed term of nine years at eighty-five percent to be served in the Department of
Correction. This sentence was to be served consecutively to another unrelated case.
After the denial of his motion for new trial, the Defendant filed a timely notice of appeal.
This appeal followed.

                                       ANALYSIS

       The Defendant argues that the evidence was insufficient to support his conviction
for aggravated robbery. Although he concedes that an aggravated robbery occurred in his
presence, he maintains that he did not participate in the offense and that he was not armed
when it took place. He acknowledges that the jury credited the victim‟s testimony;
however, he asserts that the victim‟s story was contradicted by physical evidence, and his
conviction was therefore improper. Upon review, we conclude that the evidence was
sufficient to sustain the aggravated robbery conviction.
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        When a defendant challenges the sufficiency of the evidence, the standard of
review applied by this court is “whether, after reviewing 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). Similarly, Rule 13(e) of the Tennessee Rules of Appellate Procedure states,
“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.” When considering the sufficiency of the evidence on appeal, the State
is entitled to the strongest legitimate view of the evidence and all reasonable inferences
which may be drawn from that evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn.
2011) (citing State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010)). “Because a verdict of
guilt removes the presumption of innocence and raises a presumption of guilt, the
criminal defendant bears the burden on appeal of showing that the evidence was legally
insufficient to sustain a guilty verdict.” State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009).

       Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Matthews, 805 S.W.2d
776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn.
1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The standard of review for
sufficiency of the evidence “„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)). The jury as the trier of fact must
evaluate the credibility of the witnesses, determine the weight given to witnesses‟
testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d
331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App.
1978)). Moreover, the jury determines the weight to be given to circumstantial evidence
and the inferences to be drawn from this evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence are questions
primarily for the jury. Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d
646, 662 (Tenn. 2006)). When considering the sufficiency of the evidence, this court
shall not reweigh the evidence or substitute its inferences for those drawn by the trier of
fact. Id.

       Robbery “is the intentional or knowing theft of property from the person of
another by violence or putting the person in fear.” T.C.A. § 39-13-401(a). As relevant to
the present case, aggravated robbery is a robbery that 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.” Id. § 39-13-402(a)(1).



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       The Defendant specifically argues that he cannot be criminally responsible for the
conduct of his compatriot, who planned the robbery and pointed the gun at the victim.
We need not determine whether the Defendant was criminally responsible for the conduct
of another because the victim in this case testified that both perpetrators exited the white
Nissan Altima, approached him armed with guns, and demanded his money. Although
the Defendant argues that the physical evidence contradicts the victim‟s testimony
because no rifle was recovered from the white Nissan Altima and the victim misidentified
the color of his jacket, these facts or inconsistencies do not preclude a finding of guilt.
The victim was certain that the Defendant was the perpetrator with the assault rifle who
threatened to shoot him in the back because the victim did not have any money. The
Defendant also gave a statement to the police admitting that he was present when the
robbery occurred and that the victim‟s phone was taken from the scene. The jury chose
not to believe Defendant‟s version of his role in the robbery, as was their prerogative.
Viewed in the light most favorable to the State, a reasonable juror could have found the
Defendant guilty of aggravated robbery beyond a reasonable doubt. Accordingly, the
Defendant is not entitled to relief.

                                     CONCLUSION

       Based on the above analysis, the judgment of the trial court is affirmed.



                                                  _________________________________
                                                  CAMILLE R. McMULLEN, JUDGE




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