        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs December 9, 2014

                 STATE OF TENNESSEE v. GARY D. SCALES

                Appeal from the Criminal Court for Davidson County
                   No. 2013B1414    Cheryl A. Blackburn, Judge




                 No. M2014-01094-CCA-R3-CD - Filed March 9, 2015


Defendant, Gary D. Scales, was indicted by the Davidson County grand jury for one count
of robbery. A jury found Defendant guilty of the charged offense, and the trial court
sentenced Defendant to serve 15 years in the Tennessee Department of Correction as a
Persistent offender. Defendant appeals his conviction and asserts that the evidence was
insufficient to support his conviction. Having carefully reviewed the record before us, we
affirm the judgment of the trial court.

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

T HOMAS T. W OODALL, P. J., delivered the opinion of the Court, in which A LAN E. G LENN and
T IMOTHY L. E ASTER, JJ., joined.

James O. Martin, III, Nashville, Tennessee, (on appeal); and Andrew Beasley, Nashville,
Tennessee, (at trial), for the appellant, Gary D. Scales.

Herbert H. Slatery, III, Attorney General and Reporter; Benjamin J. Ball, Senior Counsel;
Victor S. Johnson, III, District Attorney General; and Bret Gunn, Assistant District Attorney
General, for the appellee, the State of Tennessee.

                                        OPINION

Background

        At approximately noon on June 2, 2012, Charles Dubuisson was driving on Jefferson
Street in heavy traffic when he witnessed Defendant grab the victim, who was walking with
a cane, and take him to the ground. He also noticed that Defendant put both hands in the
victim’s front pockets and took something out. Defendant then “stood up, walked stiff
armed and looked around a few times, and then walked at a very fast pace away.” Mr.
Dubuisson testified that he watched Defendant walk past a tent toward the back of the Family
Dollar building. Mr. Dubuisson also saw a white female with strawberry blonde hair who
appeared to be with Defendant. Mr. Dubuisson used his cell phone to call police. He
returned to the scene and spoke with an officer. Mr. Dubuisson later identified Defendant
from a photographic line-up. He also identified Defendant at trial. Mr. Dubuisson testified
that he attempted to identify the female from a photographic line-up. He picked out a
photograph but later called police and told them that he had picked the wrong woman from
the line-up. Mr. Dubuisson testified that he did not pay as much attention to the woman as
he did Defendant at the time of the robbery. He was “very sure” of his identification of
Defendant.

       Officer Michael Evans of the Metropolitan Nashville Police Department testified that
he was dispatched to a robbery call at approximately 12:15 p.m. on June 2, 2012, involving
the victim, Sam Bolden. Officer Evans noticed that the victim appeared to be disheveled,
and he thought that there was a cut on the victim’s elbow so Officer Evans called for an
ambulance. He said that the area was located “probably 150 yards west of the Captain D’s”
on Jefferson Street. Officer Evans knew the victim, and he testified that the victim usually
walked with a cane. He said that the victim had been arrested from time to time for public
intoxication and disorderly conduct. Officer Evans learned that four-hundred dollars was
taken from the victim during the robbery. He also spoke with a witness at the scene by the
name of Mr. Dubuisson. Officer Evans took a report and forwarded the case to a detective.

        The sixty-six year old victim, Sam Bolden, testified that on June 2, 2012, he was
eating at the Captain D’s located “there at 10th , 11th and Jefferson” across from Taco Bell.
He noticed that a cashier in the restaurant was threatening to call police on Defendant and
Defendant’s girlfriend, Bonnie Hall, because they did not pay for their food. He said that he
had never seen Ms. Hall before but he had seen Defendant. Mr. Bolden told the cashier not
to call police, and he paid for the couple’s food. He noted that he had a “roll” of money on
his person of approximately three or four hundred dollars.

      Mr. Bolden testified that when he left Captain D’s, he noticed Defendant standing
behind the door, and Defendant began walking behind him. He said,

       And [Defendant] bear hugged me where I couldn’t reach down in my pockets,
       and he couldn’t reach his hand down ‘cause he couldn’t pull my roll of money
       out and he couldn’t get a fist outta there, either. That’s the only way he can get
       his hand out, and he couldn’t get his hand out. So he tossed me on the
       sidewalk and I skinned my legs up. And so I had my cell phone with me and
       I called the police. And the police caught him down the street, down on 10 th

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       and Jefferson down in that area. And they caught him and they brought him
       back up there. And so, yeah, that’s him right there. That’s him.

The victim testified that Defendant took the money out of his pockets while he was on the
ground.

      On cross-examination, the victim testified that he had frequently seen Defendant while
walking up an down Jefferson Street. Concerning Defendant’s identity, the following
exchange took place:

       Q.     Do you see the person who robbed you in court today?

       A.     Do I see him? Uh, well. I, yeah.

       Q.     What do you mean yeah?

       A.     Yes, I see him. That look like him right over there. He’s in the family.

       Q.     When you say it looks like him - -

       A.     He’s in the family but, you know. He came, used to come up there and
              eat Larry’s food and, you know, and sometimes spend the night up
              there, him and his old, his girlfriend. She’s real tacky, on the tacky
              side. They stayed mostly, where he was telling Larry, he stayed at the
              mission.

       Q.     You say he’s in the family. What does that mean?

       A.     He’s kin to ‘em.

       Q.     Kin to who?

       A.     To Larry.

       Q.     Okay. Who’s Larry?

       A.     Larry’s my friend. And Weasel. Our thing, me and Larry used to do,
              I used to go down to the mission and pick up people got [sic] a ID and
              that’s all we needed. He give them, paid them twenty or twenty-five
              dollars to take it back inside the store and get, they don’t give no cash

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     now less you got a receipt to that. It mostly be women’s and children’s
     clothes and men clothes, different ages and all that. And he used to pay
     them to go back inside the store and a purchase return. They give gift
     certificates. Well, we didn’t want that gift certificate ‘cause they don’t
     give you no money back, and that gift certificate we didn’t want.

*    *       *

Q.   Had you been drinking that day?

A.   Had I been drinking?

Q.   Yeah.

A.   No. ‘Cause Larry didn’t want me, he wouldn’t even mess with me
     when I’d been drinking. He said you so drunk, you’ve been drinking,
     we ain’t going - -

THE COURT:         Whoa, whoa, whoa, hold on, Mr. Bolden. Mr. Beasley,
                   you might want to clarify what day you’re talking about.


Q.   Yeah. I’m talking about June the 2nd when you say this happened to
     you at Captain D’s?

A.   No. No. Me and Larry, we were doing our thing and he wouldn’t even
     mess with me when I’d been drinking.

Q.   So there was somebody else there with you?

A.   Huh?

Q.   There was somebody else there with you?

A.   There was somebody else there with me?

THE COURT:         Be specific about what date you’re talking about.

Q.   On June the 2nd , 2012, at Captain D’s there was somebody else there
     with you?

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A.   Somebody else with me?

Q.   Yeah.

A.   No more than what we took out there with us.

Q.   Well, who did you take out there with you?

A.   I think it was this guy that him and, well, I don’t think it was a baby.
     But I know it was him. And we ate, he had a white Cadillac, and we
     filled that, we have about three or four people we pick out each time we
     went.

Q.   All right. So who else was with you at Captain D’s?

THE COURT:         Mr. Beasley. Wait a minute. Mr. Beasley, you need to
                   be very specific about what day you’re talking about and
                   make sure he understands that day you’re talking about.
                   Okay?

*    *       *

Q.   June the 2nd , 2012, what we’re talking about in court today, who else
     rode out to Captain D’s with you?

A.   Well, I know we had, uh, we had, I can’t remember ‘cause uh, uh, uh,
     uh, we had at least, uh, four people that we usually take, we have four
     people.

Q.   Okay.

A.   ‘Cause we paid something like $15 for a purchase return. All you gotta
     do is go in and get that gift certificate. And they ain’t gonna give you
     no money ‘cause we didn’t have no receipts.

Q.   And one of the guys that went with you on June 2 nd , 2012 is Larry?

A.   Yeah.

Q.   Okay. And you think Larry is related to that guy?

                                    -5-
       A.     Well, he was a Scales. That’s all I know.

       Q.     Okay. So Larry is also a Scales?

       A.     He’s supposed to had been one.

       On redirect examination, the victim clarified that on the day of the robbery, he was
at Captain D’s alone.

        Timothy Vansel is the manager of the Captain D’s on Jefferson Street. He testified
that he had seen Defendant and Ms. Hall outside of the Captain D’s on several occasions and
on the street corners as he was leaving work. He had also seen them selling the Contributor
Newspaper. On June 2, 2012, Mr. Vansel saw Defendant and Ms. Hall with the victim. He
said that the victim paid for the couple’s food, and they sat together and ate. He thought the
three were in the restaurant for approximately one hour to one and a half hours. Mr. Vansel
spoke with police on June 3, 2012, and viewed a photographic line-up. He identified Ms.
Hall from the photographs. Mr. Vansel also identified Defendant in court as the man that he
saw eating with the victim and Ms. Hall on June 2, 2012.

        Detective Robert Anderson of the Metropolitan Nashville Police Department was
assigned to investigate the robbery in this case. He spoke with Mr. Vansel and developed
Bonnie Hall as a suspect in the robbery. Detective Anderson put together a photographic
line-up and showed it to Mr. Vansel who identified Ms. Hall as being involved in the
robbery. Detective Anderson did not have Defendant’s name as a suspect at that time. He
later developed Defendant as a suspect and showed a photographic line-up to Mr. Dubuisson
who identified Defendant as the person he saw robbing the victim.

       Bonnie Hall testified that in the summer of 2012 she was dating Defendant, and they
lived together at 415 Ireland Street. She remembered the victim buying lunch for her and
Defendant one day at Captain D’s. Ms. Hall testified that sometime later Defendant walked
up behind the victim and grabbed the victim as he was walking away. Defendant took the
victim to the ground and robbed him.

       Ms. Hall spoke with police a few weeks later but did not tell them that Defendant was
the one who robbed the victim. She was afraid that Defendant would lie and say that she
took part in the robbery. Ms. Hall testified that she told police the victim bought lunch for
her and Defendant and that Defendant walked up behind the victim and hugged him
afterwards. She told police that she did not see a robbery.




                                             -6-
       Defendant testified that he did not rob the victim and that he was working at the Pogue
Market on June 2, 2012, “cleaning the lots” with Ms. Hall. He denied going to Captain D’s.
Defendant testified that he had a brother named Larry Scales who is now deceased. He
referred to Larry Scales as his “twin.” Defendant denied knowing Mr. Vansel, the manager
of Captain D’s, and he also denied selling “The Contributor” paper on Jefferson Street.
However, he claimed that Mr. Vansel knew his brother Larry Scales. Defendant asserted
that Ms. Hall was lying when she said that Defendant robbed the victim because she was
“trying to get out of something.”

        On cross-examination, Defendant testified that although they were born two years
apart, he and Larry Eugene Scales were “twins” because they looked alike. He said that Ms.
Hall may have been at the Captain D’s with someone else on June 2, 2012.

Analysis

       Defendant contends that the evidence at trial was insufficient to support his conviction
for robbery. More specifically, he asserts that “the proof did not sufficiently establish his
identity as the person that robbed Sam Bolden.” We disagree.

        “When the sufficiency of the evidence is challenged, the relevant question is whether,
after reviewing the evidence in the light most favorable to the State, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” State v.
Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); see also Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Tenn. R. App. P. 13(e). “Because a guilty
verdict removes the presumption of innocence and replaces it with a presumption of guilt,
on appeal a defendant bears the burden of showing why the evidence is insufficient to
support the conviction.” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012); see also State
v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The State must be afforded the strongest
legitimate view of the evidence and all reasonable inferences that may be drawn therefrom.
See Wagner, 382 S.W.3d at 297; State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The
jury, as the finder of fact, is responsible for assessing the credibility of the witnesses,
deciding the weight to accord their testimony, and reconciling any conflicts in the proof. See
Wagner, 382 S.W.3d at 297; State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). On appeal,
this court cannot re-weigh the evidence or draw any inferences from it other than those drawn
by the jury. See Wagner, 382 S.W.3d at 297; Cabbage, 571 S.W.2d at 835. A guilty verdict
can be based upon direct evidence, circumstantial evidence, or a combination of both. “The
standard of review ‘is the same whether the conviction is based upon direct or circumstantial
evidence.’” Dorantes, 331 S.W.3d at 379 (Tenn. 2011) (quoting State v. Hanson, 279
S.W.3d 265, 275 (Tenn. 2009)). Robbery is defined as “the intentional or knowing theft of



                                               -7-
property from the person of another by violence or putting the person in fear.” T.C.A. § 39-
13-401.

       Defendant asserts that the proof was insufficient to establish his identity as the
perpetrator of the robbery because the identification by Mr. Dubuisson, Ms. Hall, and the
victim was not reliable. The identity of the accused as the person who committed the offense
for which he is on trial is a question of fact for the jury. State v. Williams, 623 S.W.2d 118,
120 (Tenn. Crim. App. 1981). The identity of an accused may be established either by direct
evidence, circumstantial evidence, or a combination of the two. State v. Thompson, 519
S.W.2d 789, 793 (Tenn. 1975). “The credible testimony of one identification witness is
sufficient to support a conviction if the witness viewed the accused under such circumstances
as would permit a positive identification to be made.” State v. Radley, 29 S.W.3d 532, 537
(Tenn. Crim. App. 1999).

       Viewing the evidence in a light most favorable to the State, the proof showed that on
June 2, 2012, Defendant grabbed the sixty-six year old victim, who walked with a cane, and
threw him to the ground. Defendant then reached inside the victim’s front pockets and
forcibly took four-hundred dollars in cash from the victim. Charles Dubuisson identified
Defendant as the person that he saw grab the victim and take him to the ground. He
witnessed Defendant put both hands in the victim’s front pockets, remove something, and
then walk away at a very fast pace. Mr. Dubuisson also noticed a white female who appeared
to be with Defendant. He later identified Defendant from photographic line-up. Mr.
Dubuisson admitted at trial that he incorrectly identified the photograph of the female with
Defendant, and he later called the detective to tell him that he had identified the wrong
person. Mr. Dubuisson testified at trial that he paid more attention to Defendant than he did
the woman at the time of the robbery. At trial, he was “very sure” of his identification of
Defendant.

       Timothy Vansel, the manager of the Captain D’s on Jefferson Street, testified that he
saw Defendant and Bonnie Hall eating with the victim on the day of the robbery after the
victim had paid for the couple’s food. Mr. Vansel later identified Ms. Hall from a
photographic line-up. Ms. Hall admitted at trial that she and Defendant were with the
victim prior to the robbery. She also testified that Defendant walked up behind the victim
and grabbed the victim as he was walking away. Defendant then took the victim to the
ground and robbed him. Ms. Hall admitted at trial that she initially lied to police and told
them that Defendant had hugged the victim but that she did not see a robbery. She was afraid
that Defendant would lie and say that she took part in the robbery.

       The victim testified that he was with Defendant and Ms. Hall at Captain D’s on June
2, 2012, and that he had frequently seen Defendant while walking up and down Jefferson

                                              -8-
Street. He identified Defendant in court as the person who robbed him. We acknowledge
that there was testimony by the victim that he knew Defendant’s brother Larry Scales and
that he rode to Captain D’s with Larry Scales and some other individuals. However, the
victim clarified that he was alone in Captain D’s before he bought food for Defendant and
Ms. Hall, and the victim never testified that he was robbed by Larry Scales.

       Based on the evidence presented a rational juror could conclude that Defendant
committed the offense of robbery. It was the jury’s prerogative to reject Defendant’s
insinuation that his deceased brother, Larry Scales, committed the offense. We conclude that
the evidence was sufficient beyond a reasonable doubt to support Defendant’s conviction.
Defendant is not entitled to relief on this issue.


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


                                          ________________________________________
                                          THOMAS T. WOODALL, PRESIDING JUDGE




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