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

           STATE OF TENNESSEE v. GABRIEL ANTONIO CLARK

                  Direct Appeal from the Circuit Court for Madison County
                          No. 99-528    Roy B. Morgan, Jr., Judge



                   No. W2000-02595-CCA-R3-CD - Filed September 7, 2001


The Appellant, Gabriel Antonio Clark, was convicted by a Madison County jury for one count of
felony murder and one count of aggravated robbery. Clark was sentenced to life imprisonment for
the murder conviction and, following a sentencing hearing, received a twelve-year sentence for
aggravated robbery. The sentences were ordered to be served consecutively. On appeal, Clark raises
the following issues for our review: (1) Whether the evidence presented at trial is sufficient to
support his convictions; and (2) whether the trial court erred by failing to exclude or redact a portion
of Clark’s statement to police which he contends was highly prejudicial and in violation of Tenn. R.
Evid. 403. After review, we find no reversible error and affirm the judgment 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.

Daniel J. Taylor, Jackson, Tennessee, for the Appellant, Gabriel Antonio Clark.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Laura
McMullen Ford, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General;
and Al Earls, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                              OPINION

                                        Factual Background

       Antonio Womack was employed at Butts Foods, a meat and poultry distributor, in Jackson
for approximately two and one-half years. In November of 1998, Womack, who was a forklift
operator in the warehouse, was fired for habitually arriving late to work. Two days after his
termination, during the early morning hours of November 11, 1998, Womack drove to Kiawauna
Wynn’s house to socialize, play cards and smoke marijuana with Wynn and the Appellant. While
at Wynn’s residence, Womack overheard the Appellant and Wynn discuss plans to commit a
robbery. At the same time, Womack mentioned to the two that he needed to retrieve a sweater that
he had left at Butts Foods two days earlier.

        Sometime later that morning, the Appellant left Wynn’s residence, but came back twenty
minutes later with “either a nine [millimeter] or a .380" pistol. Wynn was carrying a .357 pistol.
At approximately 4:00 a.m., all three men got into Wynn’s Nissan and drove to Butts Foods. When
they arrived, the three men parked across the street at Floyd’s Tavern. Womack knocked on the front
glass door while Wynn and the Appellant waited in the car. The victim, Billy Ledbetter, worked as
night manager for Butts Foods and unlocked the door for Womack. After Womack retrieved his
sweater, the victim walked Womack back to the front door and told him to “have a good night.”

        According to Womack, the Appellant and Wynn came through the door as the victim was
letting him out of the building. Womack stayed outside and shortly thereafter heard numerous
gunshots. After hearing the shots, Womack fled a short distance on foot. Wynn and the Appellant
later drove by and picked him up. Although Womack’s testimony was equivocal as to whether he
knew that Butts Foods was going to be robbed that night, he maintained that he accompanied the
Appellant and Wynn only to retrieve his sweater and only left with them “because [he] could have
been next.”

        The three men returned to Wynn’s house where the money was counted. Approximately
$7,187 in cash and $17,122 in checks were taken from the business. Womack testified that Wynn
and the Appellant split the cash before the Appellant burned the checks and keys. While dividing
the money, the Appellant told Wynn, “Look like you got that m-----r f----r brains on your pants leg.”
Although Womack initially denied telling Wynn and the Appellant where the money was located,
he later admitted at trial that he did, in fact, tell them that the money could be found in a desk.
Womack testified that he did not share in the proceeds of the robbery because the Appellant told him
“he [didn’t] think [he] deserved any money cause [he] didn’t do [any]thing.” Two days later, when
Womack returned to Butts Foods to obtain his paycheck, police arrested him and took him into
custody. Womack initially denied any involvement in the crime.

        On June 14, 1999, the Appellant was taken into custody on an unrelated charge. When
officers indicated that they wanted to talk to the Appellant about the Butts Foods robbery and
murder, he stated that he would only speak with Sergeant Leslee Hallenback. At approximately 1:00
p.m., after being Mirandized and having signed a waiver of rights form, the Appellant, although
agreeing to talk, refused to allow Sergeant Hallenback to record or write any of the conversation
down or allow any other officers in the room. In his statement to Sergeant Hallenback, the Appellant
related that he, Womack, and Wynn had all discussed the robbery two to three weeks prior to the
incident. However, the Appellant stated that he was not aware of Wynn and Womack’s plans to
commit a robbery at the time he got into the vehicle. The Appellant also stated, “the last time he saw
the guns, Womack had them, and that the two guns he [Appellant] was arrested with were not any
of the murder weapons.” The Appellant further stated, “What if I was the shooter? I’m looking at
51 years.” This interview lasted approximately one hour before the Appellant told Sergeant


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Hallenback that he needed “some time to think” before continuing the interview. Sergeant
Hallenback ceased further questioning and immediately reduced the Appellant’s statement to writing
outside the presence of the Appellant.

        At approximately 6:00 p.m. that same night, Sergeant Hallenback spoke with the Appellant
a second time. Again, the Appellant stated that the discussions about robbing Butts Foods began
while Womack was still employed there. The Appellant also stated that Womack had explained how
they could get inside the building to commit the robbery if he left a sweater and then went back to
retrieve it. The Appellant claimed he was not present when the actual robbery occurred, but stated
that Womack did have a nine millimeter pistol with him that day.

        Roger Harwell, a truck driver for Butts Foods, also testified at trial. Harwell testified that
during the early morning hours of November 11th, he recalled seeing three people, all wearing
toboggans, in a small dark-colored car parked beside a trailer near Butts Foods. He observed the car
leave and come back several times while he was at Butts Foods. He also informed Ledbetter that
the car was outside the building. Harwell last saw the car parked at Floyd’s Tavern when he left for
his route at 4:00 a.m.

         Leon Breathette was incarcerated with the Appellant in the Madison County Jail. At trial,
he testified that the Appellant told him that he [the Appellant] and two others had been involved in
a “warehouse robbery” that “had went bad.” Breathette explained that the Appellant told him, “the
guy was supposed to have been gone [but] came back unexpectedly, surprised them, and he [the
Appellant] shot him.”

        Dr. O.C. Smith, a forensic pathologist, performed an autopsy on the victim. At trial, Dr.
Smith testified that the cause of death was multiple gunshot wounds. He testified that the victim
received a total of five gunshot wounds, including one superficial graze and four that penetrated the
victim’s body. The victim received a gunshot wound to the right forehead, a gunshot wound to the
right cheek, and two gunshot wounds to the abdomen. Dr. Smith opined that none of the wounds
would have been immediately fatal. The pathologist’s testimony indicated that the gunshot wounds
to the head and the wounds to the abdomen were produced by two different weapons. The gunshot
wounds to the head were consistent with those being produced by a .38/.357 caliber weapon while
the wounds to the abdomen were consistent with those being produced by a .380 caliber weapon.1


                                           I. Sufficiency of the Evidence

       The Appellant asserts that the evidence presented at trial is insufficient to support his
convictions for felony murder and aggravated robbery. He argues that the proof, viewed as a whole,


         1
           At trial, the parties stipulated that the TBI Crime Laboratory tests established that the “shell casings and bu llets
recovered from the scene of Butts Foods . . . determined that the casings were from a .380, and one bullet was from a
.38/.357 . . . [T]hat a .38 0 and a .3 8/.357 a re differen t caliber we apons a nd cou ld not be fir ed from the same gun.”

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fails to support his convictions and further argues that Womack “was not a credible witness based
upon the various contradictory statements that he gave regarding his involvement or lack of
involvement in this crime.”

        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). Instead, the defendant must establish
that the evidence presented at trial was so deficient that no reasonable trier of fact could have found
the essential elements of the offense 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). 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).

        Jackson v. Virginia addresses two important aspects of a sufficiency review: (1) the manner
of review of the convicting evidence; and (2) the standard of review for legal sufficiency. The scope
of our examination of the evidence is not equivalent to that of the jury. In a challenge to the
sufficiency of the evidence, this court does not retry the defendant. We emphasize that our
examination in a sufficiency review is not to revisit inconsistent, contradicting, implausible or non-
credible proof, as these issues are resolved solely by the jury. Rather, we look to the record to
determine whether there was substantive probative evidence to support the verdict. The second
inquiry, the question of legal sufficiency, then follows: whether the record contains evidence from
which the jury could have found the essential elements of the crime beyond a reasonable doubt.
Every reasonable hypothesis of innocence need not be dispelled; it is only necessary that there exists
proof which supports the elements of the crime. Again, we emphasize our inquiry is not upon the
weight of the evidence or its inconsistencies but, rather, if there is proof of the crime beyond a
reasonable doubt.

        In the present case, the Appellant was convicted of felony murder and aggravated robbery.
The Appellant was prosecuted for felony murder based upon the allegations in the indictment that
the victim was killed “during the perpetration of aggravated robbery in violation of Tenn. Code Ann.
§ 39-13-202 . . .” Additionally, aggravated robbery is “the intentional or knowing theft of property
from the person of another by violence or putting the person in fear . . . 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 where the victim suffers serious bodily injury.” Tenn. Code Ann. § 39-13-
402(a)(1)(2).



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        The proof at trial established that the Appellant admitted to Sergeant Hallenback that he
discussed committing the Butts Foods robbery with Womack and Wynn prior to the robbery. The
proof additionally established that the Appellant was present during the robbery and murder of Billy
Ledbetter. Furthermore, the proof demonstrated that the Appellant was armed with a .380 or nine
millimeter weapon, the .380 caliber weapon being a caliber consistent with the wounds sustained by
the victim. The Appellant participated in counting the stolen money and sharing in the proceeds.
Finally, he admitted to an inmate that he was involved in a warehouse robbery that “had went bad.”
Clearly from these facts, a jury could have concluded, based upon this conduct or by the conduct of
others for which he was criminally responsible or by both, that he was guilty of felony murder and
aggravated robbery. Tenn. Code Ann. § 39-11-401.

         We acknowledge that Womack’s testimony at trial was conflicting and on occasion
contradicted his previous statements to police. However, such inconsistencies and questions of
credibility were placed before the jury. Questions of credibility of the witnesses are for the jury.
See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn.1984); State v. Cabbage, 571 S.W.2d at 835.
After reviewing the facts in the light most favorable to the State, we find the evidence presented at
trial sufficient to support his convictions for first degree murder and aggravated robbery.


                                II. Admission of Appellant’s Statement

        The Appellant next argues that the trial court erred by admitting into evidence a portion of
his statement given to Sergeant Hallenback. At the Appellant’s request, Sergeant Hallenback
interviewed the Appellant twice on June 14, 1999. Although the Appellant refused to let her record
or write anything down during the interview itself, Sergeant Hallenback immediately reduced the
Appellant’s statements to writing following each interview. On May 22, 2000, the trial court heard
the Appellant’s motion in limine which sought redaction of the following portion of his statement:

                 [The Appellant] told me that the last time he saw the guns, Womack
                 had them, and that the two guns he was arrested with were not any of
                 the murder weapons.

After hearing arguments, the trial court denied the Appellant’s motion, ruling the challenged portion
was admissible because it was substantive evidence.

       The record suggests that the Appellant’s arrest at the time that he gave the statement to
Sergeant Hallenback was for a charge unrelated to the current offenses.2 Thus, in this context, the
Appellant related to Sergeant Hallenback that “the two guns he was arrested with [on this occasion]
were not any of the murder weapons [used in the Butts Foods murder].” Accordingly, the Appellant
argues that evidence of this subsequent arrest, implying additional unlawful activity, was highly


        2
          On this occasion, approximately seven months after the Butts Foods robbery and murder, the Appellant was
a passeng er in a veh icle in whic h weap ons and cocaine w ere foun d.

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prejudicial and irrelevant. We agree that this evidence was irrelevant and improperly admitted
because the Appellant’s possession of these weapons had no connection to the murder or robbery
of the victim in this case. Tenn. R. Evid. 401. Nonetheless, we note that prior to the introduction
of this portion of the Appellant’s statement, trial counsel stipulated to the same facts which he now
contends were irrelevant. At trial, the following stipulation was admitted into evidence:

                It is stipulated that the weapons recovered at the time of [the
                Appellant’s] arrest were from the trunk of Joe Bond’s car which Joe
                Bond was driving at the time. These weapons were tested and
                determined to not be the murder weapon by a Tennessee Bureau of
                Investigation agent in a report dated November the 10th, 1999.

Trial counsel prefaced this stipulation by stating, “since the Court has overruled me and this evidence
is coming in anyway, I’ve agreed [to the stipulation], without waiving my client’s right to appeal this
issue . . . I’m not waiving my client’s objection.” As the trial court correctly charged during jury
instructions, “A stipulation is an agreement. The State and the Defendant have stipulated that certain
matters of fact are true. They are bound by this agreement, and in your consideration of the
evidence, you are to treat those facts as proved.” Trial counsel cannot stipulate to a fact and then
later argue the facts stipulated to were error. For this reason, we find that any error in its introduction
was negated by trial counsel’s stipulation, thereby nullifying any harmful effects of the error. Tenn.
R. App. P. 36(a). Moreover, while we conclude that the introduction of the portion of the statement
objected to was error, we additionally find its admission did not affect the results of the trial and was
clearly harmless. Tenn. R. Crim. P. 52(a).


                                            CONCLUSION

       After review, we find the evidence presented at trial sufficient to support the Appellant’s
convictions for first degree murder and aggravated robbery. Finding no reversible error, we affirm
the judgment of the Madison County Circuit Court.




                                                         ___________________________________
                                                         DAVID G. HAYES, JUDGE




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