        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs May 4, 2010

              STATE OF TENNESSEE v. BRENT RICHARDSON

              Direct Appeal from the Circuit Court for Madison County
                        No. 08-180     Roger A. Page, Judge


                No. W2009-00778-CCA-R3-CD - Filed June 17, 2010


Following a jury trial, the defendant, Brent Richardson, was convicted of first degree felony
murder, second degree murder, carjacking, aggravated robbery, aggravated burglary,
aggravated assault, and aggravated kidnapping. The trial court merged the second degree
murder conviction with the felony murder conviction and sentenced the defendant to an
effective term of life plus forty-four years in the Department of Correction. On appeal, the
defendant argues that the trial court erred in allowing the State to amend two counts of the
indictment after the jury had been sworn and that the evidence was insufficient to support his
convictions. Based upon our review, we affirm the judgments of the trial court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

A LAN E. G LENN, J., delivered the opinion of the Court, in which J.C. M CL IN and D. K ELLY
T HOMAS, J R., JJ., joined.

George M. Googe, District Public Defender, and Paul E. Meyers, II, Assistant Public
Defender (on appeal); Charles L.K. Bloeser, Monteagle, Tennessee (at trial), for the
appellant, Brent Richardson.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; James
G. (Jerry) Woodall, District Attorney General; and James W. Thompson, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                          FACTS

                                       State’s Proof
        Kallie Gaither testified that on March 16, 2007, she drove her boyfriend, Steven
Thomas, home to his apartment on West King Street in Jackson. As Thomas opened his door
to get out of the car, Gaither saw the armed defendant who demanded Thomas’ wallet and
phone. The defendant also told Gaither to give him her purse and phone, and she complied.
The defendant then demanded Gaither’s car keys, which she gave to Thomas. The defendant
ordered Thomas to get out of the car, and, as Thomas was doing so, he dropped the keys.
The defendant told Thomas, “What do you think I’m going to do, shoot you or something?”
The defendant then demanded that the victims accompany him upstairs to Thomas’
apartment. Inside the apartment, the defendant looked around, asked if the victims had any
more phones, and when they told him no, he laughed and said, “Y’all don’t have shit.” The
defendant then told the victims to go to Thomas’ bedroom and shoved his gun in Gaither’s
back, saying, “Bitch, move.” The defendant pointed his gun at Thomas and told him to get
inside the closet, after which Gaither heard a gunshot. The defendant then approached
Gaither and kissed her while holding the gun to her side. The defendant told her to go into
the bathroom, and she locked both bathroom doors. She heard Thomas counting to twenty,
and when he reached twenty, he knocked on the bathroom door and told her it was all right
to come out. When she opened the door, Thomas was holding his side and asked her to get
help. Gaither began screaming and banging on neighbors’ doors, and Thomas collapsed on
the ground. A neighbor called 911, and an ambulance arrived shortly thereafter.

        Gaither said that on March 18, 2007, she identified the defendant from a photographic
lineup and that she knew it was him as soon as she saw his photograph. She also identified
the defendant in the courtroom. She said that her car, a 2003 or 2004 silver Grand Prix, was
later returned to her by the police. Gaither said that she was five feet, eight inches tall and
acknowledged that she told the police that the robber was between five feet, nine inches and
six feet tall and was wearing jeans and “a dark hoodie.” She identified the jacket admitted
into evidence as the one the robber wore that night.

        On cross-examination, Gaither recalled giving a sketch artist a description of the
robber shortly after the incident and identified the drawing the artist prepared. As to the
hairstyle of the robber depicted in the sketch, Gaither said she was unsure of the name of the
hairstyle but had referred to it as “cornrows or something” at the time the sketch was made.
She described the hairstyle as “kind of like braids, but it was kind of in a bun, in a bunch of
little buns. And they were kind of spikey.”

       Officer Robbie Dean Weems of the Jackson Police Department testified that he was
dispatched to the apartment of the victim, Steven Thomas, on March 16, 2007, where he
found Thomas bleeding from a gunshot wound and lying in a hallway outside the apartment.
Inside the apartment, Officer Weems observed what appeared to be a bullet hole in a closet
door, blood on the door frame, and a shell casing on the floor.

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        Officer J. Nelson Stanfill of the Jackson Police Department testified that he assisted
Officer Karrie Hart at the location where Gaither’s abandoned vehicle was found on the
evening of March 16, 2007. Photographs were made of the car which was discovered at the
far east end of Deaderick Street. Officer Stanfill acknowledged that he did not find anything
linking the defendant to the car.

      Sergeant Christopher Wiser of the Jackson Police Department testified that he
responded to the location where Gaither’s vehicle was found. He said that he collected into
evidence a jacket matching the description of the suspect’s jacket which he found in the
backyard of 367 Lexington Street, “about a hundred yards” from where Gaither’s vehicle was
discovered.

        Sergeant Mike Turner, a crime scene investigator and custodian of the evidence room
at the Jackson Police Department, testified that he processed a silver 2003 Pontiac Grand
Prix for fingerprints. He said he made a total of thirteen latent lift cards which were placed
into the evidence vault. He identified police department evidence forms which reflected that
the black and white jacket, the brass shell casing, swabs containing blood, and two buccal
swabs for DNA testing were signed out to Sergeant Alberto Colon to be transported to the
Tennessee Bureau of Investigation (“TBI”) laboratory. Sergeant Turner also identified an
evidence form referencing the bullet recovered from the deceased victim’s back.

       Dr. Staci Turner, an assistant medical examiner for Davidson County and other
counties in Tennessee, testified that she performed the autopsy on Thomas’ body and
determined that the cause of his death was a gunshot wound to the torso. She said the bullet
entered the victim’s chest and passed through the diaphragm, liver, and adrenal gland before
lodging in the muscle in his back. Dr. Turner said she recovered the bullet from the victim’s
back.

       Alex Brodhag, a firearms examiner for the TBI, testified that he examined the .380
automatic cartridge case recovered in the case and compared it with the bullet recovered from
Thomas’ body. He said that the bullet was a .380 automatic and was the type he “would
expect to find in this cartridge had it not been fired.”

       TBI Special Agent Forensic Scientist Bradley Everett testified that he analyzed the
swabs containing blood taken from Thomas’ apartment, the steering wheel cover from the
2003 Pontiac, and the jacket recovered in the case. His examination of the jacket revealed
the presence of the defendant’s DNA on the collar and neck area. He found a mixture of
DNA on the sleeve of the jacket, but the majority of the DNA matched the defendant’s
profile. On cross-examination, Agent Everett acknowledged that he did not find the
defendant’s DNA on the swabs with blood taken from Thomas’ apartment or on the steering

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wheel of the Pontiac vehicle.

       TBI Special Agent Forensic Scientist James Russell Davis, II, testified that he
performed a gunshot residue analysis on the jacket recovered in the case which revealed the
presence of gunshot primer residue, meaning that the jacket “was in the vicinity of a weapon
when it fired.” On cross-examination, he acknowledged that he did not know when the
residue got on the jacket.

       Lashonda Sheperd testified that she had lived at 363 Lexington Street in Jackson for
twenty-two years. She recalled a night in March 2007 when she saw police cars behind her
house and a car in a ditch. At about the same time, the defendant, whom she knew as “B-
Tard,” came to her front door and was taking down the “plats” in his hair. When the
defendant was asked about the car in the ditch, he said that it was his and that he had just
gotten out of it. Sheperd also heard the defendant say that he had “just robbed somebody’s
house.”

        Sergeant Alberto Colon of the Jackson Police Department testified that, in addition
to transporting the evidence to the TBI crime lab, he showed photographic lineups to Kallie
Gaither, from which she identified the defendant. Sergeant Colon acknowledged that there
was no physical evidence linking the defendant to the crime scene at the deceased victim’s
apartment or to Gaither’s car.

        William L. Roane, a latent fingerprint examiner for the Jackson Police Department,
testified that he examined the thirteen latent prints collected from Gaither’s car, from which
there were six identifiable prints. He said that some of the prints matched Gaither, but none
of them matched the defendant.

                                       Defense Proof

        Patrice Richardson, the defendant’s mother, testified that the defendant was living
with her in March 2007 and was between five feet, five inches and five feet, six inches tall
at that time. She said that the defendant had a jacket like the one entered into evidence and
that although his jacket was purchased in January 2007, she did not see it around the house
after the first of February. She acknowledged that on March 16, 2007, the defendant was a
runaway and that she did not know where he was that day.

       Alyson Fraizer, a private investigator hired by the defense, testified that she had
researched hairstyles which were more common to African-Americans. She said that
dreadlocks were different from braids in that dreadlocks have to be cut out and cannot be
taken down. She said that a plat is similar to a braid and described a cornrow as “a braid that

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attaches to [the] head.” She acknowledged that a person unfamiliar with the hairstyle
terminology could get the terms mixed up.

       At the conclusion of the proof, the jury convicted the defendant of all seven counts
as charged in the indictment except for Count 1, which charged the defendant with first
degree premeditated murder. On that count, the jury convicted the defendant of the lesser-
included offense of second degree murder, which the trial court merged with the felony
murder conviction in Count 2. The trial court imposed sentences of life for the felony murder
conviction, eleven years for the carjacking conviction (Count 3), eleven years for the
aggravated robbery conviction (Count 4), six years for the aggravated burglary conviction
(Count 5), five years for the aggravated assault conviction (Count 6), and eleven years for
the aggravated kidnapping conviction (Count 7). Finding, among other things, the defendant
to be a dangerous mentally abnormal person so declared by a competent psychiatrist who
concluded as a result of an investigation prior to sentencing that the defendant’s criminal
conduct had been characterized by a pattern of repetitive or compulsive behavior with
heedless indifference to consequences, see Tenn. Code Ann. § 40-35-115(b)(3), the trial
court ordered all sentences to be served consecutively for a total effective sentence of life
plus forty-four years.

        Although the sentencing of the defendant was not raised as an issue on appeal, we will
set out, in brief, the evidence at the sentencing hearing.

       Diane Jaynes testified that she was a presentence writer for the Tennessee Board of
Probation and Parole, and a copy of the report which she prepared for the defendant was
made an exhibit to the hearing.

       Dr. Louis Douglass King testified that he was a psychiatrist, licensed to practice
medicine in Tennessee and board certified in psychiatry. Dr. King said that he was part of
the team that dealt with the defendant while he was hospitalized in the Timber Springs Child
and Adolescent Unit at Western Mental Health Institute. He said that the defendant, who
was sixteen years old at the time, met the criteria for having a conduct disorder, which was
“characterized by a pattern of behavior which indicates a disrespect for others, their feelings,
disregard for rules.” Dr. King described what his records reflected as to the defendant’s
behavior over the years:

               Looking at his history, dating back to perhaps age five, he’s come to the
       attention of mental health professionals, school officials, legal officials.

            He’s been treated with numerous medications for hyperactivity, for
       mood disorder. He’s received numerous diagnoses other than conduct

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       disorder.

               When he was at Timber Springs the first time – and this is by my
       reading of his chart and discussing his behavior with individuals who were
       there, the program director of nursing and so forth – off of medication – He
       was off of medication for his first admission. His behavior was extremely
       problematic. He required injections to prevent aggressive behavior.

              According to the program director of nurses at one time he picked up
       a chair and threatened to hit staff.

              The second time that he was at Timber Springs he was on medication.
       Even though he demonstrated behaviors consistent with conduct disorder or
       antisocial personality in terms of disrespect, in terms of rule violation, he did
       not engage in the dangerous behavior that he exhibited on the first admission.

              So my opinion about that is that there is something else that he has
       independent of immature frontal lobes that magnify the probability that given
       conduct disorder, antisocial personality, that he can act out in a dangerous
       fashion.

Dr. King said that there was “no known treatment for antisocial personality disorder.”

        Heather Shaffer testified that she was the mother of the victim, Kallie Gaither, and
told of the severe and continuing effects of the crimes upon her daughter. Pamela Thomas
testified that she was the mother of the victim, Steven Thomas, and told of the effects of his
death upon her family and said that the defendant had not shown any remorse.

        The first defense witness was Patrice Richardson, the defendant’s mother. She said
she believed that “he was first diagnosed with a mental disorder classified ED in the seventh
grade, and then followed up shortly thereafter with bipolar disorder at Lakeside.” She said
that the defendant had been on a number of medications over the years.

       George May testified that he was the defendant’s homebound teacher, meaning that
he taught students who could not attend regular school. As to education, May said the
defendant “was excited. He was always talking about furthering his education, going to
college.”

       Dr. Lynne Zager testified that she was a psychologist and, for twenty-six years, had
been director of forensic services at Midtown Mental Health Center in Memphis. She said

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that she had obtained the defendant’s mental health records and, on four occasions in 2008,
evaluated him at the Madison County Jail. She said that the diagnosis of the defendant
through the Department of Corrections was that he had a bipolar illness and an impulse
control disorder. She said it was possible that, while the defendant might age out of his
impulse control disorder, he would have a bipolar disorder for the rest of his life.

                                        ANALYSIS

                              I. Amendment of Indictment

       The defendant argues that the trial court erred in allowing the State to amend Counts
6 and 7 of the indictment, which contained the incorrect date of the offenses, after jeopardy
had attached. The State counters that the amendment was “unnecessary” and that any error
committed by the trial court was harmless because the date was not an essential and material
element of the offenses charged in those two counts.

       We note that the first five counts of the indictment set out March 16, 2007, as being
the date of the various offenses committed against the two victims by the defendant. Count
3 charged that the defendant took the automobile of the victim, Kallie Gaither, by use of a
deadly weapon on that date; and Count 4 alleged that he took her purse and its contents that
same day, also by use of a deadly weapon. However, Count 6 alleged that on or about
November 13, 2007, by use of a deadly weapon, the defendant caused Kallie Gaither to
reasonably fear imminent bodily injury; and Count 7 alleged that on or about October 31,
2007, the defendant did “unlawfully and knowingly remove and/or confine [her] as to
interfere substantially with her liberty” while he was in possession of a deadly weapon. The
argument presented by the defendant, after the State had asked to amend Counts 6 and 7 of
the indictment, was that the grand jury had indicted him for the offenses occurring on the
dates alleged in those two counts. The defendant did not allege that he was prejudiced by the
amendments.

        Finding that the mistakes were typographical errors and that the defendant would not
be prejudiced by the amendment, the trial court allowed the State to amend the indictment
to reflect the correct date of the offenses in Counts 6 and 7.

       Tennessee Rule of Criminal Procedure 7(b) provides:

              (b) Amending Indictments, Presentments and Informations.

             (1) With Defendant’s Consent. With the defendant’s consent, the court
       may amend an indictment, presentment, or information.

                                             -7-
              (2) Without Defendant’s Consent. Without the defendant’s consent
       and before jeopardy attaches, the court may permit such an amendment if no
       additional or different offense is charged and no substantial right of the
       defendant is prejudiced.

     In State v. Brown, 795 S.W.2d 689, 695 (Tenn. Crim. App. 1990), this court allowed
amendment of an indictment to correct a typographical omission:

               Amending an indictment to correct a typographical omission which
       was an unnecessary amendment is an exception to the rule that amendments
       are not allowed over the objection of a defendant once jeopardy has attached.
       State v. Lane, 673 S.W.2d 874 (Tenn. Crim. App. 1983).

       The proof at trial clearly established that all of the offenses occurred on March 16,
2007, and there is no showing that the defendant was either surprised or prejudiced by these
amendments. Accordingly, we conclude that the trial court did not err in allowing
amendment of the indictment.

                              II. Sufficiency of the Evidence

       The defendant challenges the sufficiency of the convicting evidence. Specifically, he
argues that the State did not meet its burden of proving his identity beyond a reasonable
doubt and that there was no physical evidence linking him to the crimes.

        In considering this issue, we apply the rule that where sufficiency of the convicting
evidence is challenged, 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 crime beyond a reasonable doubt.” Jackson
v. Virginia, 443 U.S. 307, 319 (1979); see also 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 findings by the trier of fact of guilt beyond a reasonable doubt.”);
State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600,
604 (Tenn. Crim. App. 1992). 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. 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). Our supreme court stated the rationale for this rule:




                                              -8-
              This well-settled rule rests on a sound foundation. The trial judge and
       the jury see the witnesses face to face, hear their testimony and observe their
       demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be given
       to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212
Tenn. 464, 370 S.W.2d 523 (1963)). “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 demonstrating that the evidence is
insufficient.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

         We conclude that the evidence was more than sufficient to establish the defendant’s
identity as the perpetrator of the crimes. The surviving victim, Kallie Gaither, identified the
defendant from a photographic lineup two days after the crimes and again in the courtroom
at trial. A victim’s identification of a defendant as the perpetrator of an offense is, alone,
sufficient to establish identity. See State v. Hill, 987 S.W.2d 867, 870 (Tenn. Crim. App.
1998); State v. Strickland, 885 S.W.2d 85, 87 (Tenn. Crim. App. 1993).

        Furthermore, the defendant’s DNA and gunshot primer residue were found on the
jacket the police recovered in an area “about a hundred yards” from the location of Gaither’s
abandoned vehicle. Gaither also identified the jacket at trial as the one the defendant wore
the night of the incident. Lashonda Sheperd testified that the defendant appeared at her
house on the same night she saw a car in a ditch and police cars behind her house. She said
that the defendant was taking down the “plats” in his hair and that when he was questioned
about the car in the ditch, the defendant said it belonged to him. She also heard the defendant
say that he had “just robbed somebody’s house.” We conclude that, based upon this
evidence, a reasonable jury could have determined that the defendant was guilty of each of
the offenses for which he was convicted.

                                       CONCLUSION

       Based upon the foregoing authorities and reasoning, the judgments of the trial court

are affirmed.

                                                    __________________________________
                                                    ALAN E. GLENN, JUDGE

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