         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                      August 2000 Session

                      STATE OF TENNESSEE v. JOHN BROWN

                  Direct Appeal from the Criminal Court for Shelby County
                      No. 98-07512, 98-07513   Joseph B. Dailey, Judge



                    No. W1999-00626-CCA-R3-CD - Filed October 27, 2000


John Brown appeals from his Shelby County convictions of aggravated robbery and especially
aggravated kidnapping. He alleges insufficiency of identification evidence and plain error in
admission of evidence of arrests for other crimes. Because there is no error of record requiring
reversal, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which DAVID G. HAYES and
JOHN EVERETT WILLIAMS, JJ. joined.

A.C. Wharton, Jr., Public Defender, Juanita Peyton, Assistant Public Defender (at trial), Garland
Ergüden, Assistant Public Defender (on appeal), for the Appellant, John Brown.

Paul G. Summers, Attorney General, Mark E. Davidson, Assistant Attorney General, William L.
Gibbons, District Attorney General, Jennifer Nichols, Assistant District Attorney General, for the
Appellee, State of Tennessee.

                                              OPINION

               The defendant, John Brown, appeals from his convictions of aggravated robbery and
especially aggravated kidnapping which he received at the conclusion of a jury trial in the Shelby
County Criminal Court. He is presently serving an effective 80-year sentence for his crimes. In this
direct appeal, he claims that the state’s identification evidence is insufficient to sustain his
convictions and that we should notice as plain error the trial court’s admission of evidence of arrests
for other crimes. We have reviewed the record, the briefs of the parties, and the applicable law.
Because no error appears, we affirm.

               In the light most favorable to the state, the evidence at trial demonstrated that on June
21, 1998 at approximately 1:00 p.m., Sean Thomas was sitting in his pickup truck near a bus station
in Memphis when the defendant approached him and said, “Hey, my name’s Eddie Murphy. Can
I wash your truck?” Thomas said no. The defendant opened the passenger-side door and got into
the truck. The defendant had a steak knife in his hand, which he pointed at Thomas. The defendant
told Thomas to drive. Because he did not think he could escape without being hurt, Thomas
complied. The defendant demanded money, and Thomas told him there was money in the glove box.
The defendant thought Thomas was trying to trick him, so he told Thomas to open the glove box.
As Thomas was complying with this demand, he hit a fire hydrant. This enraged the defendant, who
told Thomas to keep driving or he would get “stuck.” Because one of the tires was flat, Thomas
continued driving very slowly. The defendant demanded Thomas’ wallet, and Thomas complied.
The defendant took over $800 from the wallet, threw it at Thomas, and demanded that Thomas stop
the truck. The defendant fled on foot.

              The police quickly suspected the defendant, and Thomas positively identified the
defendant from a photographic lineup.

               Thomas’ truck was processed for fingerprints, but none were found which matched
those of the defendant.

              A police officer testified that he knew the defendant used the name Eddie Murphy
and was proud of his similarity to the actor by the same name.

               The defense chose not to introduce proof.

               On this evidence, the jury found the defendant guilty of aggravated robbery and
especially aggravated kidnapping. At a separate sentencing hearing, the trial court imposed an
effective 80-year sentence. The defendant now appeals.

                                                  I

                 We begin with the defendant’s challenge to the sufficiency of the evidence. In that
regard, the defendant claims that the state’s evidence identifying him as the perpetrator of the crimes
is insufficient to support his convictions.

               When an accused challenges the sufficiency of the evidence, an appellate court's
standard of review is whether, after considering 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, 324, 99 S. Ct. 2781, 2791-92 (1979); State
v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R. App. P. 13(e). This rule applies to findings
of guilt based upon direct evidence, circumstantial evidence, or a combination of direct and
circumstantial evidence. State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990). On
appeal, the defendant no longer enjoys the presumption of innocence and therefore has the burden
of demonstrating that the evidence is insufficient to support the conviction. State v. Tuggle, 639
S.W.2d 913, 914 (Tenn.1982).



                                                 -2-
                 In determining the sufficiency of the evidence, this court should not reweigh or
reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
Questions concerning the credibility of the witnesses, the weight and value of the evidence, as well
as all factual issues raised by the evidence are resolved by the trier of fact. State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). Nor may this court substitute its inferences for those drawn by the
trier of fact from the evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956);
Farmer v. State, 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). On the contrary, this court must afford
the State of Tennessee the strongest legitimate view of the evidence contained in the record as well
as all reasonable and legitimate inferences which may be drawn from the evidence. Cabbage, 571
S.W.2d at 835.

                In the present case, the defendant attacks the reliability of victim’s identification of
him because the victim was frightened and focused on the knife wielded by the perpetrator of the
crimes. He also points out that none of the fingerprints found on the victim’s truck could be matched
to him, and the police did not recover the knife or money taken at the time of his arrest.1 On the
other hand, the state’s proof contains an unequivocal identification of the defendant by the victim,
evidence that the perpetrator had a scar on his neck that was consistent with the one the defendant
had at the time of trial, and evidence that the defendant had used the name Eddie Murphy. A rational
jury could conclude that the state’s evidence established the defendant’s identity as the perpetrator
of the crime beyond a reasonable doubt. As such, we may not revisit the jury’s factual resolution
of the identity issue. See State v. Strickland, 885 S.W.2d 85, 87-88 (Tenn. Crim. App. 1993)
(question of identity is issue of fact for jury’s determination; testimony of victim alone is sufficient
to support a conviction).

                                                           II

               The defendant also challenges the trial court’s admission of evidence of arrests for
other crimes. This complaint relates to evidence of the defendant’s prior arrests and of law
enforcement’s familiarity with him by the name Eddie Murphy. This issue was not raised in the
motion for new trial, and therefore, appellate consideration of it as a matter of right in this direct
appeal is waived. See Tenn. R. App. P. 3(e). However, the defendant asks us to address it as plain
error.

                 Several aspects of the trial are relevant to this issue. First, during the state’s case-in-
chief, Officer Demetrios Vakertzis identified the defendant as the individual he arrested for the
crimes on trial. The defense then inquired on cross-examination whether there was anyone else in
the courtroom whom the witness could have identified “as the person who robbed the victim.” The
officer testified that there was not. Then, the victim identified the defendant as the perpetrator of the
crimes, and the defense inquired on cross-examination whether there were any black males other
than the defendant in the courtroom who were not in uniform. The victim replied that there were
not.


        1
            The record is silent on the issue of whether any of the victim’s money was recovered.

                                                          -3-
                The next witness was Officer Michael J. Clark. On direct examination, he was asked
what he did once he was assigned the case, to which he responded, “Well, as soon as I was assigned
the case, I was familiar with a person that I had dealt with in the past by the name of John Thomas
Brown that had also been arrested under the name of –.” At this point, the defense moved for a
mistrial, and the court denied the motion. Then, during cross-examination of Officer Clark, the
defense inquired whether the witness knew anyone other than the defendant and the famous
entertainer who used the name Eddie Murphy. Officer Clark replied that he did not.

              At this point, the state moved to introduce evidence of the method by which the
defendant was developed as a suspect. The state sought to introduce evidence of other crimes in
which the perpetrator told out-of-town tourists that he was Eddie Murphy and then proceeded to rob
them. The prosecutor argued that this evidence of a common “MO” would explain why the
defendant was developed as a suspect. The state also argued that this evidence was responsive to
alleged innuendo in defense questioning that the arrest of the defendant had racial overtones.2

                 The court ruled that once the defense “opened the door” by inquiring whether Officer
Clark knew anyone who used the name Eddie Murphy other than the defendant and the famous
entertainer, the state was entitled to explain how Officer Clark knew the defendant as Eddie Murphy.
The court then proceeded to conduct a jury-out hearing to determine the limits of such evidence.
Ultimately, the trial court limited the state to evidence that Officer Clark knew the defendant as
Eddie Murphy from prior contact on several occasions,3 that the defendant was proud of his
resemblance to the famous entertainer, and that the defendant frequented the area in which the crimes
on trial occurred. The court excluded evidence that the defendant earned the nickname Eddie
Murphy in prison, that the defendant had committed other crimes with the same modus operandi,
and that the defendant chose out-of-town victims because they would not come back to Memphis
to testify.

                Officer Clark then testified before the jury that he was familiar with the defendant as
Eddie Murphy from at least two contacts prior to his investigation of the robbery on trial. The
defendant had boasted to this witness about using the name Eddie Murphy. Clark knew that the
defendant frequented the bus station, which was about one-half a block from the location where the
crimes took place. For these reasons, when Officer Clark received Thomas’ description of the
perpetrator, he suspected the defendant.

               The defendant claims that the evidence was inadmissible under Tennessee Rule of
Evidence 404. He argues that the admission of evidence of his “arrests for other crimes” did nothing
to advance the state’s evidence on the issue of identity and that the propensity aspect of the evidence
caused any probative value to be substantially outweighed by the danger of unfair prejudice.


        2
          We presume the prosecutor was referring to the questioning of Officer Vakertzis and Sean Thomas whether
anyone in the courtroo m other than the defenda nt could be the perpetr ator of the crim e.

        3
            The trial court prohibited the state from developing evid ence that the prior “contacts” were, in fact, arrests.

                                                             -4-
               Normally, the fact that a police officer had prior “contacts” with a defendant would
not per se suggest the defendant’s bad character. However, in the present case, we analyze Officer
Clark’s testimony about two prior contacts with the defendant as a Rule 404(b) issue because the jury
had previously been told that some of Officer Clark’s prior contacts with the defendant resulted in
the defendant being arrested. Additionally, in the later testimony, the officer specified that his
familiarity with the defendant was based upon, not one, but two prior contacts. Given the
besmirching nature of the prior “contact” testimony in the context of this case, we review the issue
as a claimed plain error under the Rule 404(b) rubric.

                 Rule 404(b) provides that evidence of a defendant's prior crimes, wrongs or acts is
not admissible to prove that he committed the crime in question. Tenn. R. Evid. 404(b). The
rationale underlying the general rule is that admission of such evidence carries with it the inherent
risk of the jury convicting the defendant of a crime based upon his bad character or propensity to
commit a crime, rather than the conviction resting upon the strength of the evidence. State v.
Rickman, 876 S.W.2d 824, 828 (Tenn. 1994). The risk is greater when the defendant's prior bad acts
are similar to the crime for which the defendant is on trial. Id.; see also State v. McCary, 922 S.W.2d
511, 514 (Tenn. 1996). Nevertheless, evidence of a defendant's prior crimes, wrongs or acts may be
admissible where it is probative of material issues other than conduct conforming with a character
trait. Tenn. R. Evid. 404(b). Such material issues include “identity (including motive and common
scheme or plan), intent, or rebuttal of accident or mistake.” Tenn R. Evid. 404, Advisory Comm’n
Comments. In order for such evidence to be admitted, the rule specifies three prerequisites:

       (1)     The court upon request must hold a hearing outside the jury's presence;
       (2)     The court must determine that a material issue exists other than conduct conforming
               with a character trait and must upon request state on the record the material issue, the
               ruling, and the reasons for admitting the evidence; and,
       (3)     The court must exclude the evidence if its probative value is outweighed by the
               danger of unfair prejudice.

Tenn. R. Evid. 404(b). A fourth prerequisite to admission is that the court find by clear and
convincing evidence that the defendant committed the other crime. Tenn. R. Evid. 404, Advisory
Comm'n Comments; State v. DuBose, 953 S.W.2d 649, 654 (Tenn. 1997); State v. Parton, 694
S.W.2d 299, 303 (Tenn. 1985).

               In reviewing a trial court's decision to admit or exclude evidence, an appellate court
may disturb the lower court's ruling only if there has been an abuse of discretion. DuBose, 953
S.W.2d at 652; State v. Baker, 785 S.W.2d 132, 134 (Tenn. Crim. App. 1980). Where the trial court
has been called to pass upon the admissibility of evidence of other crimes, wrongs or acts under Rule
404(b), its determination is entitled to deference when it has substantially complied with the
procedural requisites of Rule 404(b). See DuBose, 953 S.W.2d at 652.

               The evidence of Officer Clark’s familiarity with the defendant as Eddie Murphy, the
defendant’s pride in that nickname, and the defendant’s frequenting the bus station are all evidence


                                                 -5-
probative of the defendant’s identity. The issue of identity was a material one, made more so by the
defense questioning of Officer Vakertzis and Sean Thomas about their in-court identifications of the
defendant and by the questioning of Officer Clark about other individuals who used the name Eddie
Murphy. 4 With respect to prejudice, the evidence did not directly inculpate the defendant in prior
criminal activity. At most, one would have to infer that Officer Clark’s prior “contacts” and
familiarity with the defendant were related to some unspecified prior criminal acts. Further, the court
excluded evidence of other robberies in which the perpetrator identified himself as Eddie Murphy,
thereby greatly limiting the possibility of misuse of the evidence as an indicator of propensity to
commit the crimes on trial. Although we see nothing in the record to show that the trial court
determined by clear and convincing evidence that the defendant used and was proud of the name
Eddie Murphy and that he frequented the area of the bus station, the defendant has raised no
challenge to the veracity of those facts. See Tenn. R. Evid. 404, Advisory Comm'n Comment;
DuBose, 953 S.W.2d at 654; Parton, 694 S.W.2d at 303. We believe there has been "substantial
compliance" with the procedural prerequisites of the rule. See DuBose, 953 S.W.2d at 652. As a
result, the trial court’s determination is entitled to deference. Id.

                Overall, given the deference to be afforded the trial court, we see no abuse of
discretion in the admission of this evidence. It follows that there was no plain error entitling the
defendant to relief.

                  The judgment of the trial court is affirmed.



                                                                 ___________________________________
                                                                 JAMES CURWOOD WITT, JR., JUDGE




         4
           The defendant contends in his brief that the evidence should not have been admitted because “[t]here was
ample evidence presented to the jury regarding the identity of the accused.” Although we acknowledge that evidence
of other crime s should be excluded where iden tity has already b een “clearly made ou t,” State v. Bunch, 605 S.W.2d 227,
230 (Tenn. 1980) (quoting Warren v. State, 156 S.W.2d 416 , 419 (Tenn. 1941)), in the present case identity was very
much at issue, particularly given defense questioning detailed above.

                                                           -6-
