             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON

                            SEPTEMBER 1997 SESSION
                                                         FILED
                                                         October 29, 1997

                                                         Cecil Crowson, Jr.
                                                         Appellate C ourt Clerk
STATE OF TENNESSEE,                 )
                                    )
                    APPELLEE,       )
                                    )          No. 02-C-01-9608-CC-00278
                                    )
                                    )          Madison County
                                    )
v.                                  )
                                    )          Whit Lafon, Judge
                                    )
                                    )          (Aggravated Robbery)
DEVON EUGENE SMITH,                 )
                                    )
                   APPELLANT.       )



FOR THE APPELLANT:                       FOR THE APPELLEE:

Thomas T. Woodall                        John Knox Walkup
Attorney at Law                          Attorney General & Reporter
P.O. Box 1075                            500 Charlotte Avenue
Dickson, TN 37056-1075                   Nashville, TN 37243-0497
(Appeal Only)
                                         Janis L. Turner
George Morton Googe                      Assistant Attorney General
District Public Defender                 450 James Robertson Parkway
227 Baltimore Street                     Nashville, TN 37243-0493
Jackson, TN 38301-6137
(Appeal Only)                            James G. Woodall
                                         District Attorney General
Jeffrey J. Mueller                       P.O. Box 2825
Assistant Public Defender                Jackson, TN 38302-2825
227 Baltimore Street
Jackson, TN 38301-6137                   James W. Thompson
(Trial Only)                             Assistant District Attorney General
                                         P.O. Box 2825
                                         Jackson, TN 38302-2825




OPINION FILED:____________________________


AFFIRMED


Joe B. Jones, Presiding Judge
                                   OPINION


         The appellant, Devon Eugene Smith (defendant), was convicted of aggravated

robbery, a Class B felony, by a jury of his peers. The trial court found that the defendant

was a standard offender and imposed a Range I sentence consisting of confinement for

ten (10) years in the Department of Correction. The defendant presents two issues for

review. He contends the evidence is insufficient to support his conviction and the sentence

imposed by the trial court is excessive. After a thorough review of the record, the briefs

submitted by the parties, and the law governing the issues presented for review, it is the

opinion of this court that the judgment of the trial court should be affirmed.

         On the afternoon of August 9, 1995, the defendant entered the Whitehall Foods

grocery. He was wearing a jacket, he had a cap on his head, he had the hood attached

to the jacket over the cap, and he was wearing either dark goggles or sunglasses. An

employee directed the assistant manager’s attention to the defendant. Both men thought

the defendant was dressed oddly for the month of August as it was hot outside. When the

assistant manager confronted the defendant, the defendant told him “[y]ou don’t have to

worry about anything. I’m not going to steal anything.”

         As the assistant manager walked away, the defendant called to him. When the

assistant manager turned around to face the defendant, the defendant had a pistol in his

hand. He told the assistant manager to “[c]ome here.” He then told the assistant manager

to “go to the office. You’re going to give me all the money in the safe.” The assistant

manager went to the office, opened the safe, and gave all the money and food stamps to

the defendant. Together they approached a cashier. The defendant told the assistant

manager to “[p]ut some more money in there,” referring to a sack he was holding. The

assistant manager placed the contents of the register in the bag. The defendant then told

the assistant manager to walk toward the rear of the store. The defendant then exited the

store.

         One cashier had seen the defendant in clubs, and the defendant, according to his

own admission, had been inside the store approximately five times. This cashier made an

identification of the defendant from a photographic spread. She also made a courtroom


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identification. The cashier testified the defendant’s nickname was “Milk.” The defendant

admitted this was his nickname. A second cashier made a courtroom identification of the

defendant.

       Officers obtained a search warrant to search the defendant’s residence. The pistol

the defendant used in the robbery was seized and subsequently identified by two

employees of the grocery. Also seized were $225 in cash, $205 in food stamps, and bill

receipts totaling more than $300, which were paid the morning the house was searched.

Food stamps were taken during the robbery.

       The defendant presented evidence that he had purchased food stamps from other

people including his aunt. He knew this was illegal and constituted a crime. The defendant

claimed he purchased the .38 automatic pistol when he was working for a security guard

service. He was interested in continuing his work with the guard service and possibly

pursuing a career in law enforcement. He also wanted the pistol to protect himself in the

neighborhood. There were several shootings, gang activity, and drug trafficking in the area

where he lived. The defendant testified he was employed on the date the robbery took

place. He also made money playing the keyboard in a band and serving as a disc jockey

in clubs.

       According to the defendant, his car was inoperable on the date in question. His

girlfriend called her cousin to take them to a Kroger store to shop. He stated he wanted

to go to a store that closed at 4:30 p.m. Due to the length of time spent at Kroger, he knew

he was late and would not be able get to the store before it closed. He denied he robbed

the Whitehall Foods on the date in question.



                                             I.



       The defendant contends the evidence contained in the record is insufficient, as a

matter of law, to support his conviction for aggravated robbery. He argues the assistant

manager and the stock person could not identify the defendant as the perpetrator of the

robbery. One of the cashiers could not identify the defendant while viewing a photographic

spread. Furthermore, the food stamps were not marked with the store’s stamp.



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       As can be seen from the foregoing statement of facts, the evidence is clearly

sufficient to support a finding by a rational trier of fact that the defendant was guilty of

aggravated robbery beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v.

Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The defendant intentionally

took the property of another and he accomplished this act by employing a deadly weapon,

a pistol. Tenn. Code Ann. §§ 39-13-401 and -402.

       It must be remembered that this court does not reweigh or reevaluate the evidence

when determining the sufficiency of the evidence. State v. Matthews, 805 S.W.2d 776, 779

(Tenn. Crim. App.), per. app. denied, (Tenn. 1990). Furthermore, this court may not

substitute its inferences for those drawn by the trier of fact from circumstantial evidence.

State v. Liakas, 199 Tenn. 298, 305, 286 S.W.2d 856, 859, cert. denied, 352 U.S. 845, 77

S.Ct. 39,1 L.Ed.2d 49 (1956). To the contrary, this court is required to afford the State of

Tennessee the strongest legitimate view of the evidence contained in the record as well

as all reasonable inferences which may be drawn from the evidence. State v. Cabbage,

571 S.W.2d 832, 833 (1978).

       Questions concerning the credibility of the witnesses, the weight and value to be

given the evidence, as well as all factual issues raised by the evidence are resolved by the

trier of fact, not this court. Cabbage, 571 S.W.2d at 835. In State v. Grace, 493 S.W.2d

474, 476 (Tenn. 1973), the supreme court said: “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.”

       This issue is without merit.



                                              II.



       When an accused challenges the length of a sentence, it is the duty of this Court

to conduct a de novo review on the record with a presumption that "the determinations

made by the court from which the appeal is taken are correct." Tenn. Code Ann. § 40-35-

401(d)(1990). This presumption is "conditioned upon the affirmative showing in the record

that the trial court considered the sentencing principles and all relevant facts and



                                                  4
circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The presumption

does not apply to the legal conclusions reached by the trial court in sentencing the accused

or the determinations made by the trial court which are predicated upon uncontroverted

facts. State v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App.), per. app. denied (Tenn.

1994). Also, the presumption does not apply when the trial court has failed to consider the

sentencing principles, the relevant facts, and the relevant circumstances. Ashby, 823

S.W.2d at 169.

       In this case, the trial court stated: “Let the Defendant stand, please. Mr. Devon

Eugene Smith, it’s the judgment of the Court that you serve 10 years in the penitentiary

for armed robbery.” During the hearing on the motion for a new trial, the following

occurred:


              MR. THOMPSON: Your Honor, the State filed enhancement
              factors and argued them during the sentencing hearing. Your
              Honor simply gave a sentence, but I submit Your Honor by
              implication relied upon the enhancement factors as filed by the
              State, and I would submit that we had enough enhancement
              factors filed where Your Honor would have been justified in
              giving him the maximum sentence. If Your Honor wants a
              copy of that --

              THE COURT: Let me see that to refresh the Court’s memory.

              MR. THOMPSON: Your Honor will recall, there were several
              people in the store, and he did have a gun.

              THE COURT: All right. Let the record show that the Court
              found the enhancement factors in this matter, one of which is,
              the offense involved more than one victim; another instance in
              that the Defendant possessed or employed a firearm or
              dangerous weapon; and third, the Defendant had no risk about
              committing a crime where the risk for human life was high.


Since the record does not establish the trial court followed the mandate set forth in Ashby,

this court must conduct a de novo review without a presumption that the findings of the trial

court were correct.

       The defendant has a history of criminal convictions and criminal behavior. Tenn.

Code Ann. § 40-35-114(1). He has been convicted of driving while his license was

suspended, driving without a license, driving while under the influence, and violating the

open container law. His criminal behavior entails criminal impersonation, carrying a

concealed weapon, and driving while his license was revoked. The defendant forfeited his

                                             5
bond on the latter three offenses. He made a judicial admission he purchased food

stamps from the recipient of the stamps knowing each purchase was a crime.

      The defendant did not hesitate about committing a crime where the risk to human

life was high. Tenn. Code Ann. § 40-35-114(10). As a general rule, this factor does not

apply in aggravated robbery cases. State v. King, 905 S.W.2d 207, 213 (Tenn. Crim. App.

1995). However, this court has recognized this factor may be applicable if someone other

than the victim is placed at risk. State v. Hicks, 868 S.W.2d 729, 732 (Tenn. Crim. App.

1993). In this case, several individuals were at risk. There were two cashiers who were

present inside the store during the course of the robbery. The assistant manager took

money from a cash register as one of the cashiers stood in the vicinity where the defendant

was brandishing his weapon. Given these circumstances, this enhancement factor may

be used to enhance the sentence within the appropriate range.

      The use of the weapon was an element of the offense. Tenn. Code Ann. § 40-35-

114(9).

      Both of these factors, factors (1) and (10), are entitled to great weight. There were

no mitigating factors supported by the evidence. Therefore, a sentence of ten (10) years

was warranted for the offense committed by the defendant.

       This issue is without merit.




                                      ____________________________________________
                                             JOE B. JONES, PRESIDING JUDGE


CONCUR:



______________________________________
       DAVID H. WELLES, JUDGE



______________________________________
        JOE G. RILEY, JUDGE




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