                                                                                           07/15/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                 April 29, 2020 Session

                  STATE OF TENNESSEE v. TONY LYNN NIX

                  Appeal from the Criminal Court for Knox County
                         No. 108293 G. Scott Green, Judge
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                           No. E2019-00415-CCA-R3-CD
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A Knox County jury convicted the defendant, Tony Lynn Nix, of aggravated robbery, and
the trial court imposed a sentence of nine years in confinement. On appeal, the defendant
challenges the sufficiency of the evidence to support his conviction and requests plain error
review of improper statements by the prosecutor. After reviewing the record and
considering the applicable law, we affirm the judgment of the trial court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which TIMOTHY L. EASTER, J.,
joined. NORMA MCGEE OGLE, J., concurs in results only.

Mark E. Stephens, District Public Defender; John Halstead, Assistant Public Defender, for
the appellant, Tony Lynn Nix.

Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Senior
Assistant Attorney General; Charme P. Allen, District Attorney General; and Leslie
Nassios, Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                              Facts and Procedural History

      On March 19, 2016, Charles Hobbs was working at the All Star Market on
Maynardville Highway. The defendant, who frequented the market with his wife, came in
and asked Mr. Hobbs if he could borrow some money. Mr. Hobbs refused, and the
defendant left the market.
       However, the defendant returned later that afternoon, smelling of alcohol. The
defendant walked to the back of the market where the cash register was located and placed
a gun against Mr. Hobbs’s back. Because Mr. Hobbs was familiar with guns, he believed
the defendant’s gun, which felt heavy and metallic, was a .38 caliber revolver. The
defendant then demanded Mr. Hobbs give him the money in the cash register. When Mr.
Hobbs reasoned with the defendant that he didn’t really want to do this, the defendant told
Mr. Hobbs that he was not leaving without the money and that he would “cut [Mr. Hobbs]
in two if [he didn’t] open [the cash register].” Mr. Hobbs tried to turn around to face the
defendant, but the defendant “put his hand around [Mr. Hobbs’s] shoulders and pushed
[him] back.” Because Mr. Hobbs was afraid the defendant would shoot him, he gave the
defendant the money from the cash register, approximately $300. Afterward, the defendant
told Mr. Hobbs to get down on the floor and threatened to “get [him]” if he got up.

        After the defendant left the store, Mr. Hobbs walked outside and saw the defendant’s
truck pulling out of the parking lot and onto the highway. The defendant’s wife was
driving, and the defendant was in the passenger seat. Scott and Amy Coffey, who had
briefly walked into the store during the robbery, were also outside and assisted Mr. Hobbs
in calling 911.

      Officer Rachel Sandlin with the Knox County Sheriff’s Office was the initial
responding officer. Officer Sandlin and Officer Sandy Campbell processed the scene
which included photographing the store, processing for fingerprints, and collecting
evidence.

       Detective Tim Sellers with the Knox County Sheriff’s Office was also called to the
scene. After arriving on the scene, Detective Sellers spoke with Mr. Hobbs and Mr. and
Ms. Coffey. Because the witnesses knew the defendant, Detective Sellers was able to
locate him within a few days of the robbery. Following the defendant’s arrest, he gave a
statement to police in which he admitted to robbing the market but denied using a real gun.
Instead, the defendant claimed he used his nephew’s cap gun. The defendant told the
detective where he tossed the toy gun, and Detective Sellers searched three times in an
attempt to locate it. During the third search, the defendant accompanied Detective Sellers.
However, because the defendant merely wandered around the area and did not appear to
know exactly where to look, the gun was never located.

       At trial, the State called Charles Hobbs, Officer Rachel Sandlin, and Detective Tim
Sellers as witnesses, and all rendered testimony consistent with the foregoing. In addition,
the State submitted footage of the robbery taken from the surveillance cameras in the
market. On cross-examination, Mr. Hobbs agreed the defendant did not attempt to disguise
himself during the robbery. Regarding the possibility that the defendant’s gun may have

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been a cap gun, Mr. Hobbs testified the defendant’s gun did not appear to have a “hole in
it” and looked like a handgun.

        The defendant declined to present evidence. Following deliberations, the jury found
the defendant guilty of aggravated robbery, and the trial court subsequently sentenced the
defendant to nine years in confinement. The defendant filed a motion for new trial which
the trial court denied. This timely appeal followed.

                                          Analysis

        On appeal, the defendant argues the evidence at trial was insufficient to support his
conviction. The defendant also requests plain error review of several statements made by
the prosecutor during closing and rebuttal argument. The State contends that the evidence
is sufficient and that the prosecutor’s closing and rebuttal arguments did not create any
plain error. We agree with the State.

I.     Sufficiency

        The defendant argues the evidence at trial is insufficient to support his aggravated
robbery conviction. Specifically, the defendant contends the proof failed to show the
robbery was accomplished with a deadly weapon, and Mr. Hobbs’s testimony was not
supported by the surveillance video. The State contends Mr. Hobbs’s testimony
established the defendant used a firearm to accomplish the robbery, and the surveillance
video does not demonstrate that his testimony “cannot be true, is inherently unbelievable,
or is opposed to natural laws.”

        When the sufficiency of the 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. 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 has stated the following rationale for this rule:

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       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, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523
(Tenn. 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).

       As charged in this case, aggravated robbery is “[a]ccomplished with a deadly
weapon.” Tenn. Code Ann. § 39-13-402(a)(1). “Robbery is the intentional or knowing
theft of property from the person of another by violence or putting the person in fear.”
Tenn. Code Ann. § 39-13-401(a). “A person commits theft of property if, with intent to
deprive the owner of property, the person knowingly obtains or exercises control over the
property without the owner’s effective consent.” Tenn. Code Ann. § 39-14-103(a).

       Viewed in the light most favorable to the State, Mr. Hobbs testified the defendant
approached him at the cash register and placed a gun against his back. Mr. Hobbs was
familiar with guns and believed the defendant’s gun felt and looked like a .38 caliber
revolver. The defendant demanded the money in the cash register and threatened to “cut
[Mr. Hobbs] in two” if he did not comply with the defendant’s demands. Because Mr.
Hobbs was afraid the defendant would shoot him, he gave the defendant the money from
the cash register. The defendant then forced Mr. Hobbs onto the floor and threatened to
“get [him]” if he got up. Based on this evidence, a rational jury could find aggravated
robbery beyond a reasonable doubt.

        The defendant, citing the “physical facts rule,” argues that Mr. Hobbs’s testimony
regarding the gun used in the robbery was inconsistent with the surveillance videos and
that, therefore, Mr. Hobbs’s testimony should be disregarded. The physical facts rule is
“‘the accepted proposition that in cases where the testimony of a witness is entirely
irreconcilable with the physical evidence, the testimony can be disregarded.’” State v.
Allen, 259 S.W.3d 671, 679 (Tenn. 2008) (quoting State v. Hornsby, 858 S.W.2d 892, 894
(Tenn. 1993)). If a witness’s testimony “cannot possibly be true, is inherently
unbelievable, or is opposed to natural laws, courts can declare the testimony incredible as
a matter of law and decline to consider it.” Id. (quotation omitted). The physical facts rule
is a power “that should be used sparingly.” Hornsby, 858 S.W.2d at 895. If the testimony
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“is capable of different interpretations, the matter should be left for the jury to decide as
the sole arbiter of credibility.” Id. The determination of whether there are inconsistencies
in testimony, the reconciliation of conflicts in testimony, and the determination of how this
might affect a witness’s credibility, are within the province of the jury. Id.

        The defendant claims Mr. Hobbs’s testimony regarding the defendant’s gun was
incredible; however, as previously noted, determining questions of the credibility of the
witnesses and inconsistencies in testimony are within the province of the jury.
Furthermore, we have reviewed both the surveillance video and the screenshots from the
video and conclude they fully support Mr. Hobbs’s testimony. Therefore, the physical
facts rule is inapplicable, and the defendant is not entitled to relief on this issue.

B.     Improper Closing

       The defendant argues the prosecutor made several statements during closing and
rebuttal argument which constituted misconduct, prejudicing the outcome of the trial.
Specifically, because there is a “legitimate question . . . of whether an actual deadly weapon
was used,” the defendant contends the prosecutor erred in telling the jury that the defendant
could be convicted even if a deadly weapon was not used during the robbery because the
facts of the robbery were otherwise “aggravated.”                   Although the defendant
contemporaneously objected to the statements, he acknowledges he failed to request a
mistrial or ask the trial court to take any curative measures and, therefore, requests review
under the plain error doctrine. The State contends the defendant is not entitled to relief
under the plain error doctrine.

       Before an error may be recognized, it “must be ‘plain’ and it must affect a
‘substantial right’ of the accused.” State v. Adkisson, 899 S.W.2d 626, 639 (Tenn. Crim.
App. 1994). “An error would have to [be] especially egregious in nature, striking at the
very heart of the fairness of the judicial proceeding, to rise to the level of plain error.” State
v. Page, 184 S.W.3d 223, 231 (Tenn. 2006). In State v. Smith, our Supreme Court adopted
Adkisson’s five-factor test for determining whether an error should be recognized as plain:

       (a) The record must clearly establish what occurred in the trial court;

       (b) A clear and unequivocal rule of law must have been breached;

       (c) A substantial right of the accused must have been adversely affected;

       (d) The accused did not waive the issue for tactical reasons; and

       (e) Consideration of the error is “necessary to do substantial justice.”
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24 S.W.3d 274, 282-83 (Tenn. 2000) (quoting Adkisson, 899 S.W.2d at 641-42). “[A]ll
five factors must be established by the record before this Court will recognize the existence
of plain error, and complete consideration of all the factors is not necessary when it is clear
from the record that at least one of the factors cannot be established.” Id. at 283.

       The established test for determining whether prosecutorial error based on improper
comments amounts to reversible error is whether the conduct was so improper, or the
argument so inflammatory, that it affected the verdict. See State v. Reid, 164 S.W.3d 286,
344 (Tenn. 2005); State v. Goltz, 111 S.W.3d 1, 5 (Tenn. Crim. App. 2003). In assessing
whether comments made by the prosecution are so inflammatory or improper as to affect
the verdict, the court must consider five factors:

       (1) The conduct complained of viewed in the context and the light of the facts
       and circumstances of the case;

       (2) The curative measures undertaken by the court and the prosecution;

       (3) The intent of the prosecutor in making the improper statements;

       (4) The cumulative effect of the improper alleged conduct and any other
       errors in the record; and

       (5) The relative strength or weakness of the case.

Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976); see also Goltz, 111 S.W.3d
at 5-6.

       During her closing argument, the prosecutor stated:

              The only thing he didn’t admit was that he had a gun. And he told the
       police that he had what he referred to as a little cap pistol. But the State
       submits that that doesn’t really matter. And when you hear the Court’s
       instruction, and I’m going to go over this a little bit in the rebuttal argument,
       you will see that under the law it doesn’t really matter.

              And we believe that the proof has shown you through Mr. Hobbs’s
       testimony that this was, in fact, a gun. It was what Mr. Hobbs recognized to
       be either a .38 or a .32 revolver. He told you from the witness stand that he
       had some knowledge of guns. He knew what a gun was. He talked to you
       about the weight and how it felt in his back. He talked to you about what he
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       saw and what he felt. And he described to you his fear and, you know, his
       reasonable fear of harm. He thought he was going to die.

              And I want you to remember what he said to you, the remarks that
       [the defendant] made to him as he accomplished this robbery, how he
       threatened him, threatened to shoot him, cut him in two.

       ...

              And I believe when [trial counsel] made his opening statement, he told
       you that this was something less. He wanted you to consider something less.
       That this wasn’t aggravated robbery, this was just a robbery. And I want you
       to think about what you heard from Mr. – from Charlie. It was aggravated
       to him. It scared him. It terrified him.

       ...

             This was a gun. Charlie knew it. Charlie saw it. Charlie felt it. And
       we’re asking you to convict [the defendant] of what he did. He committed
       an aggravated robbery. Not just a robbery, an aggravated robbery.

       During rebuttal argument, the prosecutor then made the following statements:

               You’re going to hear the [c]ourt’s instructions and this is what deadly
       weapon is. And it doesn’t even have to be a firearm, okay. It doesn’t have
       to be a real gun. It doesn’t have to be an operable gun. It doesn’t have to be
       a loaded gun. It doesn’t have to be a gun. It is a firearm or anything
       manifestly designed, made, or adapted. Okay. Adapted for the purpose of
       inflicting death or serious bodily injury. Or anything that in a manner of its
       use or intended use is capable of causing death or serious bodily injury.

             Okay. Well, you can hurt somebody with a hard metal object. You
       can beat someone to death.

       Here, consideration of the prosecutor’s statements is not necessary to do substantial
justice in light of the overwhelming evidence submitted at trial. Mr. Hobbs testified he
was standing at the cash register when the defendant placed a gun against his back and
demanded money. The gun felt like a .38 caliber revolver, and the defendant threatened to
shoot Mr. Hobbs if he did not comply with his demands. Fearing for his life, Mr. Hobbs
gave the defendant the money from the cash register. Surveillance video of the robbery
fully supports Mr. Hobbs’s testimony. Moreover, the trial court properly instructed the
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jury on the law concerning the charged offense -- the defendant accomplished the robbery
with a deadly weapon. The trial court also correctly defined deadly weapon for the jury –
“a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting
death or serious bodily injury, or anything that in the manner of its use or intended use is
capable of causing death or serious bodily injury.” Finally, the trial court instructed the
jury to follow the law, not the opinions of the attorneys, and we presume the jury followed
those instructions. State v. Robinson, 146 S.W.3d 469, 494 (Tenn. 2004). Accordingly,
we conclude the defendant is not entitled to plain error review on this issue; therefore, the
defendant is not entitled to relief on this issue.

                                        Conclusion

        Based upon the foregoing authorities and reasoning, the judgment of the trial court
is affirmed.




                                              ____________________________________
                                               J. ROSS DYER, JUDGE




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