        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs December 3, 2002

                    STATE OF TENNESSEE v. MARCUS WEBB

                 Direct Appeal from the Criminal Court for Shelby County
                    Nos. 01-01362, 63   Carolyn Wade Blackett, Judge



                   No. W2002-00614-CCA-R3-CD - Filed January 29, 2003


The defendant, Marcus Webb, was convicted by a Shelby County jury of two counts of aggravated
robbery. On appeal, he challenges the sufficiency of the evidence and the trial court’s jury
instruction defining the mens rea of “knowing.” We affirm the judgment of the trial court.

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

JOE G. RILEY, J., delivered the opinion of the court, in which THOMAS T. WOODA LL and ALAN E.
GLENN, JJ., joined.

W. Gary Ball and Jane Sturdivant (at trial), and William D. Massey and C. Michael Robbins (on
appeal), Memphis, Tennessee, for the appellant, Marcus Webb.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Glen C. Baity, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

        On September 21, 2000, shortly after midnight, Wendy’s employees Kesha Paige and Brad
Fifer were closing the restaurant located on Shelby Drive in Memphis. As they walked out the back
door, a man wielding a silver pistol forced them back inside. The perpetrator was wearing a
stocking cap over his head and face and wore dark clothing. The perpetrator made Paige lie on the
floor in the restaurant’s office, while Fifer was forced to open the safe and put all the money in a
blue backpack furnished by the perpetrator. The perpetrator exited the restaurant with
approximately $3,000 in bills and coins in the backpack.

       Deputy Michael Norton of the Shelby County Sheriff’s Department was patrolling Shelby
Drive about this time. He observed the defendant walking across the street, and it appeared the
defendant was coming from Wendy’s. The defendant was dressed in dark clothes, had a blue
backpack and was wearing brown gloves. Unaware of the robbery at this time, Deputy Norton asked
the defendant where he was going. The defendant replied his car had quit around the corner, and
he tried to get power steering fluid at Mapco, which the evidence showed was located on the same
street as Wendy’s several hundred yards away. The defendant stated Mapco was closed. Deputy
Norton became suspicious; he knew Mapco was open all night. The defendant informed Deputy
Norton that his driver’s license was suspended, and he gave the license to Deputy Norton. Deputy
Norton retained the license and followed the defendant to his car, which was parked in a residential
area just around the corner. The defendant placed the backpack in the defendant’s car.

        The defendant opened the trunk of his car where it appeared to Deputy Norton that the
defendant got a funnel and “some kind of liquid.” The defendant then opened the hood of his car
and appeared to pour something through the funnel, although Deputy Norton did not believe he
actually poured anything into the automobile. Deputy Norton informed the defendant that Mapco
was open all night, and he would follow him to Mapco where the defendant could purchase more
fluid.

       The defendant drove toward Mapco, and Deputy Norton followed some distance behind.
As Deputy Norton approached a stop sign, he observed on the ground what appeared to be the same
blue backpack carried by the defendant. Deputy Norton placed the backpack in the patrol car
without looking in it.

         While en route to Mapco, Deputy Norton observed the commotion at Wendy’s and learned
of the robbery. He proceeded to Mapco where he took the defendant into custody. The defendant
had a pistol magazine clip in his pocket, but the officer was unable to find a weapon. According to
Deputy Norton, the defendant denied that he had a pistol and did not inform him of the location of
a pistol that used the magazine clip. Deputy Norton opened the backpack he had retrieved and found
numerous bills and coins in it.

        John R. Bell, a Mapco employee, testified that he first saw the defendant at approximately
1:00 a.m. when the defendant asked for change to use the pay phone. The defendant returned a short
time later, and Bell encountered him reaching into a garbage can. It appeared to Bell the defendant
was holding clothes or some kind of “cloth item” in his hand. The defendant immediately handed
Bell $2.00, asked for gas and proceeded around the side of the building. According to Bell, the
defendant did not purchase any power steering fluid. Bell testified the defendant seemed nervous
on both occasions while at Mapco.

        Deputy Norton then appeared at Mapco and took the defendant into custody. Subsequently,
the defendant’s brown glove was found in the trash can and a sweater shirt was found at the corner
of the Mapco store. Deputy Norton identified the shirt as the one worn by the defendant.

        Montel Tidwell lived in the residence near Shelby Drive where the defendant parked his car.
She observed the car parked in front of her residence for a substantial period of time and became
suspicious. Later, she observed the deputy at the location with the defendant and observed the
defendant throw something out of his car when he drove off. Subsequently, a stocking cap was
found at this location. Kesha Paige stated the stocking cap appeared to be similar to the one worn
by the perpetrator.


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        Shortly after the defendant’s apprehension, Kesha Paige was shown the defendant’s driver’s
identification photo. She did not believe it looked like the perpetrator, but also testified the picture
did not look like the defendant as he appeared in the courtroom. However, Paige subsequently
picked the defendant from a photo lineup at the police department, saying the photo “looks like” the
perpetrator. She testified that although the defendant’s face was mostly covered, she could observe
that he had “fat jaws.”

        Brad Fifer testified for the defense. He testified that although he picked the defendant’s
photo in a photo lineup after being told by the officers the defendant was the perpetrator, the
perpetrator did not match the physical appearance of the defendant. Fifer believed the perpetrator
was taller than the defendant and had a bigger “belly.” During cross-examination the state sought
to impeach Fifer. Fifer insisted that he did not know the defendant, although the defendant
apparently lived in the same neighborhood as Fifer’s mother.

          The defendant testified in his defense. He stated that he called his girlfriend from Mapco
during his first visit there and was en route to his girlfriend’s residence when he experienced the
power steering problem. He said that he parked the vehicle in the residential neighborhood;
however, contrary to Montel Tidwell’s testimony, he stated it was there for only a short time. He
said he walked back to Mapco to purchase the fluid; however, Mapco appeared closed. He stated
that he was returning to his automobile when he was stopped by the deputy. He denied that he had
a backpack in his possession and denied that the sweater shirt found at Mapco belonged to him.
Contrary to Bell’s testimony, the defendant contended he indeed bought fluid at the Mapco prior to
his arrest. He conceded throwing the glove in the garbage can, explaining the glove had fluid all
over it. The defendant testified the magazine clip went with a gun he had recently purchased, and
the gun was located at his residence. According to the defendant, he informed the officers of this,
but they did not go to his residence to secure the gun. The gun was not produced by the defendant
at trial, nor did the defendant’s girlfriend testify.


                              SUFFICIENCY OF THE EVIDENCE

       The defendant contends the evidence against him is circumstantial and is legally insufficient
to support the guilty verdicts. We disagree.

        Although the evidence of the defendant’s guilt is circumstantial in nature, circumstantial
evidence alone may be sufficient to support a conviction. State v. Tharpe, 726 S.W.2d 896, 899-900
(Tenn. 1987); State v. Gregory, 862 S.W.2d 574, 577 (Tenn. Crim. App. 1993). However, in order
for this to occur, the circumstantial evidence must be not only consistent with the guilt of the
accused but it must also be inconsistent with innocence and must exclude every other reasonable
theory or hypothesis except that of guilt. Tharpe, 726 S.W.2d at 900. In addition, “it must establish
such a certainty of guilt of the accused as to convince the mind beyond a reasonable doubt that [the
defendant] is the one who committed the crime.” Id. (quoting Pruitt v. State, 460 S.W.2d 385, 390
(Tenn. Crim. App. 1970)).



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        While following the above guidelines, this court must remember that the jury decides the
weight to be given to circumstantial evidence and “[t]he inferences to be drawn from such evidence,
and the extent to which the circumstances are consistent with guilt and inconsistent with innocence
are questions primarily for the jury.” Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958); see also
Gregory, 862 S.W.2d at 577; State v. Coury, 697 S.W.2d 373, 377 (Tenn. Crim. App. 1985); Pruitt,
460 S.W.2d at 391.

        The sole issue raised by the defendant as to the sufficiency of the evidence is whether the
defendant was proven to be the perpetrator. Kesha Paige was able to identify certain physical
features of the perpetrator although he had the stocking cap over most of his face. She identified the
defendant’s photo as looking like the perpetrator. She described the backpack used by the
perpetrator and identified the stocking cap found near the residence as being similar to the one worn
by the perpetrator.

        Deputy Norton observed the defendant shortly after the robbery crossing the street near
Wendy’s in clothing similar to that described by Paige. The defendant possessed a blue backpack
which the deputy subsequently discovered by the road on the route driven by the defendant. The
backpack had numerous bills and coins in it. Deputy Norton identified the shirt found at the corner
of the Mapco store as the one previously worn by the defendant. A magazine clip was found in the
defendant’s pocket.

       Although the defendant denied his participation in these offenses and produced testimony
from Brad Fifer who questioned whether the defendant’s appearance matched that of the perpetrator,
it was for the jury to determine whether the circumstances were consistent with guilt and
inconsistent with innocence. See Marable, 313 S.W.2d at 457. The evidence was sufficient to
support the jury’s verdict.


                                   “KNOWING” MENS REA

        Finally, the defendant contends the trial court erred in defining the “knowing” mens rea for
the offense of aggravated robbery. We envision no reversible error.

       The mens rea for robbery is either “intentional or knowing.” Tenn. Code Ann. § 39-13-
401(a). In its jury instructions, the trial court stated the following:

                       “Knowingly” means that a person acts knowingly with respect
               to the conduct or to circumstances surrounding the conduct when the
               person is aware of the nature of the conduct or that the circumstances
               exist. A person acts knowingly with respect to a result of the
               person’s conduct when the person is aware that the conduct is
               reasonably certain to cause the result.




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See Tenn. Code Ann. § 39-11-106(a)(20). The defendant contends aggravated robbery is a result-of-
conduct offense, and the jury instruction erroneously authorized the jury to find guilt based upon
the defendant’s awareness of the nature of his conduct or circumstances surrounding his conduct.

        The defendant relies upon State v. Page, 81 S.W.3d 781 (Tenn. Crim. App. 2002). In Page,
this court concluded second degree murder was a result-of-conduct offense. Id. at 783. We further
concluded that a jury instruction which authorized a conviction for this offense based upon the
defendant’s awareness of the nature of his conduct or circumstances surrounding his conduct was
erroneous. Id. We also concluded the error was not harmless because the crucial issue at trial was
the defendant’s mens rea. Id. at 789-90.

        Unlike murder, we do not consider robbery and aggravated robbery result-of-conduct
offenses. The knowing mens rea of robbery refers to the “knowing theft.” Tenn. Code Ann. § 39-
13-401(a). The knowing mens rea of theft refers to “knowingly obtain[ing] or exercis[ing] control
over the property.” Id. § 39-14-103. The focus of the proscribed conduct is not upon its result. See
State v. Tracy F. Leonard, No. M2001-00368-CCA-R3-CD, 2002 Tenn. Crim. App. LEXIS 737, at
*77 (Tenn. Crim. App. Aug. 28, 2002, at Nashville), perm. to app. denied (Tenn. Dec. 16, 2002).
Regardless, the issue at trial was identity, not the mens rea of the perpetrator. The defendant was
not prejudiced by the jury instruction. See Page, 81 S.W.3d at 789 (recognizing that a faulty mens
rea instruction will be harmless error in many homicide trials). This issue lacks merit.

       Based upon our review of the record, we affirm the judgment of the trial court.




                                                      JOE G. RILEY, JUDGE




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