         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs July 12, 2006

              STATE OF TENNESSEE v. ZACHARY V. HENNING

                    Appeal from the Circuit Court for Lauderdale County
                        No. 7720-B Joseph H. Walker, III, Judge



                  No. W2005-00269-CCA-R3-CD - Filed February 23, 2007


The defendant, Zachary V. Henning, was convicted at a jury trial in Lauderdale County Circuit Court
of aggravated robbery, aggravated assault, and theft of property valued between $1,000 and $10.000.
He was sentenced, as a Range I offender, to 10 years for aggravated robbery, three years for
aggravated assault, and two years for theft of property. The trial court merged the conviction of
aggravated assault with the aggravated robbery conviction and imposed the theft sentence to run
concurrently with that for aggravated robbery, for an effective sentence of 10 years. On appeal, the
defendant challenges the sufficiency of the convicting evidence and complains that his sentence is
excessive. Upon our review of the record and the parties’ briefs, we conclude that the evidence is
sufficient to support the jury’s guilty verdicts but that multiple convictions for aggravated robbery
and theft violate double jeopardy protections. Accordingly, the defendant’s conviction judgments
for aggravated assault and theft are vacated, and the jury’s “guilty verdict” for the theft is merged
into the judgment of conviction of aggravated robbery. The defendant’s aggravated robbery sentence
is affirmed, and we remand solely for the correction and entry of an appropriate judgment consistent
with this opinion.

          Tenn. R. App. P. 3; Judgments of the Circuit Court are Vacated in Part;
                                    Affirmed in Part.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which JERRY L. SMITH and
JOHN EVERETT WILLIAMS, JJ., joined.

Gary F. Antrican, District Public Defender; and Kari I. Weber and Julie K. Pillow, Assistant District
Public Defenders, for the Appellant, Zachary V. Henning.

Robert E. Cooper, Jr., Attorney General & Reporter; Cameron L. Hyder, Assistant Attorney General;
Elizabeth T. Rice, District Attorney General; and Tracey A. Brewer-Walker, Assistant District
Attorney General, for the Appellee, State of Tennessee.
                                            OPINION

                This case arises from the December 4, 2004 robbery and assault of Lynnwood
Shoemake, the owner of Lynnwood’s Market located at 310 Eastland Avenue in Ripley. The proof
at trial showed that Mr. Shoemake closed his store on the evening of December 4 at approximately
9:15 p.m. As he approached his truck, which was parked near the front door, two men walked
around the corner of the store near a drink machine and approached him. One of the men pointed
a gun at Mr. Shoemake and ordered him to go back inside the store. When Mr. Shoemake did not
respond, the gunman struck him on the head causing Mr. Shoemake to fall to the ground. Mr.
Shoemake’s reading glasses fell off, and he testified, “Blood was shooting out of my head, all over
the sidewalk.” Afraid for his life, Mr. Shoemake then unlocked the store door, and the three men
went inside where the gunman ordered Mr. Shoemake to open the market’s safe. The entry activated
the store’s alarm system making the gunman “real nervous” and “just panicking almost.” Mr.
Shoemake opened the safe, and the men grabbed two bags containing approximately $4,700 and fled.

                At trial, Mr. Shoemake described his assailant as a young, slender black male. Even
though the assailant “had his face covered with some kind of a mask,” Mr. Shoemake testified that
the assailant’s eyes were quite distinctive. Mr. Shoemake said he had a clear view of the eyes when
the assailant first approached him and “got right in [Mr. Shoemake’s] face.” Mr. Shoemake
provided a courtroom identification of the defendant as the individual who assaulted him with the
gun.

               Bobby Gause, the man who accompanied the defendant that evening and who had
been indicted as a co-defendant testified for the State. Gause said that he met the defendant that
evening near Lynnwood’s Market. The defendant was wearing an “old coat and a bandanna,” and
Gause was dressed in a “red and black hoodie.” Gause testified that he and the defendant
intentionally waited until the store was closed, and when Mr. Shoemake walked toward his truck,
the defendant “ran up to Mr. [Shoemake] before [Gause] did, and when [Gause] started walking
towards [Mr. Shoemake], [the defendant] struck Mr. [Shoemake] in the head.” Gause explained that
the defendant struck Mr. Shoemake with a gray pistol, and Gause denied knowing that the defendant
intended to assault Mr. Shoemake.

               Mr. Shoemake unlocked the market’s door, and Gause testified that he and the
defendant followed Mr. Shoemake inside the market. Mr. Shoemake opened the safe, as ordered,
and Gause said he and the defendant grabbed the money bags, later “split the money,” and “threw
the checks [inside the money bags] in the garbage.”

                Gause admitted that he had pleaded guilty to aggravated robbery, aggravated assault,
and theft of property over $1,000. He denied “receiv[ing] any deals from the State” in exchange for
his testimony against the defendant. Gause also admitted that he had prior convictions for theft and
possession of a firearm. Lieutenant Sanders interviewed Gause three times following his arrest.
Gause admitted that he lied to Lieutenant Sanders during the first two interviews; during those
interviews Gause denied involvement in the robbery and provided the names of other individuals.


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The third time, Gause told the officer the truth because he “just wanted to go on and get it over
with.”

               During his trial testimony, Gause mentioned that another individual, Tony Currie, had
been present when he and the defendant initially discussed robbing Lynnwood’s Market. The State
called Currie as a witness, and he confirmed that he was present when Gause and the defendant
discussed robbing the market. He also testified that he was in the area on December 4 when Mr.
Shoemake was assaulted and robbed. Currie saw the defendant strike Mr. Shoemake and saw the
three men enter the market. Currie explained that he was reluctant to speak with law enforcement
officers because he “wasn’t trying to get [the defendant and Gause] in trouble.” Currie denied
having a gun that evening or going into Lynnwood’s Market. He also denied receiving any of the
robbery proceeds.

                 Nicholas Harding, who was acquainted with the defendant, Currie, and Gause,
testified that he also witnessed the robbery on December 4. He saw Mr. Shoemake fall to the ground
and saw the defendant and Gause accompany Mr. Shoemake inside the market. Harding and Currie
are cousins, and Harding agreed that he would not want to cause his cousin any trouble. Harding
denied involvement in the robbery or receipt of any proceeds.

               The defendant did not testify at trial or offer any evidence.

                             SUFFICIENCY OF THE EVIDENCE

                The defendant’s evidence-sufficiency argument attacks the State’s proof of his
identity as the person who entered Lynnwood’s Market with a gun, demanded that Mr. Shoemake
open the safe, and received money from the market’s safe. Specifically, he characterizes Mr.
Shoemake’s identification as “problematic” because the events occurred at night, the inside of the
store was only partially lit, Mr. Shoemake admitted seeing only the assailant’s eyes, and because Mr.
Shoemake admitted that the first time he identified the defendant was during the preliminary hearing
in general sessions court. The defendant also assails Gause’s credibility based on the inconsistent
statements given to Lieutenant Sanders, and the defendant questions Currie’s credibility because
Currie denied receiving any robbery proceeds although Gause contradicted that claim.

                 A convicted criminal defendant who challenges the sufficiency of the evidence on
appeal bears the burden of demonstrating why the evidence is insufficient to support the verdict,
because a guilty verdict destroys the presumption of innocence and replaces it with a presumption
of guilt. See State v. Evans, 108 S.W.3d 231, 237 (Tenn. 2003); State v. Carruthers, 35 S.W.3d 516,
557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This court must reject a
defendant’s challenge to the sufficiency of the evidence if, after considering the evidence in a light
most favorable to the prosecution, we determine that any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 2789 (1979); State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999).



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                  On appeal, the state is entitled to the strongest legitimate view of the evidence and
all reasonable and legitimate inferences which may be drawn therefrom. See Carruthers, 35 S.W.3d
at 558; Hall, 8 S.W.3d at 599. A guilty verdict by the trier of fact accredits the testimony of the
State’s witnesses and resolves all conflicts in the evidence in favor of the prosecution’s theory. See
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions about the credibility of 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, and this court will not re-weigh or re-evaluate the evidence. See Evans, 108 S.W.3d
at 236; Bland, 958 S.W.2d at 659. Nor will this court substitute its own inferences drawn from
circumstantial evidence for those drawn by the trier of fact. See Evans, 108 S.W.3d at 236-37;
Carruthers, 35 S.W.3d at 557.

                The defendant invites this court to reassess the trial evidence and substitute our own
inferences and credibility determinations for those of the jury. We reject the invitation, as we must,
pursuant to our circumscribed standard of appellate review. A jury verdict approved by the trial
court accredits the State’s witnesses and resolves all conflicts in the evidence in the State’s favor.
See Bland, 958 S.W.2d at 659. The question of identity is not one to be decided by the court. Such
a question is within the sole province of the jury. The identification of the defendant as the person
who committed the crime for which he is on trial is a question of fact for the determination of the
jury, upon consideration of all the competent proof. See Stubbs v. State, 216 Tenn. 567, 393 S.W.2d
150 (1965); White v. State, 533 S.W.2d 735, 744 (Tenn. Crim. App. 1975).

                 Relevant to this case, a person commits aggravated robbery who commits a robbery
with a deadly weapon. T.C.A. § 39-13-402(a)(1) (2003). Robbery “is the intentional or knowing
theft of property from the person of another by violence or putting the person in fear.” Id. §
39-13-401(a). The indictment alleged that the defendant committed aggravated assault by
intentionally or knowingly committing an assault via “bodily injury,” id. § 39-13-101(a)(1), and
using or displaying a deadly weapon, id. § 39-13-102(a)(1). “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.” Id. § 39-14-103.

                The State presented abundant evidence from which the jury reasonably could
conclude that the defendant was the perpetrator who committed the charged offenses. Mr. Shoemake
identified the defendant as the individual who pointed a gun at him, struck him in the head, and
ordered him to open the safe. Mr. Shoemake testified that the money bags taken from the safe
contained approximately $4,700. The co-defendant Gause testified about his involvement, and he
related that he personally saw the defendant strike Mr. Shoemake in the head with the gun. Both
Currie and Harding testified that they were in the area and witnessed the defendant assault Mr.
Shoemake with a gun and the three men enter the market.

              This evidence, we hold, is legally sufficient to find the defendant guilty beyond a
reasonable doubt of aggravated robbery, aggravated assault, and theft of property valued between
$1,000 and $10,000.



                                                 -4-
                                                   PLAIN ERROR

                As a matter of plain error, see Tenn. R. Crim. P. 52(b); State v. Lewis, 958 S.W.2d
736, 738 (Tenn. 1997), we hold that principles of double jeopardy bar the defendant’s multiple
convictions of aggravated robbery and theft, see State v. Hayes, 7 S.W.3d 52, 56 (Tenn. Crim. App.
1999) (stating that theft is an element of aggravated robbery and, therefore, a lesser included offense
of aggravated robbery, with the result that an accused may not be convicted of both theft and
aggravated robbery when the same facts establish the offenses). The finding of guilty on the theft
count should be merged into the judgment of conviction of aggravated robbery. State v. Addison,
973 S.W.2d 260, 267 (Tenn. Crim. App. 1997) (“Such a merger and imposition of a single judgment
of conviction protects against double jeopardy and preserves the validity of the jury verdicts for
future avoidance of problems related to unnecessarily dismissed ‘charges’ or ‘convictions’”).1

                Further, we note that the trial court endeavored to merge the finding of guilt of
aggravated assault into the aggravated robbery conviction; however, it entered a judgment of
conviction of aggravated assault, including the imposition of a sentence for that offense. To effect
merger, the proper procedure is to merge the finding of guilt of aggravated assault into the judgment
of conviction of aggravated robbery. See State v. Timmy Reagan, No. M2002-01472-CCA-R3-CD,
slip op. at 20 (Tenn. Crim. App., Nashville, May 19, 2004) (“[N]either two sentences nor separate
judgments of conviction should [be] entered, and the one judgment of conviction should reflect the
merger.”). On remand, the trial court should vacate the judgments of conviction of aggravated
assault, including the sentence, and of theft and amend the judgment of conviction of aggravated
robbery to reflect the merger of both the findings of guilt of aggravated assault and theft.

                                                   SENTENCING

                 The defendant is aggrieved of his 10-year mid-range sentence for his aggravated
robbery conviction. See T.C.A. §§ 39-13-402(b) (2003) (aggravated robbery is Class B felony), 40-
35-112(a)(2) (2006) (Range I sentence for Class B felony is eight to 12 years) He also complains
that the trial court erred in not granting probation or a community-corrections sentence.

                Turning to the defendant’s 10-year sentence for aggravated robbery, we begin with
our familiar standard of review. When there is a challenge to the length, range, or manner of service


         1
          W e acknowledge that the trial court stated its intent to merge the finding of guilt of aggravated assault into the
conviction of aggravated robbery, and we assume that the court determined that principles of double jeopardy bar the
imposition of both these convictions. W e are not convinced that the configuration of the two counts in the indictment
impel a merger. The charge of aggravated robbery is based upon the deadly-weapon mode. See T.C.A. § 39-13-
402(a)(1) (2003). To be sure, the mode of aggravated assault charged in the indictment is the use or display of a deadly
weapon. Id. § 39-13-102(a)(1)(B). Although both modes employ the deadly-weapon basis for aggravation, the
indictment charges that the underlying assault in the aggravated assault count was committed via bodily injury. Id. §
39-13-101(a)(1). Neither robbery nor the mode of aggravated robbery as alleged in the indictment contains a bodily
injury element. Nevertheless, we will leave the merger of the finding of guilt of aggravated assault undisturbed, subject
to remand for procedural correction elsewhere explained in this opinion. The State neither appealed nor raised the issue.

                                                            -5-
of a sentence, it is the duty of this court to conduct a de novo review of the record with a
presumption that the determinations made by the trial court are correct. T.C.A. § 40-35-401(d)
(2003). This presumption is “conditioned upon the affirmative showing in the record that the trial
court considered the sentencing principles and all relevant facts and circumstances.” State v. Ashby,
823 S.W.2d 166, 169 (Tenn. 1991); see State v. Hooper, 29 S.W.3d 1, 5 (Tenn. 2000). “The burden
of showing that the sentence is improper is upon the appellant.” Ashby, 823 S.W.2d at 169. In the
event the record fails to demonstrate the required consideration by the trial court, review of the
sentence is purely de novo. Id. If appellate review, however, reflects that the trial court properly
considered all relevant factors and its findings of fact are adequately supported by the record, this
court must affirm the sentence, “even if we would have preferred a different result.” State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

                In ordering an incarcerative sentence and denying probation or alternative sentencing,
the trial court made the following remarks:

                       I’ve reviewed the presentence report.

                      Find under the principles of sentencing the defendant should
               be sentenced as a standard offender.

                      The defendant has a history of criminal behavior in addition
               to what’s necessary to establish the appropriate range.

                       The Court finds there are not statutory mitigating factors.

                       The proof showed that this defendant used a weapon to beat
               the victim, forced the victim to his knees. The victim received an
               injury that could have been life-threatening. He was bleeding
               profusely. Forced the victim inside the business to open the safe, and
               then took money, together with his codefendant, from the premises.

                       The Court finds that the defendant should be sentenced to an
               enhanced sentence of ten years as a standard offender in Count 1;
               three years in Count 2, that merges I believe into the first count – the
               defendant participated in the taking of the property – and sentences
               the defendant to two years in Count 3; all counts to run concurrent.

                       Restitution in the amount of $4,700 is fixed.

                       The Court finds it’s not a proper case for probation or
               alternative sentencing and denies the request.




                                                 -6-
These meager remarks are inadequate to apply de novo review with a presumption of correctness.
Therefore, our review of the defendant’s sentence will be purely de novo.

               Upon canvassing the record, we find that the presentence report reflects that the
defendant was adjudicated guilty as a juvenile in December 2000 of unlawful possession of a weapon
(BB gun) and a curfew violation and in 2002 of disorderly conduct. See State v. Adams, 45 S.W.3d
46, 59 (Tenn. Crim. App. 2000) (trial court entitled to rely upon evidence of the juvenile offenses
contained in presentence report). In June 2003, the defendant was convicted as an adult of simple
assault. The defendant reported to the presentence investigator that he had been drinking alcohol
since he was fifteen years old, that he used marijuana “every chance” he could, and that he used
crack cocaine every time he smoked or drank. The defendant said that during 2004, he smoked
marijuana sprinkled with crack cocaine on a daily basis. We are satisfied from this evidence that the
defendant has a previous history of criminal convictions or criminal behavior in addition to those
necessary to establish the appropriate range, making enhancement factor (1) and/or factor (16)
applicable. See T.C.A. § 40-35-114(1), (16) (2006).2

               We also find that the trial testimony of co-defendant Gause establishes that the
defendant “was a leader in the commission of an offense involving two (2) or more criminal actors,”
for which enhancement factor (2) is applicable. See id. § 40-35-114(2). Application of these two
enhancement factors, with no applicable mitigating factors, leads us to conclude that a mid-range
sentence of 10 years is fully warranted.

               Regarding the manner of service of the sentence, the defendant’s 10-year sentence
renders him ineligible for probation. See T.C.A. § 40-35-303(a) (2003).3 Furthermore, as a standard
offender convicted of a Class B felony, the defendant was not entitled to the presumption of
favorable candidacy for alternative sentencing in the absence of evidence to the contrary. See id.
§ 40-35-102(6) (presumption extended to an offender who is “an especially mitigated or standard
offender convicted of a Class C, D or E felony”).

              The last sentencing consideration is whether the trial court should have imposed a
community corrections sentence. Here again, the defendant fails to meet the standard eligibility
requirements for consideration of a community corrections sentence. He was found guilty of
aggravated robbery and aggravated assault, violent felony offenses and offenses involving a crime


         2
            Tennessee Code Annotated section 40-35-114, as amended in 2002 by Public Act 849, § 2(c), effective July
4, 2002, added one enhancement factor and subsequently renumbered all of the original enhancement factors in the
statute. W e note that the legislature has, again, recently amended and renumbered the enhancement factors, see T.C.A.
§ 40-35-114 (2006). Our references in this opinion to the enhancement factors derive from the current numbering
scheme.


         3
           For offenses committed on or after June 7, 2005, eligibility for probation has been increased from an eight-
year sentence to a 10-year sentence. See T.C.A. § 40-35-303(a) (2006). The offenses in this case were committed on
December 4, 2004.

                                                         -7-
against a person. See T.C.A. § 40-36-106(a)(1)(B), (C) (2006) (defining eligible offenders and
excluding persons convicted of felony offenses involving crimes against the person and persons
convicted of violent felony offenses). Furthermore, he merely argues in a conclusory fashion that
he otherwise qualifies for the “special needs” category of offenders suitable for community
corrections placement. See id. § 40-36-10(c). This argument is insufficient to demonstrate that the
sentence imposed by the trial court was improper.

                Now having fully reviewed and considered the issues raised on appeal, we affirm the
aggravated robbery conviction and sentence, vacate the conviction judgments for aggravated assault
and theft, and remand for the correction and entry of an appropriate judgment for aggravated robbery
reflecting the merger of offenses into a single judgment consistent with this opinion.


                                                      ____________________________________
                                                      JAMES CURWOOD WITT, JR., JUDGE




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