      IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT JACKSON

                       JANUARY 1998 SESSION         FILED
                                                     January 29, 1998

                                                    Cecil Crowson, Jr.
                                                     Appellate C ourt Clerk
STATE OF TENNESSEE,             )
                                ) C.C.A. No. 02C01-9702-CR-00081
      Appellee,                 )
                                ) Shelby County
V.                              )
                                ) Hon. James C. Beasley, Sr., Special Judge
                                )
RICKY JACKSON,                  ) (Aggravated Rape; Aggravated Robbery)
                                )
      Appellant.                )




FOR THE APPELLANT:                 FOR THE APPELLEE:

A C Wharton, Jr.                   John Knox Walkup
Shelby County Public Defender      Attorney General & Reporter

Edward G. Thompson                 Sarah M. Branch
Assistant Public Defender          Counsel for the State
616 Adams Avenue                   450 James Robertson Parkway
Memphis, TN 38103                  Nashville, TN 37243

                                   William L. Gibbons
                                   District Attorney General

                                   Lee Coffee
                                   Assistant District Attorney General
                                   201 Poplar Avenue, Third Floor
                                   Memphis, TN 38103



OPINION FILED: ___________________


AFFIRMED


PAUL G. SUMMERS,
Judge




                                OPINION
       The appellant Ricky Jackson was convicted by a jury in the Shelby County

Criminal Court of aggravated rape and aggravated robbery. The trial court

denied the appellant’s motion for a new trial. On appeal, the appellant raises the

sole issue of whether the evidence is sufficient to support the jury’s verdict. After

reviewing the record, we find that the evidence is sufficient and affirm the

appellant’s convictions.



                             STANDARD OF REVIEW



       When an appellant challenges the sufficiency of the evidence, this Court

must determine whether, after viewing the evidence in a light most favorable to

the prosecution, any rational trier of fact could have found the essential elements

of a crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979);

Tenn. R. App. P. 13(e); State v. Duncan, 698 S.W.2d 63 (Tenn. 1985). The

weight and credibility of a witness’ testimony are matters entrusted exclusively to

the jury as the triers of fact. State v. Sheffield, 676 S.W.2d 542 (Tenn. 1984);

Byrge v. State, 575 S.W.2d 292 (Tenn. Crim. App. 1978). Jury verdicts accredit

the state’s witnesses and resolve all evidentiary conflicts in the state’s favor.

State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Banes, 874

S.W.2d 73, 78 (Tenn. Crim. App. 1993). On appeal, the state is entitled to both

the strongest legitimate view of the evidence and all reasonable inferences which

may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832 (Tenn. 1978).

Moreover, guilty verdicts remove the presumption of innocence, enjoyed by

defendants at trial, and replace it with a presumption of guilt. State v. Grace,

493 S.W.2d 474 (Tenn. 1973). Appellants, therefore, carry the burden of

overcoming a presumption of guilt when appealing jury convictions. Id.




                                     EVIDENCE



       The victim, seventeen years old at the time of the offense, testified that on

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December 1, 1995, she and her nephew went to a neighborhood store around

10:00 p.m. After the victim and her nephew left the store, she was paged by a

friend; she walked to a nearby phone booth and returned the call. While the

victim was on the phone, four people left a bar down the street and walked

toward the victim. One of the four people, the appellant, walked over to the

phone booth and told the victim to ask her friend on the phone if she wanted to

buy a gun. Neither the victim nor her nephew knew the appellant. While the

victim was on the phone, the appellant told the victim’s nephew to be quiet. The

area around the phone booth was well lit. The nephew identified the appellant’s

Nike tennis shoes as the shoes worn by the man at the phone booth.



       After the victim finished her phone conversation, she crossed the street to

walk home with her nephew. Both the victim and her nephew testified that the

appellant walked with them and that he moved closer to the victim despite her

efforts to move away from him. The appellant grabbed the victim and placed a

gun to her side. The appellant told the victim that he would “blow her ass off” if

she ran or screamed. To prevent injury to her nephew, the victim told him to go

on home without her. As the victim’s nephew walked home, he saw the

appellant and the victim go behind a white house. Behind the house, the

appellant took six rings, a beeper, and $35.00 from the victim.



       Then, the appellant took the victim across the street and raped her behind

an auto parts store. The victim testified that the appellant told her to undress

and get on the ground. The appellant then forced the victim at gunpoint to have

oral, vaginal, and anal sex with him. The appellant told the victim that he would

kill her and her family if she told the police. After the rape, the victim ran to her

sister’s house and told her what happened. The victim’s sister testified that the

victim was “nervous, shaking and praying” when she returned from the store.

The victim described her assailant to the police and went to the rape crisis

center. She testified that she could clearly see the perpetrator’s face during the

rape as well as when she was at the phone booth. The examining nurse testified

that the victim was bleeding slightly from the rectum and that tests of the anal

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area revealed sperm. The amount of the sperm found was insufficient to

conduct DNA analysis. The appellant was not apprehended.



       On January 30, 1996, the victim saw the appellant. He was walking

behind her and asked if she had seen a certain individual. W hen the victim

turned, the appellant saw her face and ran. The victim ran to Ada Odum’s house

and told Ms. Odum that she had seen the man who robbed and raped her. Ms.

Odum testified that the victim was visibly upset and shaken. Ms. Odum told the

vicitm the appellant’s name and where he lived. The victim called the police.

When the police went to the appellant’s house to arrest him, the appellant was

on the phone calling the fugitive squad to see if or why he was wanted by the

police. The appellant was taken into custody. The victim later identified the

appellant in a photographic lineup.



       The appellant testified at trial that he did not rob or rape the victim. His

defense was that the case was one of mistaken identity. On appeal, the

appellant cites testimony to support his claim that the evidence is insufficient to

support the convictions. The appellant testified that he could not remember

where he was on the night of the offense. In essence, he argues that the jury

should have found him a credible witness because he admitted that he could not

remember where he was on December 1, 1995, instead of fabricating an alibi.

The appellant reasons that most people cannot remember where they were on a

particular date. The appellant also argues that the jury should not have believed

a police officer’s testimony that most people call the fugitive squad to make

themselves look innocent. The appellant contends that it is much more

reasonable to believe that an innocent man, as opposed to a guilty man, would

call to ask why he was a suspect. The appellant reasons that the police would

be the last person that a guilty man would contact. Lastly, the appellant cites his

own testimony in which he denied owning Nike tennis shoes on the date of the

offenses, as identified by the victim’s nephew.



                            LAW AND CONCLUSION

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      As applicable to this case, aggravated robbery is defined as the

intentional or knowing theft of property from a victim accomplished with a deadly

weapon. Tenn. Code Ann. § 39-13-402(a)(1) (1991). The appellant intentionally

or knowingly deprived the victim at gunpoint of six rings, worth approximately

$350.00; a beeper; and $35.00.



      Aggravated rape can be defined as unlawful sexual penetration of a victim

by the defendant or the defendant by a victim when force or coercion is used to

accomplish the act and the defendant is armed with a weapon. Tenn. Code Ann.

§ 39-13-502(a)(1) (Supp. 1995). The victim testified that the appellant pointed a

gun at her and told her to undress and perform fellatio on him. The appellant

then vaginally and anally penetrated the victim at gunpoint with his penis.



       The argument offered by the appellant is essentially that the jury should

have believed his testimony and not that of the victim and her nephew. As

previously stated, the jury resolves questions of credibility. The record contains

ample evidence upon which to affirm the appellant’s convictions. The area

around the phone booth was well lit. Both the victim and the victim’s nephew

identified the appellant as the perpetrator. The victim testified that she could

see the appellant’s face while he raped her. The victim’s identification of the

perpetrator after the rape matched the appellant’s description. The victim

unequivocally identified the appellant in the photographic lineup as the person

who robbed and raped her.



       The judgment of the trial court is affirmed.




                                                 __________________________
                                                 PAUL G. SUMMERS, Judge


CONCUR:




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___________________________
DAVID G. HAYES, Judge




___________________________
JOE G. RILEY, Judge




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