             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT JACKSON

                            FEBRUARY 1998 SESSION            FILED
                                                              March 26, 1998

                                                             Cecil Crowson, Jr.
                                                             Appellate C ourt Clerk
STATE OF TENNESSEE,             )
                                )     No. 02-C-01-9701-CR-00033
            APPELLEE,           )
                                )     Shelby County
v.                              )
                                )     Honorable Joseph B. Dailey, Judge
CTJUAN D. JAMES,                )
                                )     (Aggravated Robbery)
            APPELLANT.          )




FOR THE APPELLANT:                    FOR THE APPELLEE:

Joseph S. Ozment                      John Knox Walkup
Attorney at Law                       Attorney General & Reporter
217 Exchange Avenue                   425 Fifth Avenue, North
Memphis, TN 38105                     Nashville, TN 37243-0493

                                      Deborah A. Tullis
                                      Assistant Attorney General
                                      425 Fifth Avenue, North
                                      Nashville, TN 37243-0493

                                      William L. Gibbons
                                      District Attorney General
                                      201 Poplar Avenue, Suite 3-01
                                      Memphis, TN 38103

                                      Terrell L. Harris
                                      Assistant District Attorney General
                                      201 Poplar Avenue, Suite 3-01
                                      Memphis, TN 38103




OPINION FILED: _______________________________


AFFIRMED


Joe B. Jones, Presiding Judge
                                    OPINION
         The appellant, Ctjuan D. James (defendant), was convicted of three counts of

aggravated robbery, a Class B felony, by a jury of his peers. The trial court, finding the

defendant to be a standard offender, imposed a Range I sentence consisting of

confinement for ten (10) years in the Department of Correction for each count. The court

ordered the three sentences to be served concurrently, but consecutive to a prior sentence

of fifteen (15) years for an especially aggravated robbery conviction. The defendant

presents two issues for review. He contends the evidence contained in the record is

insufficient, as a matter of law, to support a finding by a rational trier of fact that he was

guilty of three aggravated offenses beyond a reasonable doubt. He also contends the trial

court erred by ordering       the sentences in these three convictions to be served

consecutively to the sentence in the prior conviction. After a thorough review of the record,

the briefs of 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.

         Bryant J. Ward (Ward), Brandon Eason (Eason), and Derrick Johnson (Johnson)

were seniors at Booker T. Washington High School in Memphis. On the morning of

February 5, 1994, they went to LeMoyne-Owen College to take the ACT college entrance

examination. The test ended shortly before noon.

         Ward, Eason, and Johnson began walking to Eason’s home. They planned to stop

at a record shop before arriving at their destination. When they reached the intersection

of Mississippi Boulevard and Edith Street, a blue Nissan Stanza stopped, the defendant

and another man exited the vehicle, and the two men approached the victims. The

defendant was armed with a sawed-off shotgun. He pointed the gun at Ward’s chest and

told him to “drop it off,” meaning take his coat off and give him any personal property of

value.

         Ward removed his Orlando Magic jacket and placed it on the sidewalk, along with

his pager and headset. Eason removed his Los Angeles Raiders jacket and placed it on

the sidewalk. Eighty dollars was taken from Johnson. The defendant’s cohort collected

the items of personal property, put them in the vehicle, and the defendant and his cohort

left in the Nissan Stanza. The victims went to Eason’s home and called the police.

         On February 18, 1994, the victims attended a lineup. All three victims made a


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positive identification of the defendant as the person who had the gun. Johnson made a

courtroom identification of the defendant. Ward testified the defendant resembled the

gunman, but not his features. At the time of trial, the defendant was wearing glasses, he

did not have a full beard, his hair was lighter and it was not braided. Johnson and Eason

also identified the defendant in the courtroom, but said his appearance had changed. A

police officer testified the features of the defendant had changed. A photograph taken

shortly after the robberies was introduced to illustrate some of the facial and hair changes.



                                               I.

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

matter of law, to support a finding by a rational trier of fact that he is guilty of three counts

of aggravated robbery beyond a reasonable doubt. He bases this contention upon (a) the

tentative identification of the defendant by the victims during the trial and (b) the testimony

of his mother. The defendant’s mother rebutted the testimony of the victims regarding the

defendant’s facial features, clothing, and hairstyle. This court concludes the defendant

seeks to have this court reweigh the trial evidence.

       When an accused challenges the sufficiency of the convicting evidence, this court

must review the record to determine if the evidence adduced at trial is sufficient "to support

the finding by the trier of fact of guilt beyond a reasonable doubt." Tenn. R. App. P. 13(e).

This rule is applicable to findings of guilt based upon direct evidence, circumstantial

evidence, or a combination of direct and circumstantial evidence. State v. Dykes, 803

S.W.2d 250, 253 (Tenn. Crim. App.), per. app. denied (Tenn. 1990).

       In determining the sufficiency of the convicting evidence, this court does not reweigh

or reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.),

per. app. denied (Tenn. 1990). Nor may this court substitute its inferences for those drawn

by the trier of fact from circumstantial evidence. Liakas v. State, 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 and legitimate

inferences which may be drawn from the evidence. State v. Cabbage, 571 S.W.2d 832,


                                               3
835 (Tenn. 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), our 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."

         Since a verdict of guilt removes the presumption of innocence and replaces it with

a presumption of guilt, the accused, as the appellant, has the burden in this court of

illustrating why the evidence is insufficient to support the verdicts returned by the trier of

fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This court will not disturb a

verdict of guilt due to the sufficiency of the evidence unless the facts contained in the

record are insufficient, as a matter of law, for a rational trier of fact to find that the accused

is guilty beyond a reasonable doubt. Tuggle, 639 S.W.2d at 914.



                                               B.

         Before the defendant could be convicted of aggravated robbery in these cases, the

state had to prove beyond a reasonable doubt the defendant (a) committed an intentional

or knowing theft of property from the victim’s person, (b) by putting the victim in fear, and

(c) the theft was accomplished with a deadly weapon. Tenn. Code Ann. §§ 39-13-401(a)

and -402(a)(1). In this case, the state established these elements beyond a reasonable

doubt.

         The defendant exited a motor vehicle, exhibited a sawed-off shotgun, and told the

victims to give him the valuable property they possessed while a second perpetrator placed

the victims’ property in the vehicle. All three victims testified they feared the loss of their

respective lives.    This was the sole reason they readily gave their property to the

defendant. All three victims made a positive identification of the defendant after viewing

a lineup. Two of the victims made a courtroom identification.

         This court is of the opinion the evidence is sufficient to support a finding by a

rational trier of fact that the defendant was guilty of three counts of aggravated robbery


                                                  4
beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 99

S.Ct. 278, 61 L.Ed.2d 560 (1979).

       This issue is without merit.



                                             II.

       The defendant contends the trial court erred by requiring him to serve these

convictions consecutively to a prior sentence for especially aggravated robbery. The trial

court imposed a Range I sentence of ten (10) years in all three counts. These sentences

are to be served consecutively to a fifteen (15) year sentence in a prior case for an

effective sentence of twenty-five (25) years. He argues the trial court imposed consecutive

sentencing (a) to deter others and (b) to prevent him from having a “free case.” He also

argues the trial court failed to make findings of fact or state reasons which supported the

guidelines set forth in State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995).



                                             A.

       When an accused challenges the length and manner of service 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). 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). The presumption

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

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

facts. State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v. Smith, 891

S.W.2d 922, 929 (Tenn. Crim. App.), per. app. denied (Tenn. 1994); State v. Bonestel,

871 S.W.2d 163, 166 (Tenn. Crim. App. 1993). However, this court is required to give

great weight to the trial court's determination of controverted facts as the trial court's

determination of these facts is predicated upon the witnesses' demeanor and appearance

when testifying. State v. Jernigan, 929 S.W.2d 391, 395 (Tenn. Crim. App.), per. app.

denied (Tenn. 1996).


                                              5
       In conducting a de novo review of a sentence, this court must consider (a) any

evidence received at the trial and/or sentencing hearing, (b) the presentence report, (c) the

principles of sentencing, (d) the arguments of counsel relative to sentencing alternatives,

(e) the nature and characteristics of the offense, (f) any mitigating or enhancing factors, (g)

any statements made by the accused in his own behalf, and (h) the accused's potential or

lack of potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-103 and -210;

State v. Scott, 735 S.W.2d 825, 829 (Tenn. Crim. App.), per. app. denied (Tenn. 1987).

       The party challenging the sentences imposed by the trial court has the burden of

establishing that the sentences are erroneous. Sentencing Commission Comments to

Tenn. Code Ann. § 40-35-401; Ashby, 823 S.W.2d at 169; Butler, 900 S.W.2d at 311.

In this case, the defendant has the burden of illustrating the sentences imposed by the trial

court are erroneous.



                                              B.

       In State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995), the supreme court established

criteria which must be satisfied before a trial court may impose consecutive sentencing

when the accused is a dangerous offender. The court said the trial court must find that (a)

the accused is a dangerous offender, (b) the length of the sentence reasonably relates to

the severity of the crime committed by the accused, and (c) a lengthy sentence is required

to protect the public from the accused’s future criminal conduct. Id. at 939. The trial

court’s findings satisfied the criteria.

                                             (1)

       A “dangerous offender” is an accused “whose behavior indicates little or no regard

for human life, and [has] no hesitation about committing a crime in which the risk to human

life is high.” Tenn. Code Ann. § 40-35-115(b)(4); Wilkerson, 905 S.W.2d at 937. The

defendant’s conduct meets this definition. Consequently, the defendant is a dangerous

offender.

       He previously was convicted of especially aggravated robbery. In that case, he was

armed with a knife. In this case, he employed a shotgun. He placed the gun in close

proximity to Ward’s body. These are clearly dangerous offenses. The risk to human life


                                              6
was extremely high. The defendant showed no hesitation about committing these crimes.



                                             (2)

       The effective sentence of twenty-five (25) years reasonably relates to the severity

of the crimes committed, namely, aggravated robbery. This offense is a Class B felony.

This classification indicates the Tennessee General Assembly considers aggravated

robbery to be a serious offense.

       The punishment range for a Class B felony is confinement in the Department of

Correction for eight (8) years to thirty (30) years. The actual sentence depends upon the

appropriate sentencing range. Tenn. Code Ann. § 40-35-112. The total sentence imposed

does not exceed the maximum sentence for a Class B felony.



                                             (3)

       In this case, a lengthy sentence is required to protect the public from the

defendant’s future criminal conduct. The defendant, who was twenty-three years of age

when he was sentenced, has previously been convicted of especially aggravated robbery,

two counts of assault, making a false report, possession of cocaine, and burglary third

degree. The trial court commented during the sentencing hearing that the defendant has

“got a whole stack of offenses here,” meaning pending indictments. The presentence

report does not list these crimes.

       Previous attempts to assist the defendant’s rehabilitation have been unsuccessful.

The defendant continued to engage in criminal conduct while on probation. His probation

was revoked.

       Given these facts, it is apparent from the record that the defendant is now past the

rehabilitation stage of his life. Thus, confinement for an extended period of time is

necessary “to protect society from [his unwillingness] to lead a productive life and resort

to criminal activity in furtherance of [his] anti-social lifestyle.” Gray v. State, 538 S.W.2d

391, 393 (Tenn. 1976).

       This issue is without merit.




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                                     CONCLUSION

      This court concludes the evidence is sufficient to support a finding by a rational trier

of fact that the defendant is guilty of three counts of aggravated robbery beyond a

reasonable doubt. Furthermore, the record supports consecutive sentencing.




                                          ________________________________________
                                              JOE B. JONES, PRESIDING JUDGE


CONCUR:



___________________________________
     JOHN H. PEAY, JUDGE



___________________________________
    THOMAS T. WOODALL, JUDGE




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