             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE                  FILED
                            JANUARY 1998 SESSION
                                                                April 7, 1998

                                                             Cecil Crowson, Jr.
                                                             Appellate C ourt Clerk
STATE OF TENNESSEE,             )
                                )
             Appellee,          )    No. 03C01-9703-CC-00107
                                )
                                )    Sullivan County
v.                              )
                                )    Honorable D. Kelly Thomas, Jr., Judge,
                                )    sitting by designation
JESSEE C. GUDGER, III,          )
                                )    (Robbery)
             Appellant.         )


For the Appellant:                   For the Appellee:

Jessee C. Gudger, III Pro Se         John Knox Walkup
                                     Attorney General of Tennessee
Stephen M. Wallace                          and
District Public Defender             Ruth A. Thompson
   and                               Assistant Attorney General of Tennessee
R.C. Newton                          450 James Robertson Parkway
Assistant Public Defender            Nashville, TN 37243-0493
P.O. Box 839
Blountville, TN 37617                H. Greeley Wells, Jr.
                                     District Attorney General
                                             and
                                     Joseph Eugene Perrin
                                     Assistant District Attorney General
                                     P.O. Box 526
                                     Blountville, TN 37617-0526




OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge
                                       OPINION



              The defendant, Jessee C. Gudger, III, appeals as of right from his

conviction by a jury in the Sullivan County Circuit Court for robbery, a Class C felony.

The defendant was sentenced as a Range I, standard offender to five years in the

custody of the Department of Correction. The trial court ordered the defendant to serve

his sentence consecutively to a sentence imposed in an unrelated case. The defendant

contends that:

              (1) the evidence is insufficient to support the conviction;

              (2) the trial court erred by denying his motion to suppress a
              statement given to the police;

              (3) the trial court erred by denying his special request to
              instruct the jury on voluntary intoxication; and

              (4) the trial court erred by sentencing him to five years in the
              Department of Correction.

We disagree and affirm the trial court’s judgment of conviction.



              Detective Jerry Smeltzer testified that he investigated the robbery of the

Cherokee Food Mart on Volunteer Parkway on December 12, 1995. He identified a

videotape of store surveillance given to him by the manager of the store. He stated that

he contacted Dana Ross and Constance Denise Franklin, who was identified as

hugging the defendant on the surveillance videotape. Detective Smeltzer testified that

he obtained an arrest warrant based upon the information he learned during his

investigation. He said that the defendant was arrested at his workplace and taken to

the Johnson City Police Department where the defendant gave a statement after being

advised of his rights. Detective Smeltzer testified that the defendant was wearing a

Dallas Cowboys jacket at the time of his arrest and that he had a Virginia identification

card.




                                             2
                The defendant’s statement was introduced into evidence. It reflects that

the defendant told Detective Smeltzer that he and Dana Ross went to the Cherokee

Food Mart on December 12, 1995, at approximately 12:30 a.m. The defendant said

that he bought beer and other groceries. The defendant stated that he showed the

clerk at the store his Virginia identification card to purchase the beer. He said that he

saw Denise Franklin, who hugged him, and some other friends while in the store. The

defendant then left the store and later saw Erika Arnold1 who took him to buy some

drugs. The defendant told Detective Smeltzer that while at the apartments where he

planned to purchase the drugs, he decided to obtain money. He said that he wrote out

a note to give to the clerk and told Arnold to take him to the Cherokee Food Mart to buy

cigarettes. The defendant claimed that Arnold did not know that he intended to rob the

store. The defendant stated that he turned his coat inside out, walked inside the store,

and gave the note to the clerk. He said that after the clerk gave him the money, he left

the store in the car driven by Arnold, telling her that he had robbed the store after they

left. He stated that he told Arnold that he robbed the store to pay off his drug debt with

a drug dealer because the dealer refused to sell him any drugs until he paid the debt.

The defendant told Detective Smeltzer that he got Arnold to drive him back to the

apartments to purchase some more drugs. He stated that they drove around and

smoked crack cocaine and he gave Arnold ten dollars of the stolen money.



                On cross-examination, Detective Smeltzer testified that the defendant told

him that he did not remember what he wrote on the piece of paper he gave to the clerk.

He stated that the note was never recovered because the defendant picked up the note

as he left the store. Detective Smeltzer said that he stated in his affidavit of complaint

that the clerk told him that the note said to give him the money or he would blow her

head off. Detective Smeltzer acknowledged that the statement given by the clerk states



                   1
                     The presentenc e report reflects that Arnold was charged with perjury and acces sory
after the fact to robbery. She pled guilty to the offenses and received an effective sentence of eighteen
months in the custody of the Department of Correction.

                                                     3
that the note said that the defendant would blow her ass off if she did not give him the

money.



             Angela Parker, a clerk at the Cherokee Food Mart, testified that shortly

after 12:00 a.m. on December 12, the defendant along with another man came into the

store to purchase beer. She said that the defendant, who was wearing a Dallas

Cowboys jacket, showed her a Virginia identification card. Ms. Parker identified the

identification card used by the defendant and the jacket worn by the defendant. She

stated that the defendant then asked her about the music she was listening to and

whether she liked to party. Ms. Parker stated that while the defendant was in the store,

Denise Franklin and her boyfriend entered the store. She testified that she spoke to

Ms. Franklin and observed her hug the defendant before they all left the store.



             Ms. Parker testified that the defendant returned to the store at

approximately 3:45 a.m. while she was outside reading the gas pumps. She said that a

car pulled into the top parking lot and the defendant got out of the passenger side. Ms.

Parker testified that the defendant was wearing the same jacket but he was wearing it

inside out. She stated that as she walked back toward the store, she passed the

defendant near an ice machine. She said that she saw the defendant’s face clearly at

that time and that she recognized the defendant as the person who had purchased beer

in the store earlier. Ms. Parker stated that the defendant pulled the hood of the jacket

over his head. She stated that she said hello to the defendant as she walked into the

store and then went behind the cash register.



             Ms. Parker testified that the defendant followed her inside the store and

asked her whether he could purchase beer. She stated that she and the defendant

were the only persons in the store. She said that when she told the defendant that she

could not sell beer after 3:00 a.m., the defendant, who was standing two to three feet



                                            4
away from the register, stated, “check this out,” as he lay a note on the counter beside

the cash register. Ms. Parker stated that the words “give me the f___ing money or I’ll

blow your ass away” were written in pencil on a half of a piece of paper. She said that

the defendant also told her that he was not joking. Ms. Parker testified that she

believed that the defendant was serious and that she was afraid for her life. She said

that she could not tell if the defendant had anything in his pockets. She testified that

she opened the register after reading the note and offered to let the defendant get the

money out of the drawer, but he told her to get it for him. She said that she handed the

defendant the cash contained in the drawer. Ms. Parker said that she tried to give the

defendant the food stamps as well, but the defendant told her that he did not want

them. She stated that the defendant instead told her to lift the drawer to make sure

there was no cash under the drawer. Ms. Parker testified that the defendant told her

not to be stupid and then picked up the note from the counter and walked out the door.

She stated that she immediately called the police and that she that she told Detective

Smeltzer about the robbery when he arrived.



              On cross-examination, Ms. Parker conceded that she initially told

Detective Smeltzer that the defendant gave her a Tennessee driver’s license, not a

Virginia driver’s license. She stated that she told Detective Smeltzer that the note said

that the defendant would blow off her ass, not her head, if she did not give him the

money. She testified on redirect examination that she was scared and shaking when

she gave the statement to police.



              Teresa Hudson, the manager of the Cherokee Food Mart, testified that

she calculated the money that had been stolen from the store. She said that one

hundred and fifty dollars was taken. She stated that she gave Detective Smeltzer a

videotape of the surveillance of the store. The videotape was played for the jury.




                                             5
                         I. SUFFICIENCY OF THE EVIDENCE

             The defendant contends that the evidence is insufficient to convict him of

robbery. Our standard of review when the sufficiency of the evidence is questioned on

appeal 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, 99 S. Ct.

2781, 2789 (1979). This means that we do not reweigh the evidence, but presume that

the jury has resolved all conflicts in the testimony and drawn all reasonable inferences

from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d 542, 547

(Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).



             In the light most favorable to the state, the evidence shows that the

defendant entered the Cherokee Food Mart on December 12, 1995, shortly after

midnight. The defendant, who was wearing a Dallas Cowboys jacket, had a

conversation with Ms. Parker and then showed her a Virginia identification card to

purchase beer. The defendant also spoke to and hugged an acquaintance of Ms.

Parker before leaving the store. The proof shows that before returning to the store, the

defendant wrote a note threatening to harm Ms. Parker if she did not give him the

money. The defendant returned to the store around 3:45 a.m., wearing the same jacket

inside out and with the hood over his head, and gave the note to Ms. Parker. After she

read the note, Ms. Parker, who stated that she was in fear for her life, gave the

defendant one hundred and fifty dollars from the register. When the defendant was

arrested the next day, he was wearing a Dallas Cowboys jacket. Ms. Parker identified

the jacket as the one worn by the robber. The defendant also admitted his guilt in an

oral statement given to Detective Smeltzer. Under these circumstances, a rational trier

of fact could find the defendant guilty of the offense of robbery beyond a reasonable

doubt.




                                            6
                          II. SUPPRESSION OF STATEMENT

              The defendant asserts that the trial court erred by denying his motion to

suppress his statement given to police. The defendant concedes that he was properly

arrested and advised of his Miranda rights. However, he argues that he did not

knowingly, voluntarily and intelligently waive his rights. The state contends that the trial

court properly allowed the statement into evidence. We agree.



              Before trial, the defendant filed a motion to suppress the statement he

gave to Detective Smeltzer, claiming that the statement was inadmissible because (1) it

was the product of an illegal arrest, (2) the defendant was not advised of his Miranda

rights, and (3) the defendant was coerced into giving the statement by threats and

promises.



              At the suppression hearing, Detective Smeltzer testified that he saw the

defendant at the Johnson City Police Department after the defendant had been

arrested. He stated that he informed the defendant of the charges against him.

Detective Smeltzer testified that he also told the defendant about the surveillance video,

the statement given by Arnold, and the statements of persons identifying the defendant

as the person shown on the videotape. He said that he asked the defendant whether

he had been read his rights while at the police station, and the defendant stated that he

had not. Detective Smeltzer stated that he then read the defendant his rights.

Detective Smeltzer testified that the defendant told him that he understood his rights,

did not need him to explain further, and did not want to exercise his rights. He said that

the defendant also made statements indicating that he wanted Detective Smeltzer to

hurry because he had heard the rights before. The defendant also signed a waiver of

rights form. Detective Smeltzer testified that the defendant then gave an oral

statement. He said that he transcribed the defendant’s answers and that the defendant

read and signed the statement without making any corrections. Detective Smeltzer



                                             7
denied making any threats or promises. He said that when the defendant asked

whether Arnold would be prosecuted, he told the defendant that it was not his decision

to make but rather was a decision for the district attorney.



              On cross-examination, Detective Smeltzer testified that the defendant told

him that he was not under the influence of a drug, although the defendant said that he

needed a “fix.” Detective Smeltzer stated that he did not believe that the defendant was

suffering from symptoms of drug withdrawal. He also denied telling the defendant that

he would help him get in a drug rehabilitation program if he would give a statement.

Detective Smeltzer testified that after the interview was completed and the statement

was signed, the defendant told him that his motive for robbing the store was his drug

addiction. Detective Smeltzer stated that in response to the defendant’s statement, he

told the defendant that the defendant would obtain counseling for his drug problem

while in prison or while on probation. He conceded that he initially told the defendant

that he was charged with aggravated robbery, but he explained that he believed that the

facts justified the charge. On redirect examination, Detective Smeltzer testified that he

did not believe that the defendant was under the influence of drugs or alcohol. He

described the defendant as rational. He said that the defendant did not appear to have

trouble understanding the questioning.



              The defendant testified that he dropped out of school in the tenth grade

but that he obtained his GED when he was sixteen years old. He said that when he

saw Detective Smeltzer at the Johnson City Police Department, Detective Smeltzer

showed him a picture of Arnold and told him that he had some statements against him.

He said that he was shown the statements but was not given an opportunity to read

them. He stated that Detective Smeltzer told him that the best thing that the defendant

could do was to cooperate. The defendant stated that he told Detective Smeltzer about

his problems with drugs and alcohol and even discussed the possibility of getting



                                             8
treatment, but Detective Smeltzer continued to question him about the robbery. The

defendant said that he eventually gave a statement.



             The defendant testified that he had problems remembering everything

that took place during the interview. He said that he did not remember being read his

rights or signing the waiver of rights form. The defendant claimed that he did not

understand the rights anyway. The defendant stated that he also did not remember

what he said to Detective Smeltzer. He described himself as being out of control and

unstable at the time that he gave the statement. He said that he did not know what he

was doing when he gave the statement, and he claimed that the statement was not

true. The defendant also claimed that he gave the statement because of the discussion

he had with Detective Smeltzer regarding the possibility of drug treatment.



             On cross-examination, the defendant testified that he was under the

influence when he gave the statement. He said that he had used crack cocaine the day

before his arrest and that he had smoked a marijuana cigarette while at work just

before being arrested. The defendant conceded that he was not under the influence of

crack cocaine at the time he gave the statement. He also conceded that he gave

Detective Smeltzer some of the information contained in the statement. The defendant

admitted that his signature appears on the waiver of rights form and the statement. He

acknowledged that Detective Smeltzer read him his rights, and he said that he may

have told Detective Smeltzer that he already knew his rights. The defendant admitted

that he had previously been convicted of a felony involving drugs. He also admitted

that Detective Smeltzer never threatened him, but he claimed that Detective Smeltzer

pressured him to give a statement by telling him he could lose his job and by promising

him that he would get treatment.




                                           9
              At the conclusion of the hearing, the trial court overruled the defendant’s

motion to suppress the statement. The trial court found that the defendant was advised

of his rights before he gave a statement. It also found that the defendant stated that he

understood his rights, and knew what he was doing. The trial court noted that although

the defendant claimed that his memory was not good, the defendant was able to work

and was not under the influence of cocaine. It found that although the defendant had

smoked one marijuana cigarette, the defendant was not under the influence, stating

that the defendant’s own testimony regarding things that he remembered suggested

that the defendant was not intoxicated.



              On appeal, the trial court’s findings of fact at the conclusion of a

suppression hearing will be upheld unless the evidence preponderates otherwise.

State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The defendant bears the burden of

demonstrating that the evidence preponderated against the trial court’s factual findings.

Id. However, the application of the law to the facts as determined by the trial court is a

question of law which is reviewed de novo on appeal. State v. Yeargan, 958 S.W.2d

626, 628-29 (Tenn. 1997).



              In this case, the defendant failed to establish that the evidence

preponderated against the trial court’s factual determinations. The evidence shows that

Detective Smeltzer testified that the defendant stated that he understood his rights

before signing the waiver of rights form. He said that he believed the defendant was

rational and appeared to understand what was taking place. He said that the defendant

did not appear to be under the influence of alcohol or drugs. We agree that this

evidence demonstrates that the defendant knowingly, voluntarily and intelligently

waived his rights and gave a statement. Therefore, we conclude that the defendant’s

motion to suppress the statement was appropriately denied.




                                             10
                 III. INSTRUCTION ON VOLUNTARY INTOXICATION

              The defendant contends that the trial court erred by denying his special

request for an instruction on voluntary intoxication. He argues that an instruction was

necessary given the circumstances surrounding the robbery and his statement to

police. The state responds that there is no evidence to warrant an instruction on

voluntary intoxication. We hold that the trial court did not err by refusing to instruct the

jury regarding voluntary intoxication.



              In criminal cases, the trial court has a duty to charge the jury on all of the

law that applies to the facts of the case. State v. Harris, 839 S.W.2d 54, 73 (Tenn.

1992). Anything short of a complete charge denies a defendant his constitutional right

to trial by jury. State v. McAfee, 737 S.W.2d 304, 308 (Tenn. Crim. App. 1987).



              Voluntary intoxication is not a defense. T.C.A. § 39-11-503(a). However,

“intoxication, whether voluntary or involuntary, is admissible in evidence if it is relevant

to negate a culpable mental state.” Id. This court has stated that “there must be

evidence that the intoxication deprived the accused of the mental capacity to form

specific intent . . . . The determinative question is not whether the accused was

intoxicated, but what was his mental capacity.” Harrell v. State, 593 S.W.2d 664, 672

(Tenn. Crim. App. 1979). If raised by the proof, the trial court is required to instruct the

jury regarding intoxication even if a request for an instruction has not been made. See

State v. Williamson, 919 S.W.2d 69, 80 (Tenn. Crim. App. 1995).



              We do not believe that the issue of voluntary intoxication is fairly raised by

the proof presented at trial. Viewed in the light most favorable to the giving of an

instruction, the proof showed that the defendant bought beer and drugs before robbing

the store. However, there was no evidence introduced to show that the defendant

consumed the beer or used the drugs before he robbed the store. Nor was there any



                                             11
proof relating to whether the defendant was deprived of the mental capacity to form the

requisite specific intent. The defendant’s statement to Detective Smeltzer that he and

Arnold rode around after the robbery and smoked crack cocaine is the only evidence

relating to the defendant’s drug use. However, any evidence of the defendant’s

intoxication after the robbery occurred does not show that the defendant was deprived

of the capacity to form the requisite specific intent for committing the crime.

Accordingly, we conclude that an instruction on voluntary intoxication was not

warranted.



                                    IV. SENTENCING

              The defendant challenges the length of his sentence. He acknowledges

that the trial court carefully weighed enhancement and mitigating factors as required by

T.C.A. § 40-35-210. However, the defendant argues that the trial court gave too much

emphasis to the applicable enhancement factors by initially increasing the defendant’s

sentence to six years before reducing the sentence to five years. He contends that a

four-year sentence was more appropriate. The state responds that the trial court

followed the sentencing principles and that a sentence of five years is warranted under

the circumstances of the case. We hold that the trial court properly sentenced the

defendant to five years in the custody of the Department of Correction.



              Significantly, the defendant does not contest the trial court’s application of

the enhancement and mitigating factors. Rather, he essentially asserts that the trial

court should not have given as much weight to the applicable enhancement factors.

However, the weight to be afforded an existing factor is left to the trial court's discretion

as long as the court complies with the purposes and principles of the 1989 Sentencing

Act and its findings are adequately supported by the record. T.C.A. § 40-35-210,

Sentencing Commission Comments; State v. Moss, 727 S.W.2d 229, 237 (Tenn. 1986);

see State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).



                                             12
              The presentence report reflects that the then twenty-five-year-old

defendant has an adult criminal record consisting of convictions for possession of

cocaine with the intent to distribute, driving under the influence, reckless driving, two

counts of possession and distribution of liquor to a person under twenty-one years of

age, and two counts of driving without a driver’s license. It states that the defendant

committed the present offense while on probation for the offense of possession of

cocaine with the intent to distribute. The report also reflects that as a juvenile, the

defendant was adjudicated guilty of criminal trespass, grand larceny, tampering with a

vehicle, violation of a curfew, possession of stolen property, three counts of petit

larceny, and two counts of possession of a controlled substance. The defendant was

placed on probation for his conduct and was also sent to a juvenile detention center.



              At the conclusion of the sentencing hearing, the trial court sentenced the

defendant as a Range I, standard offender to five years in the custody of the

Department of Correction to be served consecutively to the sentence imposed in

Virginia for possession of cocaine. In sentencing the defendant, the trial court applied

the following enhancement factors as listed in T.C.A. § 40-35-114:

              (1) The defendant has a previous history of criminal
              convictions or criminal behavior in addition to those necessary
              to establish the appropriate range;

              (13)(C) The felony was committed while on probation from a
              prior felony conviction; and

              (20) The defendant was adjudicated to have committed
              delinquent acts as a juvenile that would have constituted
              felonies if committed by an adult.



              In mitigation, the trial court found that the defendant’s criminal conduct did

not cause personal injury, but it gave the factor little weight given the defendant’s threat

of injury in robbing the victim. See T.C.A. § 40-35-113(1). The trial court also

considered the defendant’s lack of prior convictions for violent felonies and his

substance abuse problems. See T.C.A. § 40-35-113(13). The trial court noted as well


                                             13
that the defendant had suffered abuse and neglect as a child at the hands of a parent

who also was an addict. Id. The trial court concluded that the applicable enhancement

factors warranted an increase in the sentence to six years, but it reduced the sentence

to five years given the evidence of mitigation. The record supports the sentence

imposed.



               In consideration of the foregoing and the record as a whole, the judgment

of the trial court is affirmed.



                                                _________________________
                                                Joseph M. Tipton, Judge

CONCUR:



__________________________
Gary R. Wade, Judge



__________________________
William M. Barker, Judge




                                           14
