             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT JACKSON
                                Assigned on Briefs January 11, 2005

                      STATE OF TENNESSEE v. PERRY BARNUM

                     Direct Appeal from the Criminal Court for Shelby County
                            No. 02-05705   James C. Beasley, Jr., Judge



                        No. W2004-01353-CCA-R3-CD - Filed March 4, 2005


The defendant appeals his conviction for robbery, (1) contesting the sufficiency of the identification
evidence, and (2) contending that his enhanced sentence of fourteen years was imposed errantly in
light of Blakely v. Washington. Upon review, we conclude that the evidence was indeed sufficient
to support the jury’s verdict and that the defendant’s prior convictions warrant the enhanced sentence
of fourteen years. We affirm the judgment of the trial court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID G. HAYES and J.C.
MCLIN , JJ., joined.

Robert Wilson Jones, District Public Defender, and Robert Hayes Gowen, Assistant Public
Defender, for the appellant, Perry Barnum.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Nicole Duffin, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                                    OPINION

        Following a jury trial, the defendant, Perry Barnum,1 was convicted of one count of robbery
(a Class C felony). At the sentencing hearing, the trial court found two enhancement factors to be
applicable and sentenced the defendant to fourteen years as a Range III, persistent offender; the
judgment was entered on April 16, 2004. On May 27, 2004, the defendant filed an untimely motion
for new trial, which was overruled by the trial court; the defendant also filed a notice of appeal to
this Court on that day. On appeal, the defendant challenges the sufficiency of the identification


         1
           The defendant’s name is spelled interchangeably as “Barnum,” “Barnham,” and “Barham” throughout the
record. The style of this Court’s opinion contains the name “Barnum,” which is used in the both the indictment and the
judgment of the trial court.
evidence and the enhanced sentence of fourteen years, in light of the Supreme Court’s recent holding
in Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004).

                                                Facts

        The record reflects that in the early morning hours of February 17, 2002, the victim, Debra
Smith, was attacked as she attempted to return to her apartment after visiting a casino. The assailant
beat the victim with his fists, kicked her, and hit her with her cellular phone. During the attack,
which lasted approximately five to ten minutes, the victim’s phone and five dollars were taken from
her. The victim testified that, as the assailant fled past a nearby light, she was able to see the
individual. The victim then went inside her apartment and slept until later that morning.

        A few hours later, the victim received a phone call from her husband, who informed her that
her phone had been recovered by police. The victim subsequently went to the police station, where
she identified her cellular phone and filed a police report, which included a brief description of her
attacker. An officer later testified at trial that the description given by the victim in the report
matched the defendant, who was found in possession of the victim’s cellular phone. Thereafter, the
victim was shown a photographic lineup of six individuals, From that lineup, the victim positively
identified the defendant as her attacker.

        The defendant now appeals, contending that the identification evidence was insufficient to
support the verdict and that the enhanced sentence was imposed in error. In response, the State
argues that: (1) the motion for new trial and notice of appeal were untimely, therefore the appeal
should be dismissed; (2) the evidence was sufficient to support the conviction; and (3) the conviction
should stand because the defendant’s prior convictions justify the enhanced sentence of fourteen
years.

                      Untimely Motion for New Trial and Notice of Appeal

       The State argues that the defendant’s appeal should be dismissed for failure to timely file his
motion for new trial and notice of appeal. The State correctly argues that the defendant’s motion for
new trial was untimely and that this Court does not have authority to waive the untimely filing of a
motion for new trial. See Tenn. R. Crim. P. 33(b); State v. Givhan, 616 S.W.2d 612, 613 (Tenn.
Crim. App. 1980). Moreover, the State correctly asserts that an untimely motion for new trial
deprives the defendant of the opportunity to argue on appeal any issues that were or should have
been raised in the motion for new trial. State v. Martin, 940 S.W.2d 567, 569 (Tenn. 1997).

        However, in the present case, the issues presented on appeal were not required to be raised
in the motion for new trial. State v. Williams, 675 S.W.2d 499, 501 (Tenn. Crim. App. 1984) (citing
State v. Durham, 614 S.W.2d 815, 816 n.1 (Tenn. Crim. App. 1981)). As such, they are not waived.
Further, the untimely notice of appeal, unlike the motion for new trial, is not jurisdictional and can
be waived by this Court “in the interest of justice.” Tenn. R. App. P. 4(a). Therefore, concluding



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that it is in the interest of justice, we will waive the untimely notice of appeal and proceed to the
merits of the defendant’s argument.

                                        Sufficiency of the Evidence

        The defendant first challenges the sufficiency of the identification evidence to support the
robbery conviction. In Tennessee, great weight is given to the result reached by the jury in a criminal
trial. A jury verdict accredits the State’s witnesses and resolves all conflicts in favor of the State.
State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994). On appeal, the State is entitled to the strongest
legitimate view of the evidence and all reasonable inferences that may be drawn therefrom. State
v. Elkins, 102 S.W.3d 578, 581 (Tenn. 2003). Moreover, a guilty verdict removes the presumption
of innocence which the appellant enjoyed at trial and raises a presumption of guilt on appeal. State
v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). The appellant has the burden of overcoming this
presumption of guilt. Id.

        Where sufficiency of the evidence is challenged, the relevant question for an appellate court
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 or crimes beyond a reasonable doubt.
Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d
560 (1979); State v. Abrams, 935 S.W.2d 399, 401 (Tenn. 1996). The weight and credibility of the
witnesses’ testimony are matters entrusted exclusively to the jury as the triers of fact. State v.
Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App.
1996).

        In the present case, the defendant challenges only the sufficiency of the identification
evidence. Initially, we note that identification of the defendant as the individual who committed the
offense is a question of fact for the jury. State v. Strickland, 885 S.W.2d 85, 87 (Tenn. Crim. App.
1993). Moreover, the victim’s identification alone is sufficient to support a conviction. Id. In the
present case, the victim testified that she was beaten and robbed at approximately two o’clock in the
morning as she returned home from a casino. The victim further stated that, although her porch light
and the nearest street light were out, she was able to identify her attacker because other lights in her
apartment complex were lit and because the attacker turned to look at her as he ran toward a light.
Moreover, an investigating officer testified that the victim’s description given in the police report
matched the description of the defendant, who was found to be in possession of the victim’s cellular
phone. Finally, the victim identified the defendant out of a photographic lineup of six individuals.

        The jury in the present case accredited the testimony of the State’s witnesses and found that
the victim properly identified the defendant as the individual who attacked her. We likewise
conclude that the identification evidence was sufficient for a rational trier of fact to find the
defendant guilty beyond a reasonable doubt. As such, we will not disturb the jury’s verdict.




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                                               Blakely

         Second and finally, the defendant challenges his enhanced sentence based on the Supreme
Court’s recent holding in Blakely v. Washington. Blakely requires that enhancement factors be
either admitted by the defendant or found by a jury determination beyond a reasonable doubt.
Blakely, 124 S. Ct. at 2537. The sole exception to this rule is that state law may authorize a trial
judge to increase a sentence beyond the maximum based upon “the fact of a prior conviction.” Id.
at 2536. The defendant contends that the trial court based its enhanced sentence of fourteen years,
in part, upon an errant application of factor (12), which was neither admitted by the defendant nor
found by the jury beyond a reasonable doubt.

        In the present case, the defendant was convicted of robbery, a Class C felony, which carries
a Range III penalty of between ten and fifteen years. The court found two enhancing factors
applicable: (2) the defendant has a previous history of criminal convictions; and (12) the felony
resulted in death or bodily injury or involved the threat of death or bodily injury to another person
and the defendant has previously been convicted of a felony that resulted in death or bodily injury.
The defendant received an enhanced sentence of fourteen years.

        The trial court noted that the defendant had previously been convicted of: aggravated assault,
sexual battery, aggravated robbery, driving on a revoked license, simple possession, possession of
contraband inside a penal facility, attempted escape, and four counts of assault. The trial court
further noted that it would:
        consider [the defendant’s] prior criminal behavior, specifically the assaultive nature
        of a good number of his prior convictions. The court will put much more weight on
        that enhancement factor than the fact that this case involved bodily injury and he’s
        had prior convictions involving bodily injury.
We conclude that the defendant’s criminal history is so extensive as to warrant the enhanced
sentence, notwithstanding the errant application of factor (12). Therefore, we affirm the enhanced
sentence of fourteen years.

                                             Conclusion

       We affirm the judgment and the sentence imposed by the trial court.




                                                       ___________________________________
                                                       JOHN EVERETT WILLIAMS, JUDGE




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