        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs June 3, 2014

      STATE OF TENNESSEE v. ALLEN CRAFT and CEDRIC MIMS

                  Appeal from the Criminal Court for Shelby County
                       No. 12-02286    Paula Skahan, Judge


               No. W2013-01822-CCA-R3-CD - Filed October 10, 2014


Defendants Allen Craft and Cedric Mims were convicted of first degree felony murder,
especially aggravated robbery, attempted voluntary manslaughter, and employing a firearm
during the commission of a dangerous felony. The trial court sentenced each defendant to
life for the felony murder conviction, with concurrent sentences of twenty years for the
especially aggravated robbery conviction and two years for the attempted voluntary
manslaughter conviction. The trial court also dismissed the charges of employing a firearm
during the commission of a dangerous felony. On appeal, the defendants challenge the
sufficiency of the evidence and the trial court’s refusal to grant a mistrial. Upon our review,
we affirm the judgments of the trial court.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which C AMILLE R. M CM ULLEN,
J., joined. J EFFREY S. B IVINS, J., Not Participating.

Vicki M. Carriker, Memphis, Tennessee, for the appellant, Allen Craft.
R. Todd Mosely (on appeal) and Juni Ganguli (at trial), Memphis, Tennessee, for the
appellant, Cedric Mims.

Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Ray Lepone and Neal Oldham,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                         OPINION

                                           FACTS

       Tekela Phillips Rayford testified that her family owned Phillips Sundry, a grocery
store on Vance Avenue in Memphis, and that her cousin, Ronald Ellington, worked at the
store as a cook. Rayford requested that Ellington keep her company and protect her while
she was at the store alone. On December 3, 2011, Rayford received a phone call informing
her that Ellington had been shot and killed and that two other people also had been shot at
the store.

       Officer Trey Norris of the Memphis Police Department responded to the shooting at
Phillips Sundry. He was informed that three victims had been shot, and two of them were
lying on the ground beside a white SUV when Officer Norris arrived. A blood trail led
officers to the third victim’s residence, an apartment complex several streets away. The
officers learned that the third victim had returned to the scene, and all three victims had been
transported to the hospital.

        James Hendricks, the victim in the attempted voluntary manslaughter judgment,
testified that he grew up near the scene of the shooting. At 1:00 p.m. on December 3, 2011,
Hendricks rode his bicycle to Phillips Sundry, where he saw his friends, Herman Robinson
and Ronald Ellington, sitting in Robinson’s white Dodge Durango in front of the store. He
noticed two young men standing on the corner, one who appeared to be 5’7” to 5’9” tall and
about 17 or 18 years old, and both were wearing gray hoodies, purple bandannas, and blue
jeans. The young man with the darker complexion had his hands in the pocket of his hoodie
as he walked around to the driver’s side of Robinson’s vehicle. Hendricks reached for his
pistol, and the young man suddenly opened fire on Hendricks with what appeared to be a .40
caliber pistol. Hendricks was shot twice and fell, and a friend picked him up and took him
to his mother’s house one block away. As he was leaving, Hendricks heard two or three
more gunshots. When Hendricks arrived at his mother’s house, she took his gun and told him
to go back to the scene, where he told police what had happened.

        Herman Robinson, the victim in the especially aggravated robbery judgment, testified
that, on December 3, 2011, he went to Phillips Sundry and parked his truck in the driveway.
He was joined there by his “best friend,” Ronald Ellington. Subsequently, two young men
wearing bandannas approached his truck, pointed guns, and demanded money. Robinson
told them he did not have any money. The “dark guy” then opened the door, pulled Ellington
out of the vehicle, and took him to the back of the truck. The “little short guy” kept his gun
pointed at Robinson and pulled him out of the vehicle. The shorter man kept demanding
money, so Robinson emptied his pockets and gave him $46 while the man kept his large
pistol pointed at Robinson. Robinson said he heard one gunshot, turned around to see
Ellington fall to the ground, and then heard another gunshot. Realizing he had been shot in
the leg, Robinson fell to the ground. He identified Defendant Mims as the man who shot
him.



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       Keith Austin, Ronald Ellington’s cousin, testified that on December 3, 2011, he was
driving down Fourth Street when he saw the defendants crossing the street on the side of
Phillips Sundry. They told him that Ellington had been shot. At the scene, Austin saw that
Robinson had been shot in the leg and Ellington in the chest. He saw the defendants standing
on the sidewalk and asked what they had just done. One “reached down like he had
something,” so Austin drove off in fear that he had a gun.

       Afterwards, Austin and his cousin, Larry Perry, got in Austin’s other car and started
looking for the defendants. When they found Defendant Mims talking to a woman at a bus
stop, Austin displayed a gun and told Mims to get in the car. Mims told him that he did not
shoot anyone but admitted that he participated in the robbery. They attempted to take Mims
back to the police on the scene, but Mims escaped. As he struggled to escape, Mims’ pants,
containing a garbage bag and $40, came off, all of which Austin gave to the police.

        Romedarrious Humphrey testified that he knew both defendants from the
neighborhood and that, on the day of the shooting, he saw the defendants with Melvin
Bridgewater. Defendant Mims told Humphrey, “[M]an, we fixing to go rob and lay these
folks down in front of the store.” One of the defendants was wearing a gray jacket and the
other a black jacket. The defendants left and when they returned, their faces were covered
with bandannas and they proceeded to walk to Phillips Sundry, where they approached
Robinson’s truck. Humphrey saw Defendant Craft run to the driver’s side, pull the driver
out of the truck, and shoot him in the leg. Defendant Mims opened the passenger side door
and shot the passenger in the chest. Humphrey heard about five gunshots and waited to run
to the victims until the defendants had fled the scene.

       Prior to the shooting, Humphrey had hidden his .40 caliber pistol underneath a bag of
leaves because the police were conducting searches in the neighborhood, and he later
discovered that the gun was missing. He asked Defendant Craft about the gun, and Craft
replied, “[Y]eah, I got it.” Humphrey testified that Defendant Mims belonged to the Kitchen
Crips gang and that Defendant Craft belonged to the Grape Street Crips gang.

      Sergeant Joe Stark testified that Defendant Mims told him that he was a member of
the Goon Squad gang and that Bridgewater wanted to initiate him into the Kitchen Crips
gang. Mims said that Bridgewater told him that because he had been taking care of Mims,
Mims had to do something in exchange and threatened to kill him if he did not do so.
Bridgewater then told Mims that he wanted him to rob someone who owed him money.

      On December 3, 2011, Bridgewater took Mims and Craft for a ride to find the man
he wanted them to rob. He pointed out a man who was walking two dogs, saying that the
man had received a $1500 check and should have cash in his pocket. Bridgewater then took

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the defendants to another neighborhood, where he got out of the car, returned carrying a
black bag, and handed a nine-millimeter pistol to Mims and a .40 caliber pistol to Craft.
Mims said that Bridgewater put bleach on the bullets before putting them back in Craft’s gun
and told Mims that his gun was not loaded.

        Bridgewater and the defendants then started looking for the intended victim again and
found his vehicle parked in front of Phillips Sundry. Bridgewater directed the defendants to
approach the vehicle from different directions. Mims said he was scared and did not want
to do it, but Craft put a bullet in his chamber and told him, “[M]an, I got your back.” They
walked up to the passenger side of the car and “put a gun” on the passenger. Craft walked
around to the driver’s side, opened the door, and pulled the driver out of the truck. Mims
was “patting the driver down to see if he had anything” when the passenger suddenly tried
to escape. He said Defendant Craft caught the passenger and then he heard gunshots. The
driver grabbed Mims’ wrist, causing his gun to discharge.

       Defendant Mims then ran across the street to where Bridgewater had been watching
from the gate. Bridgewater told him to go to his “baby mama’s house,” which Mims did.
When Bridgewater arrived at the house, he gave them new clothes and made them wash their
hands with bleach.

       Defendant Mims told Sergeant Stark that Defendant Craft had stolen $50 and that
Bridgewater had given him $40. Mims was later talking to his girlfriend when Perry
suddenly pulled up, got out of the car with a gun pointed at him, and told him to get in the
car. Another man then hit Mims in the back of his head and put him in the car. They wanted
to know where Craft was and threatened to kill Mims if he did not tell them. While they
were driving around, Mims jumped out of the car window and ran away, losing his pants in
the process.

      Defendant Mims said that Defendant Craft was responsible for shooting Ellington.
Mims admitted that, during the robbery, he wore a gray jacket, black hat, black bandanna,
black gloves, black jeans, and black shoes and that Craft wore a black hoodie, purple
bandanna, blue jeans, and white Air Force Ones shoes.

      Defendant Mims said he heard Defendant Craft fire thirteen to fourteen gunshots and
saw him shoot the man, with whom he had been fighting, in the chest and stomach area.
Mims said that he was scared of Bridgewater because he had threatened to kill him if he did
not commit the robbery.

      Sergeant Israel Taylor testified that he and Sergeant Robert Scoggins interviewed
Defendant Craft on December 7, 2011. Craft said that Bridgewater made him commit the

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robbery and that Mims shot Ellington. When they first saw the victim, Bridgewater handed
Craft a pistol and threatened to shoot him if he did not go get the money from the victim.
Then, as they approached the truck, Mims walked to the driver’s side, opened the door, and
asked the driver where the money was. The driver started wrestling with Mims over his gun.
Mims shot the driver and then the passenger, who had run ran over to the driver’s side to help
the driver.

       Defendant Craft said that he was wearing a tan and black hoodie, blue jeans, and Air
Force Ones shoes during the robbery and that his face was covered with a black rag. He
recalled that Defendant Mims was wearing a gray jacket, a black hat, and a purple rag
wrapped around his face.

       Defendant Mims testified that he was fifteen years old when he joined the Goon
Squad gang, of which Bridgewater was the leader until he joined the Kitchen Crips gang.
Bridgewater was also known as “Melbo the Beast” because he was a “dangerous guy to be
around.” He started taking care of Mims by providing him with shelter, clothes, and food.
Mims explained that Bridgewater took care of many young men because they would do
anything he asked in exchange for his protection.

       Bridgewater told Mims that Ellington owed him money and that he needed Mims and
Craft to get the money for him. When Mims told him that he did not want to rob Ellington,
he told Mims that he did not have a choice and that if he did not do so, Bridgewater was
going to “take care of [him],” meaning he was going to shoot him. Mims knew he was
capable of doing so because Bridgewater had previously shot two other people.

        Defendant Mims said that, on December 3, 2011, Bridgewater came to the house
where Mims was staying and told him to get into his car, threatening to kill him if he did not
comply. Bridgewater handed him a nine-millimeter pistol while he wiped down another gun
with bleach. He told the defendants that Ellington had been paid $1500 and that he owed
him money. As the defendants approached the victim’s vehicle, Bridgewater was watching
them as he carried a .357 Magnum pistol in his hand. Bridgewater threatened to kill Mims
if he did not rob Ellington. Mims opened the driver’s side door and asked where the money
was. The driver said he did not have any money, and Mims told him, “I ain’t playing.” The
driver then gave Mims $40. Mims looked up and saw a man pointing a gun at him, telling
him to drop his gun. The driver then reached for Mims’s arm, and Mims fired a shot. Mims
said that “everything went out of control and we were wrestling and tussling.” Mims then
fled the scene.

      Dr. Miguel Laboy, who performed the autopsy on Ellington, testified that he had a
gunshot wound to the right side of his chest, which exited his back left side. The cause of

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death was a gunshot wound to the chest.

                                         ANALYSIS

                               I. Sufficiency of the Evidence

        On appeal, both defendants argue that the State presented insufficient evidence at trial
to sustain their convictions for first degree felony murder, especially aggravated robbery, and
attempted voluntary manslaughter because they acted under duress.

       In considering this issue, we apply the rule that where sufficiency of the convicting
evidence is challenged, the relevant question 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 (1979); see also Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions
whether by the trial court or jury shall be set aside if the evidence is insufficient to support
the findings by the trier of fact of guilt beyond a reasonable doubt.”); State v. Evans, 838
S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim.
App. 1992). All questions involving the credibility of witnesses, the weight and value to be
given the evidence, and all factual issues are resolved by the trier of fact. See State v.
Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “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.” State v. Grace, 493 S.W.2d 474, 476 (Tenn.
1973). Our supreme court stated the rationale for this rule:

              This well-settled rule rests on a sound foundation. The trial judge and
       the jury see the witnesses face to face, hear their testimony and observe their
       demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be given
       to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212
Tenn. 464, 370 S.W.2d 523 (1963)). “A jury conviction removes the presumption of
innocence with which a defendant is initially cloaked and replaces it with one of guilt, so that
on appeal, a convicted defendant has the burden of demonstrating that the evidence is
insufficient.” State v. Biggs, 211 S.W.3d 744, 747-48 (Tenn. Crim. App. 2006). See State
v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).



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        First degree felony murder is the “killing of another committed in the perpetration of
or attempt to perpetrate any . . . robbery[.]” Tenn. Code Ann. § 39-13-202(a)(2). Especially
aggravated robbery is robbery “[a]ccomplished with a deadly weapon” where the victim
suffers “serious bodily injury.” Tenn. Code Ann. § 39-13-403(a). Voluntary manslaughter
is “the intentional or knowing killing of another in a state of passion produced by adequate
provocation sufficient to lead a reasonable person to act in an irrational manner.” Tenn.
Code Ann. § 39-13-211(a). Furthermore, “[a] person commits criminal attempt who, acting
with the kind of culpability otherwise required for the offense”:

              (1) Intentionally engages in action or causes a result that would
       constitute an offense, if the circumstances surrounding the conduct were as the
       person believes them to be;

             (2) Acts with intent to cause a result that is an element of the offense,
       and believes the conduct will cause the result without further conduct on the
       person’s part; or

               (3) Acts with intent to complete a course of action or cause a result that
       would constitute the offense, under the circumstances surrounding the conduct
       as the person believes them to be, and the conduct constitutes a substantial step
       toward the commission of the offense.

Tenn. Code Ann. § 39-12-101(a).

        The proof against both defendants was abundant. Herman Robinson, the victim in the
especially aggravated robbery judgment, testified how the defendants acted in concert, the
“dark guy” taking Ellington from the vehicle to the rear and shooting him in the chest.
Robinson identified Defendant Mims as the man who forced him from the truck and shot him
in the leg. Later, Keith Austin and his cousin found Defendant Mims on the street. He
denied shooting anyone but admitted participating in the robbery. He escaped when they
tried to take him into custody. Romedarrious Humphrey, who was acquainted with both
defendants, testified that he witnessed Defendant Craft force the driver from the truck and
shoot him in the leg, as Defendant Mims pulled the passenger from the truck and shot him
in the chest. In his statement, Defendant Mims admitted being at the crime scene and
“patting” down the driver to check for money when the driver grabbed at Mims, causing his
pistol to discharge. He said that Defendant Craft caught the passenger as he tried to escape,
and Mims then heard gunshots. Further, he said that Craft had gotten $50, apparently from
the passenger. By contrast, Craft said that it was Mims who had shot both the driver and the
passenger.



                                              -7-
       From this proof, we conclude that a reasonable jury could have determined that the
defendants, intending to act in concert and rob the victims, encountered unanticipated
resistance and reacted by killing one victim, wounding the other two, and taking a sum of
money. Accordingly, the proof supports each of the judgments.

      In considering the defendants’ assertion of duress as a defense to their convictions,
we apply the following statute:

               (a) Duress is a defense to prosecution where the person or a third person
       is threatened with harm that is present, imminent, impending and of such a
       nature to induce a well-grounded apprehension of death or serious bodily
       injury if the act is not done. The threatened harm must be continuous
       throughout the time the act is being committed, and must be one from which
       the person cannot withdraw in safety. Further, the desirability and urgency of
       avoiding the harm must clearly outweigh the harm sought to be prevented by
       the law proscribing the conduct, according to ordinary standards of
       reasonableness.

             (b) This defense is unavailable to a person who intentionally,
       knowingly, or recklessly becomes involved in a situation in which it was
       probable that the person would be subjected to compulsion.

Tenn. Code Ann. § 39-11-504. If admissible evidence supporting a duress defense is
introduced, the State must negate the defense beyond a reasonable doubt before the defendant
may be convicted. Id. § 39-11-201(a)(3).

       We have set out the defendants’ statements to police officers that they were afraid of
physical harm from Melvin Bridgewater, a gang member, if they did not commit the robbery
which he had ordered. We note that their statements were self-serving and that they did not
show they could not have withdrawn in safety or that the harm with which they were
threatened clearly outweighed the harm to be prevented by the laws regarding robberies and
violence to other persons.

       At trial, the jury was instructed on the definition of duress and told that if evidence
was introduced supporting the defense of duress, the State had the burden to rebut the
defense beyond a reasonable doubt and that any reasonable doubt on the issue of whether the
defendants acted under duress required the defendants to be found not guilty. The jury is
presumed to follow its instructions. State v. Young, 196 S.W.3d 85, 111 (Tenn. 2006). The
jury’s guilty verdicts indicate that it found that the State rebutted the defendants’ duress
defense beyond a reasonable doubt, and the record was sufficient for a reasonable jury to

                                              -8-
make this determination.

                             II. Denial of Motions for Mistrial

       The defendants contend that the trial court erred in denying their motions for mistrials
based upon Keith Austin’s testimony that the witness, Larry Perry, was unavailable because
he had been shot the night before.

        A mistrial should be declared in criminal cases only in the event that a manifest
necessity requires such action. State v. Middlebrooks, 819 S.W.2d 441, 443 (Tenn. Crim.
App. 1991). A mistrial is an appropriate remedy when a trial cannot continue or a
miscarriage of justice would result if it did. State v. McPherson, 882 S.W.2d 365, 370 (Tenn.
Crim. App. 1994). The decision to grant a mistrial lies within the sound discretion of the trial
court, and this court will not interfere with the exercise of that discretion absent clear abuse
appearing on the face of the record. See State v. Hall, 976 S.W.2d 121, 147 (Tenn. 1998).
Moreover, the burden of establishing the necessity for mistrial lies with the party seeking it.
State v. Williams, 929 S.W.2d 385, 388 (Tenn. Crim. App. 1996).

       Upon the defendants’ motion for mistrial, the defendants argued that the implication
from the State’s question to Austin about Perry’s whereabouts and his subsequent answer
was that the defendants were retaliating and responsible for the shooting of the witness.
However, the trial court concluded that a mistrial was not warranted because there was no
evidence offered as proof to merit the conclusion that the defendants engaged in retaliation.
We agree.

       We conclude that even if Keith Austin’s response to the State’s question regarding
Larry Perry’s whereabouts was improper, any error was harmless beyond a reasonable doubt
and did not create a “manifest necessity” for a mistrial. As an initial matter, the defense did
not raise an objection to the State’s question prior to the witness’s answer and therefore
allowed the jury to hear the testimony. The record does not reflect that the prosecutor
deliberately elicited the testimony in order to create an inference of guilt. Rather, as the trial
court found, the testimony was relevant to explain to the jury the reason for the key witness’s
absence. In addition, the trial court gave a curative instruction to the jury, which we must
presume was followed. See Young, 196 S.W.3d at 111.




                                               -9-
                                     CONCLUSION

       Based on the foregoing reasoning and authorities, the judgments of the trial court are
affirmed.


                                              _________________________________
                                              ALAN E. GLENN, JUDGE




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