         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs February 10, 2004

              STATE OF TENNESSEE v. CORNELIUS RICHMOND

                  Direct Appeal from the Criminal Court for Shelby County
                         No. 00-06743-46    Joseph B. Dailey, Judge



                     No. W2003-00683-CCA-R3-CD - Filed March 1, 2004


A Shelby County jury convicted the defendant, Cornelius Richmond, of one count of robbery and
three counts of forgery. The trial court ordered the defendant to serve an effective sentence of thirty-
three years as a career offender. On appeal, the defendant contends: (1) the trial court erred in
denying his motion to suppress his statement to the police; (2) the evidence is insufficient to support
his robbery conviction; and (3) the trial court erred in failing to instruct the jury on facilitation as
a lesser-included offense. Upon review of the record and the applicable law, we affirm the
judgments of the trial court.

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

JOE G. RILEY , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and ROBERT
W. WEDEMEYER , JJ., joined.

Brett B. Stein, Memphis, Tennessee, for the appellant, Cornelius Richmond.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Betsy Carnesale, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

         On November 9, 1999, the defendant and his accomplice, Nickie Kirby, snatched a purse
from Shirley Christie, the seventy-eight-year-old victim, and used a credit card found inside the
purse to purchase various items from Goldsmith’s. Mrs. Christie testified that at approximately 1:00
p.m., while approaching her vehicle parked in a lot near Grady’s Restaurant in Shelby County,
Tennessee, a white vehicle pulled behind her vehicle. While the vehicle’s engine was running, a
man exited the vehicle, and a second man remained seated on the driver’s side. Mrs. Christie
testified the man who exited the vehicle then ran up to her and demanded her purse. When she
refused, the man attempted to take her purse while she continued to resist. Mrs. Christie stated that
as she was screaming, the man knocked her down, took her purse, and fled. Employees from a
nearby business then came to her aid and called the police. Mrs. Christie testified that as a result
of the fall, she suffered from a compressed vertebrae and had to wear a back brace for six months.
        Mrs. Christie stated her purse contained various credit cards from Goldsmith’s, BP, Dillard’s,
and Exxon, and some of these cards were in her husband’s name. She further stated neither she nor
her husband gave anyone permission to use the credit cards. Mrs. Christie testified she did not
adequately view either of the two men during the incident and that she would be unable to identify
them if she saw them again.

        Emanueal Thomas testified that on November 9, while working as a loss-prevention manager
at Goldsmith’s at the Southland Mall, he observed two men purchasing a ring from the jewelry
department. Thomas stated he then went to the camera room where he observed both of the men
selecting various items from the young men’s department without first looking at the prices. The
two men then went to the shoe department where they both placed various merchandise on the
counter. Thomas testified one of the men walked away from the counter while the other man paid
for the merchandise with a Goldsmith’s credit card.

        Thomas testified he pulled up the transaction on his computer and obtained the account
number of the credit card. He then attempted to contact the customer but was successful in his
attempts only after the men left the store. Thomas stated he described the men to the customer, who
stated that the men were unauthorized users and that the credit card had been stolen.

        Thomas testified the two men reentered the store the next day, and he then called the police.
Thomas stated that when the men were apprehended, one of the suspects had three receipts from
Goldsmith’s in his possession. Each receipt was dated November 9 and bore the account number
of a Goldsmith’s credit card issued to Fred Christie. Thomas stated the first receipt was for jewelry
in the amount of $324.75; the second receipt was for merchandise in the amount of $229.48; and the
third receipt was for shoes in the amount of $194.83. Thomas was unable to recognize the defendant
in court as one of the perpetrators.

       Officer Sam Blue of the Memphis Police Department testified that on November 10 between
2:00 and 3:00 p.m., he and his partner arrested the defendant and Nickie Kirby at Goldsmith’s inside
the Southland Mall. Officer Blue stated he found Kirby in possession of various receipts from
Goldsmith’s, an Exxon and a BP gas card issued to Fred Christie, and a Dillard’s credit card issued
to Mrs. Fred Christie.

        Lieutenant Reginald Morgan testified he interviewed the defendant after he was arrested and
that, upon waiving his rights, the defendant gave a statement admitting to participating in the robbery
with “Nick” who was driving a white Jeep Cherokee. In his statement, which was read into evidence,
the defendant explained:

               I was driving a black Buick following in [sic] the Jeep Cherokee. We pulled
       up in some apartments. I parked the vehicle. He came up in the Jeep Cherokee. I
       got into the Jeep Cherokee after he asked me to ride. We was riding, and [N]ick
       said, “Let’s go and get some money.” I said, “How is you going to get it?” He said,
       “What I do best, that is snatching a purse.”



                                                 -2-
                We were sitting on the lot in the Jeep Cherokee. I was on the passenger’s
        side, and Nick was driving. Nick said, “Let’s get her.” And I said, “No, man.” Then
        he pulled up, and we both got out, and he said, “Let’s get her.” We both ran over to
        her, and Nick said, “Drop the purse” and she did. I got the purse after she dropped
        it. We ran off and got back into the jeep. We drove back to the apartments and we
        got back into the black Buick and we drove off.

The defendant further informed the officers that although he did not use the credit cards found inside
the purse, “Nick” used them at Goldsmith’s in the Southland Mall to purchase a ring and various
articles of clothing from which the defendant received a pair of jeans and a shirt.

        The defendant offered no proof at trial.

        The defendant was charged with one count of robbery by violence, one count of robbery by
fear, and three counts of forgery under $500. The jury acquitted the defendant of robbery by
violence and convicted him of the remaining charges. Following a sentencing hearing, the trial court
sentenced the defendant as a career offender to fifteen years for the robbery conviction and six years
for each forgery conviction to be served consecutively, for an effective sentence of thirty-three years.

                                       I. MOTION TO SUPPRESS

        The defendant contends the trial court erred in denying his motion to suppress his statement
to the police because he was not afforded a prompt judicial determination of probable cause after
his warrantless arrest in violation of the Fourth Amendment.1 We disagree.

A. Suppression Hearing

        During the suppression hearing, Officer Sam Blue testified he arrested the defendant and
Nickie Kirby on November 10 between 2:00 and 3:00 p.m. at Goldsmith’s. Officer Blue stated the
security guard at the store advised him that two men had purchased various items using a stolen
credit card on the previous day and that they were then at the store attempting to return the items.
Officer Blue further stated that upon arriving at the store, he observed the defendant and another
man standing at the counter attempting to return a “gold lion’s-head” ring. The officer approached
the two men and requested identification. The officer found credit cards issued to a person whose
last name was Christie in the possession of one of the men. Officer Blue stated that upon further
investigation, he discovered that a robbery had occurred involving Mrs. Christie. The officer
arrested both men and transported them to the police station.

        Lieutenant Reginald Morgan testified he interviewed the defendant on November 10, the
same day on which the defendant was arrested. The officer further stated the defendant was arrested
at approximately 2:40 p.m.; he arrived at the police station at approximately one hour later; and the


        1
         The defendant does not argue that his detention also violates Rule 5(a) of the Tennessee Rules of Criminal
Procedure. Regardless, we discern no violation under the facts and circumstances of this case.

                                                       -3-
interview began at approximately 7:00 p.m., about four hours after the defendant was arrested.
Lieutenant Morgan testified the investigation into the robbery was “on-going,” and the defendant
was brought to the robbery bureau where he was interviewed in order to continue with the
investigation. Lieutenant Morgan stated that between the time the defendant was brought to the
robbery bureau and the time of the interview, officers continued to gather information regarding the
robbery.

       Lieutenant Morgan testified he advised the defendant of his rights, and the defendant then
read and signed an “advice of rights form.” Lieutenant Morgan stated he presented the defendant
with the waiver of rights form at 7:00 p.m. and that the defendant signed the form at 7:03 p.m.
Lieutenant Morgan testified the defendant gave three separate statements that night. The first
statement pertained to the robbery involving Shirley Christie, while the last two statements involved
two separate robberies. According to the officer, the first statement was taken at 8:53 p.m., and the
defendant signed the statement at 9:45 p.m.

        At the conclusion of the proof, the parties stipulated that according to the affidavit of complaint,
the probable cause determination was made on November 12 at 9:27 a.m. Thus, it was agreed that
the defendant was formally charged within forty-eight hours of his arrest.

B. Trial Court’s Findings

        In denying the defendant’s motion to suppress, the trial court found law enforcement officials
did not hold the defendant solely to obtain a statement from him, which the officers could then use
to establish probable cause to present the defendant to a magistrate. The court noted the officers
possessed evidence independent of the defendant’s statement, including the stolen credit cards
themselves. The trial court further noted the officers advised the defendant of his rights prior to
taking his statement, and the probable cause determination was made within thirty-six hours of his
arrest. The court found the officers, thus, satisfied the requirements of the Fourth Amendment to
the United States Constitution.

C. Standard of Review

        The findings of fact made by the trial court at the hearing on a motion to suppress are binding
upon this court unless the evidence contained in the record preponderates against them. State v.
Ross, 49 S.W.3d 833, 839 (Tenn. 2001). The prevailing party is entitled to the strongest legitimate
view of the evidence and all reasonable and legitimate inferences that may be drawn from that
evidence. State v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001). However, the application of the law
to the facts found by the trial court are questions of law that this court reviews de novo. State v.
Daniel, 12 S.W.3d 420, 423 (Tenn. 2000). Absent a showing by the defendant that the evidence
preponderates against the judgment of the trial court, this court must defer to the ruling of the trial
court. State v. Cribbs, 967 S.W.2d 773, 795 (Tenn.1998).




                                                    -4-
D. Analysis

        The Fourth Amendment requires a prompt judicial determination of probable cause after a
warrantless arrest. Gerstein v. Pugh, 420 U.S. 103, 125, 95 S. Ct. 854, 869, 43 L. Ed. 2d 54 (1975);
State v. Carter, 16 S.W.3d 762, 765 (Tenn. 2000). Judicial determinations of probable cause are
generally to be made within forty-eight hours of the arrest. County of Riverside v. McLaughlin, 500
U.S. 44, 56, 111 S. Ct. 1661, 1670, 114 L. Ed. 2d 49 (1991). However, the probable cause
determination does not pass constitutional muster simply because it occurs within forty-eight hours.
Id. Rather, a probable cause determination may not pass constitutional muster if it was unreasonably
delayed for the purpose of gathering evidence to justify an arrest, the delay was simply for delay’s
sake, or the delay was motivated by ill will against the arrested individual. Id; see State v.
Huddleston, 924 S.W.2d 666, 671-72 (Tenn. 1996).

        The defendant does not contend a probable cause determination occurred outside the forty-
eight-hour time period. Rather, the defendant submits that the police officers delayed the
determination in order to secure an incriminating statement from him. The evidence presented at
the suppression hearing established that the defendant was arrested between 2:00 and 3:00 p.m.; he
executed a waiver of rights form at approximately 7:00 p.m.; and he gave a statement relating to the
present case at 8:53 p.m. There was no reason for the officer to further justify the arrest because the
arresting officer clearly had probable cause to arrest the defendant when he and his co-perpetrator
were taken into custody at Goldsmith’s. The magistrate made a determination of probable cause
approximately thirty-six hours after the defendant’s arrest. As the trial court noted, the police
officers were conducting an on-going investigation and possessed evidence linking the defendant to
the offense independent of the defendant’s statement. We conclude the defendant was taken before
a magistrate within forty-eight hours, and the determination of probable cause was not unreasonably
delayed. Therefore, the trial court properly denied the defendant’s motion to suppress.

                                II. SUFFICIENCY OF THE EVIDENCE

       The defendant contends the evidence presented at trial is insufficient to support his
conviction for robbery by putting the victim in fear.2 We disagree.

A. Standard of Review

         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. Elkins, 102 S.W.3d 578, 581 (Tenn. 2003). The weight and credibility
of the witnesses’ testimony are matters entrusted exclusively to the jury as the triers of fact. State



         2
         The defendant does not argue that the evidence is insufficient to support the forgery convictions. Regardless,
we conclude the evidence is sufficient to support these convictions.

                                                         -5-
v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim.
App. 1996).

B. Analysis

        The defendant was convicted of robbery based upon criminal responsibility for the conduct
of another. As applicable to the present case, one is criminally responsible for an offense committed
by the conduct of another if “[a]cting with intent to promote or assist the commission of the offense,
or to benefit in the proceeds or results of the offense, the person solicits, directs, aids, or attempts
to aid another person to commit the offense.” Tenn. Code Ann. § 39-11-402(2). Robbery, as
applicable to the case at bar, is “the intentional or knowing theft of property from the person of
another by . . . putting the person in fear.” Id. § 39-13-401(a). Theft of property occurs when a
person who intends to deprive the owner of property “knowingly obtains or exercises control over
the property without the owner’s effective consent.” Id. § 39-14-103. Fear as an element of robbery
involves fear of “present personal peril from violence offered or impending” and must be a fear of
“bodily danger or impending peril to the person which intimidates or promotes submission to the
theft of the property.” State v. Bowles, 52 S.W.3d 69, 80 (Tenn. 2001) (citations omitted).
Furthermore, the fear must precede or occur contemporaneously with the taking of property from
the person. State v. Owens, 20 S.W.3d 634, 641 (Tenn. 2000).

        In challenging his robbery conviction, the defendant maintains the evidence is insufficient
to establish identity because the victim failed to identify him at trial as the perpetrator. The defendant
further submits the evidence is insufficient to establish that the victim was placed in fear. We
disagree.

        The seventy-eight-year-old victim testified that while she was standing in a parking lot, two
men arrived in a white vehicle. The victim stated the passenger exited the vehicle, approached her,
and demanded her purse. When the victim refused, the passenger attempted to take the purse from
her; the victim began screaming; and the passenger pushed the victim onto the ground, took her
purse, and fled.

        Emanueal Thomas testified that he observed two men select various items from a
Goldsmith’s store, and one of the men paid for the merchandise using a Goldsmith’s credit card
issued to Fred Christie. Thomas then learned that the credit card had been stolen. When the two
men returned the next day, Thomas called the police. Officer Blue testified that upon arresting the
defendant and Kirby, he discovered credit cards issued to the victim and her husband in Kirby’s
possession.

        Furthermore, the defendant gave a statement to the police in which he admitted to his
participation in the robbery. The defendant informed the police that he and Kirby arrived in a Jeep
Cherokee and that he grabbed the victim’s purse after Kirby ordered her to “[d]rop” it. The defendant
stated Kirby used the credit cards found inside the purse to purchase merchandise from Goldsmith’s
from which the defendant received a pair of jeans and a shirt. T he defendant’s identity as a perpetrator
of the robbery was amply established by the evidence.


                                                   -6-
       We further reject the defendant’s contention that the state failed to establish that the victim
was in fear. The victim’s testimony established she was seventy-eight-years old, was knocked to
the ground, and was “screaming.” The evidence was sufficient to support the verdict.

                             III. LESSER-INCLUDED OFFENSES

        The defendant made an oral and written request that facilitation be charged as a lesser-
included offense, and the trial court denied his request. On appeal, the defendant contends the trial
court erred in failing to instruct the jury on facilitation as a lesser-included offense of robbery and
forgery. We disagree.

       In applying the lesser-included offense doctrine, three questions must be addressed: “‘(1)
whether an offense is a lesser-included offense; (2) whether the evidence supports a lesser-included
offense instruction; and (3) whether an instructional error is harmless.’” State v. Richmond, 90
S.W.3d 648, 659 (Tenn. 2002) (quoting State v. Allen, 69 S.W.3d 181, 187 (Tenn. 2002)). The
standard for an appellate court’s review of the trial court’s charge to the jury regarding lesser-
included offenses is de novo with no presumption of correctness. State v. Moore, 77 S.W.3d 132,
134 (Tenn. 2002).

        Facilitation of robbery and facilitation of forgery are lesser-included offenses of robbery and
forgery, respectively. See State v. Burns, 6 S.W.3d 453, 467 (Tenn. 1999). If an offense is found
to be a lesser-included offense, the court must next ascertain whether the evidence justifies a jury
instruction on the lesser-included offense. State v. Bowles, 52 S.W.3d 69, 75 (Tenn. 2001). To do
so, the court must first determine whether there is evidence that “reasonable minds” could accept
to establish the lesser-included offense. Burns, 6 S.W.3d at 469. The court must view the evidence
liberally in a light most favorable to the existence of the lesser-included offense without judging its
credibility. State v. Ely, 48 S.W.3d 710, 722 (Tenn. 2001); Burns, 6 S.W.3d at 469. Finally, the
court must determine if the evidence is “legally sufficient” to support a conviction for the lesser-
included offense. Burns, 6 S.W.3d at 469.

        The evidence, not the theories of the parties, determines whether an instruction on a lesser-
included offense should be given. Allen, 69 S.W.3d at 188. Furthermore, the decision to convict
on a lesser-included offense should not be taken from the jury simply because the element
distinguishing the greater offense from the lesser offense is “uncontroverted.” Id. at 189. If the
evidence justifies an instruction, the failure to charge the offense is error even though the evidence
was also sufficient to support the greater offense. Burns, 6 S.W.3d at 472.

       Harmless error relating to the failure to charge lesser-included offenses must be shown
“beyond a reasonable doubt.” Ely, 48 S.W.3d at 727. The proper inquiry is “whether it appears
beyond a reasonable doubt that the error did not affect the outcome of the trial.” Allen, 69 S.W.3d
at 191. In making the harmless error determination, this court must “conduct a thorough
examination of the record, including the evidence presented at trial, the defendant’s theory of
defense, and the verdict returned by the jury.” Id.



                                                 -7-
               In sum, when a reviewing court determines whether a lesser-included offense
       ought to be charged, the evidence clearly controls. If there is evidence sufficient to
       support a conviction for a lesser-included offense, we hold that a trial court must
       charge that offense. The determinative test being whether there is evidence sufficient
       such that a jury could convict on that lesser-included offense. If a jury could convict,
       no matter how improbable, it is error not to charge that lesser-included offense.
       However, in deciding whether it was harmless beyond a reasonable doubt not to
       charge a lesser-included offense, the reviewing court must determine whether a
       reasonable jury would have convicted the defendant of the lesser-included offense
       instead of the charged offense. In other words, the reviewing court must determine
       whether it appears beyond a reasonable doubt that the trial court’s failure to instruct
       on the lesser-included offense did not affect the outcome of the trial. Allen, 69
       S.W.3d at 191.

Richmond, 90 S.W.3d at 662 (emphasis in original).

A. Robbery

        Our supreme court has determined that facilitation is a lesser-included offense when a defendant
is charged with criminal responsibility for the conduct of another. Burns, 6 S.W.3d at 470. Thus,
we must next determine whether any evidence exists that reasonable minds could accept as to the
application of a lesser-included offense and whether the evidence, if viewed in this light, is legally
sufficient to support a conviction for the lesser-included offense. Id. at 467-69. In order for
reasonable minds to find the defendant guilty of facilitation of robbery, the jury would be required
to conclude in this case that the defendant, although not acting with the intent to promote robbery
nor benefit in the proceeds, furnished substantial assistance to the principal actor “knowing that [the
principal] inten[ded] to commit [robbery].” See Tenn. Code Ann. § 39-11-403(a).

         In Allen, our supreme court held that the trial court erred in failing to charge the jury with
facilitation of robbery as a lesser-included offense of aggravated robbery. 69 S.W.3d at 188-89.
The court noted that instructions on both criminal responsibility and facilitation may be supported
by the same evidence. Id. at 188-89 n.2. Furthermore, the court concluded reasonable minds could
accept the offense of facilitation of robbery and that the evidence was legally sufficient to support
a conviction for facilitation of robbery. Id. at 189. In reaching its conclusion, the court noted that
the defendant stood silently in the doorway as his accomplice committed the robbery; he did not
display a weapon and did not take any property from the victim; and no evidence was presented
establishing that the defendant received any proceeds from the robbery. Id. at 188.

        However, unlike Allen, the evidence in the case at bar, when viewed in a light most favorable
to the existence of the lesser-included offense, established that the defendant directly participated
in the commission of the robbery. The defendant admitted to the police that he was the passenger
inside the vehicle where he and Kirby discussed the robbery prior to its commission. According to
the defendant’s statement, he picked up the purse after Kirby ordered the victim to “[d]rop” it.
Although the defendant denied using the credit cards, he informed the police that Kirby used the
credit cards found inside the purse to purchase merchandise from Goldsmith’s from which he

                                                  -8-
received a pair of jeans and a shirt. Based upon this evidence, no reasonable juror could conclude
that the defendant did not intend to promote the robbery or benefit in the proceeds. We further
conclude that even if the trial court erred in failing to charge facilitation of robbery as a lesser-
included offense, it was harmless beyond a reasonable doubt. See Richmond, 90 S.W.3d at 662.

B. Forgery

        The defendant was convicted of three counts of forgery based upon criminal responsibility.
A person commits forgery who “forges a writing with intent to defraud or harm another.” Tenn.
Code Ann. § 39-14-114(a). “Forge,” as applicable to the case at bar, means to “[a]lter, make,
complete, execute or authenticate any writing so that it purports to . . . [b]e the act of another who
did not authorize the act.” Id. at (b)(1)(A)(i). Under the Burns test, facilitation is a lesser-included
offense of forgery based upon a theory of criminal responsibility. See Burns, 6 S.W.3d at 470.

         When viewed in a light most favorable to the existence of the lesser-included offense, the
evidence presented at trial unquestionably establishes that the defendant intended to promote the
forgery offenses and benefit in the proceeds. According to the undisputed proof, the defendant and
Kirby went to Goldsmith’s with the stolen credit cards on the same day in which the victim was
robbed. Emanueal Thomas observed both men choose various items without first looking at the
prices and place the items on the counter. The defendant told the police that although he did not
personally use the credit cards, he received a pair of jeans and a shirt as a result of the purchases.
A reasonable juror could only conclude that the defendant intended to benefit from the forgeries.
Furthermore, if the trial court did err in refusing to charge facilitation, it was harmless beyond a
reasonable doubt. See Richmond, 90 S.W.3d at 662. The defendant is not entitled to relief on the
failure to charge facilitation as a lesser-included offense.

       Accordingly, we affirm the judgments of the trial court.



                                                        ____________________________________
                                                        JOE G. RILEY, JUDGE




                                                  -9-
