         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                       June 5, 2007 Session

                    STATE OF TENNESSEE v. RONNIE HENRY

                  Direct Appeal from the Criminal Court for Shelby County
                           No. 03-08309    W. Fred Axley, Judge



                   No. W2006-00344-CCA-R3-CD - Filed February 19, 2008


The defendant, Ronnie Henry, was convicted of four counts of aggravated robbery, a Class B felony,
and four counts of robbery, a Class C felony. The defendant received an effective sentence of
seventy years. On appeal, the defendant presents three issues: (1) the sufficiency of the evidence to
sustain the convictions; (2) error in the limitation of the testimony of a defense witness; and (3) error
in sentencing. After review, we affirm the convictions but remand the case for resentencing in
compliance with the standards contained in this opinion.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ALAN E. GLENN and J.C.
MCLIN , JJ., joined.

Robert C. Brooks (on appeal) and Jesse Walker Dalton, III (at trial), Memphis, Tennessee, for the
appellant, Ronnie Henry.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Paul Hagerman and Ray Lepone, Assistant
District Attorneys General, for the appellee, State of Tennessee.

                                              OPINION

         This case involves the participation of the defendant in a robbery involving multiple victims
at an Enterprise Rental Car Agency in Memphis on July 16, 2002. Mario Colbert testified that he
and a friend, Torrie Lyles, were at the Enterprise location exchanging a rental car. The two men saw
Russell Jones, the branch manager, counting money in his office. Lyles told Colbert he was going
to call the defendant and did so. Approximately fifteen minutes later, the defendant and Vincent
Williams came to the Enterprise location. Williams wore a stocking mask, but the defendant’s face
was not covered. The defendant and Williams ordered the people inside the building to get on the
ground. Williams was holding a pistol. Colbert and Lyles placed themselves on the floor and
pretended to be victims of the robbery. Colbert stated that Russell Jones was robbed, but he did not
watch other individuals being victimized. Colbert and Lyles stayed on the scene after the police
arrived and continued the ruse of being victims. Later, Colbert met with Lyles, Williams, and the
defendant at the home of Lyles’ brother, where the defendant distributed the robbery proceeds.
Colbert said he received “seven hundred and something” but did not know how much was taken or
how it was divided.

       On cross-examination, Colbert stated that the defendant and Williams were the only
individuals who conducted the robbery. The only weapon he observed was in Williams’ possession.

        Russell Jones testified that he was the branch manager of the subject Enterprise location in
July 2002. Jones knew Colbert as a regular rental car customer and said Lyles would accompany
him. Jones was counting the store’s cash proceeds when he heard a disturbance in the lobby. The
defendant entered the office and forced Jones to the floor. The defendant then took the box of cash,
Jones’ wallet, briefcase, and cardholder. The defendant attempted to remove a ring but Jones
successfully resisted. Jones heard a small girl scream and the girl’s mother pleading not to shoot.
He stated that he saw two men with guns. Approximately six months later, Jones attempted to
identify the masked robber from a photo lineup. No identification was made at that time. Later, he
identified the defendant from a photo lineup as the individual who had robbed him. Jones also
identified the defendant at the preliminary hearing and at trial. Jones did not see the defendant with
a weapon during the robberies.

        Naziroddin Kazi was visiting at the Enterprise agency when the robbery occurred. He saw
two men running toward the store. They entered the business and ordered those inside to get down.
Kazi saw a revolver but did not get a good view of either man. Kazi was placed on the floor with
a gun to his head. He was frisked, and his car keys, wallet, and approximately $400 were taken from
him.

        Brian Denton, the Enterprise assistant manager, was working behind the rental counter when
the robbery began. He was commanded to get down by a masked man who was pointing a gun at
him. He did not see any others involved in the robbery but could hear other voices making demands.
He was asked where the money was kept, and he pointed toward Jones’ office. The items taken from
Denton were his car keys, a cigarette lighter, and twenty to thirty dollars. He stated that he could
hear other victims screaming and pleading.

        Frank Scott was an intern at the agency at the time of the robbery. He stated that he had just
walked into the building when he was told to “hit the ground.” One of the robbers placed a gun to
his head and walked him to the office. Scott saw the defendant take the money from the office.
Approximately $3000 was taken from the cash box. Scott was robbed of his cell phone and his
wallet which contained approximately thirty dollars. In February 2003, he identified the defendant
from a photo lineup as a participant in the robbery. He also identified him in General Sessions Court
and at trial.



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         Officer Gary Badgett of the Memphis Police Department was an early responder to a radio
alert of a robbery in progress. He testified that he spoke with Lyles and Colbert at the scene. He said
both men seemed to be smiling and without any anger or nervousness from the event.

       Vincent Williams was the only defense witness. He testified that he was in the Shelby
County Jail in February 2004 when a guard brought Mario Colbert to his cell. After Colbert
introduced himself, Williams asked him “why did he tell a lie on me.” Colbert responded that his
“beef” was with the defendant and not with Williams.

                                             Sufficiency

         When reviewing the sufficiency of the evidence, the relevant question of the reviewing 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 offense charged beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); State v. Reid, 91
S.W.3d 247, 276 (Tenn. 2002); Tenn. R. App. P. 13(e). Because a verdict of guilt removes the
presumption of innocence and imposes a presumption of guilt, the burden shifts to the defendant
upon conviction to demonstrate why the evidence is sufficient to support the verdict. See State v.
Evans, 108 S.W.3d 231, 237 (Tenn. 2003). On appeal, the State is entitled to the strongest legitimate
inferences that may be drawn therefrom. State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000).

        A verdict of guilt by the trier of fact resolves all conflicts in the evidence in favor of the
prosecution’s theory. See State v. Bland, 958 S.W.2d 641, 659 (Tenn. 1997). “Questions about the
credibility of witnesses, the weight and value of the evidence, as well as all factual issues raised by
the evidence are resolved by the trier of fact, and this Court does not re-weigh or re-evaluate the
evidence.” Evans, 108 S.W.3d at 236 (citing Bland, 958 S.W.2d at 659). Nor may this court
substitute its own inferences drawn from circumstantial evidence for those drawn by the trier of fact.
Evans, 108 S.W.3d at 236-37.

         The focus of the defendant’s challenge as to sufficiency of the convicting evidence is a
general attack on the reliability of eyewitness identification. Two victims, Russell Jones and Frank
Scott, made positive identifications of the defendant as one of the men who carried out the robbery.
Both victims identified the defendant first from a photo lineup, then in General Sessions Court and
at trial. Jones’ and Scott’s unequivocal identifications of the defendant were consistent with the
testimony of Mario Colbert, an accomplice.

       The fallibility of human perception, in all sensory realms, has been recognized by scientists
and our courts.

       [A]ccuracy of eyewitness testimony is affectable by the usual universal fallibilities
       of human sense perception and memory. This phenomenon, which could obviously
       affect other forms of evidence also, is potentialized by the fact that this testimony is



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        prone to many outside influences (police interrogations, lineups, etc.) and is often
        decisive. See Loftus, Eyewitness Identification 7 (1979).
State v. Dyle, 899 S.W.2d 607, 612 (Tenn. 1995).

        In order to safeguard against undue reliance on questionable identification, our supreme court
in Dyle formulated a jury instruction to be given when identification is a material issue. Id. The
factors for consideration of the eyewitness testimony include: the witness’s capacity and opportunity
to observe the offender; the degree of certainty expressed by the witness; the occasions on which the
witness failed to make an identification; and the occasions on which the witness made consistent
identifications.

         The State alleges in its brief that the Dyle instruction was given in this case. The defendant’s
brief is silent in this regard. The record does not contain the jury instructions. It is the duty of the
appellant to provide a record which conveys a fair, accurate, and complete account of what transpired
with regard to issues which form the basis of the appeal. Tenn. R. App. P. 24(b); see State v. Taylor,
999 S.W.2d 941, 944 (Tenn. 1999). If jury instructions are omitted from the appellate record, it is
presumed that the trial court correctly instructed the jury. Tillery v. State, 565 S.W.2d 509, 511
(Tenn. Crim. App. 1978).

        There were obvious inconsistences in some witnesses’ testimony as to the number of
weapons used in the robbery. Such is understandable in the confusion attendant to such a sudden
and unexpected event. However, it is the jury’s responsibility to determine the value and credibility
of the evidence. The inconsistencies do not negate the eyewitness identification of the defendant by
the victims, Jones and Scott, who were corroborated by accomplice, Colbert. In light of the
foregoing, we conclude that the evidence, including the identification evidence, was sufficient to
support the verdict of guilty beyond a reasonable doubt.

                                  Limitation of Cross-Examination

       The defendant next asserts error by the trial court’s limitation of the defendant’s examination
of Brian Denton regarding a suppressed identification made by Denton.

         Although it was not included in the appellate record, it can be gleaned that there was a
pretrial suppression ordered of Brian Denton’s identification of Vincent Williams, the masked co-
defendant. Williams was not tried with this defendant. The suppression was apparently based on
Denton’s statement that his identification of Williams from a photo lineup was ninety percent
certain. Williams was wearing a mask during the robbery. The State made an in limine motion that
the defendant be barred from questioning Denton concerning the suppressed identification, which
was granted. The defendant argues that the trial court’s ruling deprived him of attacking the
credibility of Denton’s entire testimony and violated his due process rights.




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        Denton’s testimony was essentially non-incriminatory as to the defendant. He did not see
the defendant and merely related a limited experience during the robbery. Denton’s only encounter
was with the masked robber, Williams, and not with the defendant.

        In reviewing a trial court’s decision concerning the admission of evidence, we will do so
using an “abuse of discretion” standard. See State v. Dubose, 953 S.W.2d 649, 652-53 (Tenn. 1997).
This is measured by whether a “court applied an incorrect legal standard or reached a decision which
is against logic or reasoning that caused an injustice to the party complaining.” State v. Shirley, 6
S.W.3d 243, 247 (Tenn. 1999) (citing State v. Shuck, 957 S.W.2d 662, 669 (Tenn. 1997)).

        Denton’s testimony served only to corroborate that a robbery occurred. It served little
purpose toward implicating the defendant. If error at all, it was harmless error to exclude the
equivocal identification of a co-defendant. If the entirety of Denton’s testimony was excluded, the
evidence remaining would be overwhelmingly sufficient to convict the defendant. We conclude that
this issue affords no relief for the defendant.

                                              Sentencing

       The defendant challenges his sentence in his last issue. The defendant takes issue with the
sentence on the basis of an alleged misapplication of enhancement factors and in imposing
consecutive sentences. We remand the sentencing on other grounds.

       The trial court applied the following enhancement factors:
       (1)     the defendant has a previous history of criminal convictions or criminal
               behavior in addition to those necessary to establish the appropriate range;
       (2)     the defendant was a leader in the commission of an offense involving two or
               more criminal actors;
       (3)     the defendant has a previous history of unwillingness to comply with the
               conditions of a sentence involving release in the community;
       (4)     the defendant had no hesitation about committing a crime when the risk to
               human life was high; and
       (5)     the crime was committed under circumstances under which the potential for
               bodily injury to a victim was great.

       The trial court then imposed sentences of twenty years for each aggravated robbery as a
multiple offender and fifteen years for each robbery as a persistent offender, for an effective sentence
of seventy years. There is no indication in the trial court’s ruling on sentencing that it gave any
consideration to the proposed mitigating factors.

         We are now aware, since the issuance of State v. Gomez II, S.W.3d (Tenn. 2007), that
it is plain error to apply judicially determined enhancement factors other than factor (1), that of
previous history of criminal convictions or criminal behavior, to enhance a defendant’s sentence.
This defendant had an extensive record of past convictions which he does not contest. The trial


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court’s ruling in sentencing is silent as to the weight attached to the various enhancement factors
applied. This impedes appellate review and makes it necessary to remand for resentencing in
compliance with Gomez II and our standard principles of sentencing.

         The defendant has also challenged the imposition of consecutive sentences. On resentencing,
the trial court is not barred by Sixth Amendment principles in considering consecutive sentences.
         The manner of service of the sentence imposed when a trial court decides whether
         to impose consecutive sentences - a decision it may make only after the jury has
         found the defendant guilty of multiple offenses beyond a reasonable doubt - does not
         usurp the jury’s factfinding powers or offend the defendant’s due process rights.
State v. Joseph Wayne Higgins, No. E2006-01552-CCA-R3-CD, 2007 Tenn. Crim. App. LEXIS 763
at *43 (Tenn. Crim. App. at Knoxville, Sept. 27, 2007).

       Therefore, if considering consecutive sentences, the trial court should adhere to the criteria
contained in Tennessee Code Annotated section 40-35-115 and, if applicable, the additional findings
required by State v. Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995).

                                            Conclusion

       The convictions are affirmed. The cause is remanded for resentencing in light of the
guidelines contained herein.




                                                      ___________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE




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