        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs February 14, 2012

               STATE OF TENNESSEE v. TOMARIO WALTON
                                     a.k.a. QUADRICUS DEAN

                  Appeal from the Criminal Court for Shelby County
                        No. 09-07601   Paula Skahan, Judge


                 No. W2011-01082-CCA-R3-CD - Filed August 6, 2012


A Shelby County jury convicted the Defendant-Appellant, Tomario Walton a.k.a. Quadricus
Dean, of aggravated robbery, a Class B felony. He was sentenced as a Range I, standard
offender to a nine-year term of imprisonment in the Tennessee Department of Correction.
On appeal, Walton presents the following issues for our review: (1) whether the trial court
erred in denying his motion to suppress the victim’s showup identification of him as the
perpetrator of the offense, and (2) whether the evidence at trial, specifically that of Walton’s
identity, was sufficient to support the jury’s verdict. Upon review, we affirm the judgment
of the trial court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which JOSEPH M. T IPTON,
P.J., and J OHN E VERETT W ILLIAMS, J., joined.

James M. Gulley, Memphis, Tennessee, for the Defendant-Appellant, Tomario Walton.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Amy P. Weirich, District Attorney General; Glen C. Baity and Bryan Davis,
Assistant District Attorneys General, for the Appellee, State of Tennessee.

                                          OPINION

         The facts of this case stem from the armed robbery of Sheila Ray, the victim, by
Walton and his co-defendant, Jasper Clayton. Within an hour of the offense, Walton and
Clayton were apprehended within two miles of the offense location. The victim was taken
to that location, asked if the perpetrators were present, and identified Walton as the gunman.
Prior to trial, Walton filed a motion to suppress the showup identification, as a violation of
his due process rights.

        At the motion to suppress hearing, held on July 2 and July 15, 2010, the victim
testified that she was robbed at her apartment complex on August 18, 2009. At
approximately 5:15 p.m., she drove into her parking lot, exited her car, and observed two
African American men. As she attempted to walk past the men, one of them “walked up to
[her] and held a gun on [her].” Asked whether the individual who held the gun on her was
present in court, she replied, “I can’t be sure so I’d say no.” The victim continued and
explained that the perpetrator was “within the distance of me and the Judge,” that he held the
gun to her face, and that the robbery lasted about thirty seconds to a minute. She recalled that
the man with the gun was wearing a white T-shirt and jeans, while the other man was not
wearing a shirt. After demanding the victim’s bags, the gunman “just took them” and both
men “took off running.”

        The victim drove to the apartment complex office, where the office manager called
the police. The office manager had seen the two men “take off” and obtained the license
plate number. Within ten minutes, the police arrived at the apartment complex and spoke
with the victim. Thirty to forty-five minutes later, the victim followed the police to the
location where they had stopped two men driving a car matching the license plate number
given by the office manager, approximately one and one-half to two miles away from the
scene of the robbery. Once at the location, the police requested the victim to exit her car and
“look around” to determine if the perpetrators were present. The victim explained that, at
that time, she observed two men standing outside the police car along with several other
police officers. She could not tell whether the two men were handcuffed. The victim was
talking to one police officer but was not given any suggestions as to whom she should “pick
out” as the perpetrators. Although not asked directly whether she identified the two men
standing outside the police car as the perpetrators of the offense at the hearing, the victim
testified that, while on the scene, she was certain that the two men were the individuals who
robbed her because it was “fresh” in her mind at that time.

        On cross-examination, the victim agreed that, prior to arriving at the location where
the two men were apprehended, she was told by the police that “they actually stopped two
black males in the vehicle . . . matching that description with that license plate.” She further
agreed that the two men were the only men in “regular clothing on the scene.” The victim
also testified that she was unable to identify anyone as the perpetrator of the instant offense
at the preliminary hearing.

       Corey Hentz, an officer with the Memphis Police Department, responded to the instant
offense. He spoke with the victim, who provided him with a description of the suspects and

                                              -2-
a description of the vehicle with the tag number. The victim told Officer Hentz that two
individuals were involved with the robbery. She described the armed suspect as a “male
black with a white T-shirt on . . . dark colored jeans.” She also said that the suspects were
driving a black pickup truck. This information was relayed to other officers in the area.
Officer Hentz explained that the other officers stopped the suspect truck at a second location,
Mingle and Berrybrook. Within thirty minutes of speaking to the victim, Officer Hentz went
to the second location and requested the victim to follow him.

       Officer Hentz testified that the victim identified Walton at the second location as the
perpetrator of the offense. He explained the process by which the victim identified Walton.
Officer Hentz said that both suspects were in two separate police cars. They brought the
victim over and “stood each suspect up one at a time and she identified the one who robbed
her with a pistol and took her belongings.” The victim was approximately 100 feet from the
suspects when she identified Walton. Officer Hentz testified that he did not do anything to
suggest to the victim that she should pick either of the suspects. He also did not observe any
other officer suggest anything to her.

        Dennis Williams, Jr., a Memphis Police officer, said he saw a truck that matched the
description given by a person who was “just robbed” westbound on Shelby Drive toward
Hickory Hill. He verified the tag number, advised other police officers of his location, and
called for assistance. Upon arrival of other police assistance, he signaled for the suspect
truck to stop at Mingle and Berrybrook. The suspect truck complied “within a quarter of a
mile.” Over his speaker system, he ordered the two occupants of the truck to turn the truck
off and exit with their hands in the air. The occupants complied. Officer Williams observed
that the passenger, later identified as Walton, matched the description previously provided
to him by the dispatcher. Another officer placed the suspects in handcuffs, and they were
patted down and placed in separate squad cars.

       Officer Williams approached the truck, looked inside, noticed “a lot of papers and IDs
thrown around the inside the cab of the vehicle.” He found the victim’s driver’s license on
the floorboard and credit cards, purse and cell phone strewn about the cab of the truck. He
then notified dispatch. Although he saw the victim on the scene, he had no communication
with her. He recalled that the driver had identification with him, but Walton did not.
Officer Williams recorded the information in his report and called for his supervisor.

        By written order, the trial court denied the motion to suppress. The court concluded
that the showup identification procedure was not unnecessarily suggestive and that the
identification was reliable under the totality of the circumstances.




                                              -3-
       Trial. At trial, the victim testified consistently with her testimony at the motion to
suppress hearing. Additionally, the victim testified that as she walked toward the two men,
the shorter of the two men stepped off the sidewalk and toward her. Holding a pistol at his
side, he said, “[G]ive me your things.” The victim asked, “[A]re you serious?” The man
replied, “Yeah, I’m serious,” and pointed the gun, which the victim described as “small,”
“silver,” and “not a revolver,” at her. The victim began to give the man her things, but he
took them from her before she had a chance. He then took her phone out of her pocket
despite the victim’s plea to leave it. The man told her not to “make a sound [or] move,” and
both men fled into the breezeway and down stairs leading to basement apartments and
another parking lot.

        The victim returned to her car and drove to the apartment complex leasing office. At
the office, Madonna Fulgham, the property manager for the apartment complex, allowed the
victim to use a telephone to call 911. Ms. Fulgham also spoke with the 911 dispatcher and
provided a license plate number of a vehicle she saw.1 A police officer arrived at the
apartments approximately ten minutes later and interviewed the victim. The victim waited
for a friend to arrive to give her a ride and then followed the police officer. Although she
thought they were going downtown so she could provide a statement, they instead went to
another location where she identified the men who robbed her. The officers had the victim
get out of her car and asked her whether she saw the men. They showed the men to her
separately, and she was able to distinguish between the man who had a gun and the man who
was talking on a cell phone. The victim testified that this identification occurred between
thirty minutes and an hour after the robbery. She was able to identify the gunman because
her memory of him was still fresh. She was certain of her identification at the time, and she
based it on his clothing, jeans and a white t-shirt.

       The victim viewed photographs, admitted as exhibits at trial, that depicted the interior
of the pickup truck in which Walton was apprehended. She identified several items in the
truck, which were taken from her during the robbery. Those items included her driver’s
license, debit card, purse, tote bag, and lunch bag. She recovered everything that the robber
took from her except the cash she had in her purse.

       On cross-examination, the victim testified that she got a good look at the gunman.
She testified that there was nothing unusual or distinct about his appearance, and he had
“[n]o mohawk, no long hair, no earrings that [she] could tell.” The other man was “clearly


        1
          A recording of the 911 call was played for the jury and admitted as an exhibit at trial. Although it
was included in the record on appeal, the recording is of such poor quality that it is largely unintelligible.
The victim can be heard describing what happened and the appearance of the robbers, but we cannot discern
the details of those descriptions.

                                                     -4-
taller” than the gunman. She testified that although she first thought that the taller man was
wearing a black t-shirt, he actually was shirtless. Before the police requested that she
identify the men, they told her that “they had pulled over two suspects and that what they
thought were [her] things were there.” The victim testified that she was unable to identify
Walton as the gunman at a preliminary hearing held approximately forty-five days after the
robbery. She also could not identify him at trial, approximately one year and five months
after the robbery. She testified, “I saw the gun more, I mean, I was looking at the gun, you
know, a lot . . . .”

        The victim also identified a gun similar in shape and size to the one that was used in
the robbery. She further identified and confirmed that her purse, a bag that she carried to and
from work, her cell phone and blue tooth were taken during the robbery. She described her
emotional state during the robbery as “shocked” and “scared.” As the 911 tape was played
for the jury, the victim identified her voice and the voice of the office manager. She
identified exhibits of the apartment parking lot layout, which facilitated her description of
where she was when the offense occurred.

       Madonna Fulgham, the property manager for the apartments where the robbery
occurred, testified that on the day of the offense she received a call about two suspicious
people loitering around an apartment building. She called security and requested that they
respond. Later that same day, Ms. Fulgham showed a model home to prospective renters.
As she was leaving that home, two men whom she did not recognize, jogged past her, almost
running into her. The men were black and appeared “to be in their late teens, early twenties.”
Ms. Fulgham followed the men to the parking lot, where she saw them get into a pickup truck
that had been backed into a parking space. She noted the license plate number and walked
to her office. As she reached the office, the victim arrived in her car and said that she had
just been robbed at gunpoint. They went inside the office and called 911. Ms. Fulgham
informed the dispatcher of the pickup truck’s license plate number.

      On cross-examination, Ms. Fulgham testified that there was nothing unusual about the
men’s appearance. She was suspicious of them based on their “mannerism[s] and the pace
of coming through that particular corridor at that particular time of the day.”

        Jasper Clayton testified that he was with Walton when the instant offense occurred
and identified Walton, at trial, as the person with him. Clayton said Walton’s nickname was
“Quadricus,” and that they “used to hang out back in the day.” He gave Walton a ride earlier
in the day on the date of the offense, not realizing where they were going or that a robbery
was about to occur. Clayton was driving his father’s truck, a black Toyota Tacoma. They
drove to an apartment complex and saw a white female. Walton was armed with a chrome
pistol. Clayton said Walton approached the female, but Clayton could not recall Walton’s

                                              -5-
exact words to her. Clayton said, however, that Walton pointed a gun at the female and
demanded her property. Clayton said Walton grabbed her bags and they “struck out
running.” Clayton said that Walton had a mohawk haircut on the day of the offense, but was
wearing a do-rag.

       Clayton confirmed that he was stopped by the police soon after the offense and that
Walton was the passenger in his truck. He further confirmed that the weapon used in the
robbery was recovered from his father’s truck. For his involvement with this case, Clayton
was charged with and pled guilty to facilitating an aggravated robbery, a Class C felony. The
specifics of his sentence were not detailed; however, he received “diversion” for this offense.
 He did not receive a reduced charge or any promises or deals in exchange for his truthful
testimony at trial.

        Officer Dennis Williams of the Memphis Police Department testified consistently with
his testimony at the motion to suppress hearing. Additionally, Officer Williams said he
stopped the suspect truck at the second location at 6 p.m., between two and one-half and
three and one-half miles from the scene of the robbery. Officer Williams testified that, upon
his initial interaction with Walton, Walton was “very uncooperative” and provided several
different names. The officers searched the truck and found “the victim’s . . . wallet, purse
and just items thrown all over the truck[,] [a]nd just various credit cards and just a lot of
personal items that wasn’t [sic] the driver’s or the passenger’s items.” The officers located
a pistol under the driver’s seat of the truck, which was admitted as an exhibit at trial along
with photographs of the pistol in the truck. Officer Williams testified that when the victim
was at the second location, she identified Walton as the gunman who robbed her.

        Officer Corey Hentz of the Memphis Police Department testified consistently with his
testimony at the motion to suppress hearing. Additionally, he testified that the victim
identified Walton as the man who robbed her at gunpoint and that she was “fairly certain”
at the time that she had correctly identified the gunman.

       Shirley Tipler, an employee of the jail property room, identified a white shirt and jeans
as property belonging to Walton at the time he was booked at the jail. The clothes were
admitted as an exhibit at trial.

       The jury convicted Walton of aggravated robbery. This timely appeal followed.

                                         ANALYSIS

       I. Victim’s Identification of Defendant. On appeal, Walton contends that the trial
court erred in admitting the victim’s showup identification of him. He asserts that showups

                                              -6-
in general are inherently suggestive and that the specific showup in this case was especially
suggestive because Walton was pulled out of a police car when the victim viewed him and
because the police told the victim that Walton was stopped in a truck that contained her
stolen belongings. Walton argues that the showup was unnecessary because the police could
have easily arranged for a station house lineup. He further argues that under the totality of
the circumstances, the identification was unreliable because (1) the victim was paying
attention to the gun rather than the robber’s identity, (2) the victim’s description of the robber
did not match Walton, (3) the victim was one hundred feet from Walton when she viewed
and identified him, and (4) the victim could not identify Walton at later court proceedings.
The State, in response, concedes that the showup was suggestive but contends that it was not
unnecessarily suggestive. It additionally argues that the circumstances of the identification
demonstrate its reliability and that the trial court did not err in admitting the identification at
trial. We agree with the State that the trial court properly admitted the identification
testimony at trial.

       On review, an appellate court may consider the evidence presented at the suppression
hearing as well as at trial in determining whether the trial court properly denied a pretrial
motion to suppress. State v. Henning, 975 S.W.2d 290, 297-99 (Tenn. 1998). In conducting
our review, it is a settled principle that “[f]indings of fact made by the trial judge after an
evidentiary hearing of a motion to suppress are afforded the weight of a jury verdict, and this
court will not set aside the trial court’s judgment unless the evidence contained in the record
preponderates against his findings.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996)
(quoting State v. Adams, 859 S.W.2d 359, 362 (Tenn. Crim. App. 1992)). In addition, the
Tennessee Supreme Court has stated:

       Questions of credibility of the witnesses, the weight and value of the evidence,
       and resolution of conflicts in the evidence are matters entrusted to the trial
       judge as the trier of fact. The party prevailing in the trial court is entitled to
       the strongest legitimate view of the evidence adduced at the suppression
       hearing as well as all reasonable and legitimate inferences that may be drawn
       from that evidence. So long as the greater weight of the evidence supports the
       trial court’s findings, those findings shall be upheld. In other words, a trial
       court’s findings of fact in a suppression hearing will be upheld unless the
       evidence preponderates otherwise.

Id. at 23. A trial court’s conclusions of law, however, are reviewed de novo. State v. Carter,
160 S.W.3d 526, 531 (Tenn. 2005) (citing State v. Daniel, 12 S.W.3d 420, 423 (Tenn.
2000)).




                                                -7-
        An out-of-court identification violates a defendant’s due process rights when it is
“unnecessarily suggestive”2 and raises “‘a very substantial likelihood of . . .
misidentification.’”3 Neil v. Biggers, 409 U.S. 188, 198 (1972) (quoting Simmons v. United
States, 390 U.S. 377, 384 (1968)). The United States Supreme Court has explained, “It is the
likelihood of misidentification which violates a defendant’s right to due process . . . .
Suggestive confrontations are disapproved because they increase the likelihood of
misidentification, and unnecessarily suggestive ones are condemned for the further reason
that the increased chance of misidentification is gratuitous.” Id. A trial court therefore must
determine the validity of a pretrial identification according to a two-part analysis. Id. at
198-200. First, the trial court must determine whether the identification procedure was
unnecessarily suggestive. Id. at 198. Next, if the trial court determines that the identification
procedure was unnecessarily suggestive, it must then consider whether, under the totality of
the circumstances, the identification procedure was nonetheless reliable and therefore
satisfied due process despite the suggestiveness. Id. at 199; State v. Scarborough, 300
S.W.3d 717, 730 (Tenn. Crim. App. 2009). Several factors are relevant in assessing the
reliability of the identification:

        [(1)] the opportunity of the witness to view the criminal at the time of the
        crime, [(2)] the witness’ degree of attention, [(3)] the accuracy of the witness’
        prior description of the criminal, [(4)] the level of certainty demonstrated by
        the witness at the confrontation, and [(5)] the length of time between the crime
        and the confrontation.

Biggers, 409 U.S. at 199-200.

       A showup, a “one-on-one confrontation” that “occurs when ‘a single person is
presented as a suspect to a viewing witness,’” is a particular type of out-of-court
identification procedure. State v. Thomas, 780 S.W.2d 379, 381 n.1 (Tenn. Crim. App.
1989) (quoting United States v. Sanders, 547 F.2d 1037, 1040 (8th Cir. 1976)). Courts
generally condemn the use of a showup because it is often suggestive and unfair to the


        2
          Tennessee courts have sometimes applied the standard of “unduly suggestive” rather than
“unnecessarily suggestive” although the latter is the language used in Biggers. See State v. Albert W.
Bentley, No. M2010-01882-CCA-R3-CD, 2011 WL 6916762, at *8 (Tenn. Crim. App., at Nashville, Dec.
29, 2011) (Tipton, P.J., concurring).
        3
          As Biggers explains, this standard for assessing in-court testimony regarding an out-of-court
identification is a modified version of the standard applicable to an in-court identification following a
suggestive out-of-court identification. 409 U.S. at 198. Such an in-court identification is assessed by
considering whether the identification procedure created “a very substantial likelihood of irreparable
misidentification.” Id. (citing Simmons, 390 U.S. at 384).

                                                  -8-
suspect. Id. at 381. Nevertheless, a showup is not unnecessarily suggestive when
“imperative circumstances necessitate” its use or it occurs “as an on-the-scene investigatory
procedure shortly after the commission of the crime.” Id. at 381. This court has explained
that a showup, when used as an investigatory procedure sufficiently proximate in both time
and place to the offense, often serves the interests of justice. State v. Moore, 596 S.W.2d
841, 844 (Tenn. Crim. App. 1980). It can “‘foster[] the desirable objectives of fresh,
accurate identification which in some instances may lead to the immediate release of an
innocent suspect and at the same time enable the police to resume the search for the fleeing
culprit while the trail is fresh.’” Id. (quoting Bates v. United States, 405 F.2d 1104, 1106
(D.C. Cir. 1968)). A showup identification, therefore, violates due process only when it is
unnecessarily suggestive and unreliable.

        Here, we conclude that the showup procedure was unnecessarily suggestive. Contrary
to Walton’s assertions on appeal, the showup procedure by itself was justified as an on-the-
scene investigatory procedure. The proof established that immediately after the report of the
robbery, the police began searching for the vehicle and the suspects matching the witnesses’
descriptions. Less than an hour later and within three and one-half miles of the robbery’s
occurrence, the police stopped a vehicle and two men that matched the descriptions. The
showup that followed was sufficiently close in time and place to the robbery to be considered
an on-the-scene investigatory procedure. Nor was the showup unnecessarily suggestive, as
Walton asserts, because he exited a police car for the victim to view him. This court has
found on numerous occasions that showups with the defendant in or near a police car are not
unnecessarily suggestive. See, e.g., State v. Corey Eshmon, No. W2008-00109-CCA-R3-
CD, 2009 WL 3029670, at *3, 10 (Tenn. Crim. App., at Jackson, Sept. 23, 2009) (declining
to hold a showup unnecessarily suggestive when the defendant was seated in the backseat of
a police car for the victim to view him); State v. Vidal L. Strickland, No. M2002-01714-
CCA-R3-CD, 2003 WL 22243440, at *13 (Tenn. Crim. App., at Nashville, Sept. 30, 2003)
(declining to hold a showup unnecessarily suggestive when the defendant was pulled out of
a police car and made to stand by it for the victims to view him), perm. app. denied (Tenn.
Oct 17, 2005). However, the police improperly and unnecessarily added to the showup’s
inherent suggestiveness by telling the victim that the subject of the showup was found with
her stolen property in a vehicle matching Ms. Fulgham’s description. Such a communication
to the victim before the showup led to a “[gratuitous] increased chance of misidentification.”
Biggers, 409 U.S. at 198. See State v. Cory Shane Rollins, No. E2008-01407-CCA-R3-CD,
2010 WL 342653, at *2, 4 (Tenn. Crim. App., at Knoxville, Feb. 1, 2010) (finding a showup
unduly suggestive in part because police gave the victim “periodic updates of the police
chase” of a vehicle matching witnesses’ descriptions and told her before the showup that
“‘this was possibly the suspect that had committed the robbery’”), perm. app. denied (Tenn.
June 17, 2010). As a result, the identification procedure was unnecessarily suggestive.



                                             -9-
         Having found the showup unnecessarily suggestive, we must consider whether the
totality of the circumstances under the Biggers factors indicates that the identification was
reliable despite the unnecessary suggestiveness of the showup. First, the victim had
substantial opportunity to view Walton at the time of the crime. She testified that the robbery
occurred in daylight and that she faced Walton at close quarters for the duration of the
robbery, between thirty and sixty seconds. See Scarborough, 300 S.W.3d at 729 (ruling that
the victim’s opportunity to view the defendant for fifteen to thirty seconds supported a
reliable identification). Additionally, she observed Walton as she drove into the apartment
parking lot before the robbery occurred. Second, the victim’s testimony indicates that she
was attentive during the robbery. Her ability to recall what the men were doing as she
approached them, their appearance, and the words she exchanged with Walton demonstrates
her heightened degree of attention at the time. Although the victim paid attention to the gun
Walton pointed at her, that fact alone does not suggest, as Walton argues, that she was not
also attentive to Walton’s identifiable features. Third, the victim provided an accurate
description of Walton before the showup. She described the appearance of the gunman and
his clothing, jeans and a white t-shirt, which matched Walton. Although she did not describe
Walton’s mohawk, Clayton testified that Walton wore a do-rag at the time of the robbery.
We recognize that the victim’s prior description was not excessively detailed, but on balance
it favors the reliability of the identification. Fourth, the victim testified that she quickly
identified Walton and that she based her identification on his face and his clothing, which
she recalled from the events of the robbery. She assessed her confidence in the identification
at the time as “sure” and “certain.” Fifth, the short length of time, thirty minutes to one hour,
between the crime and the identification further supports its reliability. See Wadley v. State,
634 S.W.2d 658, 662-63 (Tenn. Crim. App. 1982) (finding reliability when “only” seven
days passed between crime and identification).

        Aside from the Biggers factors, Walton asserts that other circumstances undermined
the reliability of the identification. He argues that the distance at which the victim viewed
Walton during the showup renders it unreliable. However, the witnesses testified that the
victim was between thirty and one hundred feet from Walton when she identified him as the
gunman. This distance was not excessive and was conducive to an accurate identification,
as evidenced by the victim’s ability to see Walton’s face and clothing well enough to quickly
and easily identify him. Walton additionally argues that the victim’s inability to identify him
at any court proceeding calls into question the reliability of the identification. The victim
explained, however, that she was able to identify Walton at the showup on the day of the
offense because her memory of the robber was fresh and that this was not the case at the later
court proceedings, suggesting that her memory faded with the passage of time. This
explanation is reasonable under the circumstances, and the victim’s inability to identify
Walton in court does not render the out-of-court identification unreliable. See State v. Biggs,
211 S.W.3d 744, 747, 751-52 (Tenn. Crim. App. 2006) (finding an officer’s photographic

                                              -10-
showup identification two months after the offense reliable under the totality of the
circumstances even though the officer could not identify the defendant at trial); State v. Jason
A. Laws, No. 03C01-9509-CC-00289, 1996 WL 168701, at *3 (Tenn. Crim. App., at
Knoxville, Apr. 11, 1996) (finding a victim’s photographic lineup identification one day after
the offense reliable under the totality of the circumstances even though the victim could not
identify the defendant at trial). We conclude, therefore, that under the totality of the
circumstances, even when viewed in light of the unnecessary suggestiveness of the showup
procedure, there is not “‘a very substantial likelihood of . . . misidentification.’” Biggers, 409
U.S. at 198 (quoting Simmons, 390 U.S. at 384). As the Supreme Court has said, “Short of
that point, such evidence is for the jury to weigh.” Manson v. Brathwaite, 432 U.S. 98, 116
(1977). Consequently, the trial court did not err in admitting this evidence at trial, and
Walton is not entitled to relief.

        II. Sufficiency of the Evidence. Walton argues that the evidence introduced at trial
is insufficient to support his conviction for aggravated robbery. Specifically, he asserts that
the State failed to prove Walton’s identity as the gunman. He relies on the suggestiveness
of the showup identification procedure, the victim’s testimony that the gunman had no
mohawk, and the fact that the police found the pistol under the driver’s seat of the pickup
truck where Clayton was sitting. The State responds, and we agree, that the evidence is
sufficient to support Walton’s conviction.

       The State, on appeal, is entitled to the strongest legitimate view of the evidence and
all reasonable inferences which may be drawn from the evidence. State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997). When a defendant challenges the sufficiency of the evidence,
this court must decide “whether, after reviewing 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). Similarly, Rule
13(e) of the Tennessee Rules of Appellate Procedure states, “Findings of guilt in criminal
actions whether by the trial court or jury shall be set aside if the evidence is insufficient to
support a finding by the trier of fact of guilt beyond a reasonable doubt.”

       A verdict of guilt removes the presumption of innocence and replaces it with a
presumption of guilt; therefore, a defendant on appeal has the burden of showing that the
evidence is insufficient to support the jury’s verdict. State v. Thacker, 164 S.W.3d 208, 221
(Tenn. 2005) (citing State v. Evans, 108 S.W.3d 231, 237 (Tenn. 2003); State v. Carruthers,
35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982)).
A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the State’s
witnesses and resolves all conflicts in the evidence in the State’s favor. Bland, 958 S.W.2d
at 659 (citing State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973)). Issues regarding the
credibility of witnesses, the weight and value of the evidence, and all factual issues raised

                                              -11-
by the evidence are resolved by the jury as the trier of fact, and this court does not reweigh
or reevaluate the evidence. Id. (citing State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)).
Guilt may be found beyond a reasonable doubt in a case where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Matthews, 805 S.W.2d 776,
779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977);
Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)).

        “The identity of the perpetrator is an essential element of any crime.” State v. Robert
Wayne Pryor, No. M2003-02981-CCA-R3-CD, 2005 WL 901140, at *3 (Tenn. Crim. App.,
at Nashville, Apr. 19, 2005) (citing State v. Thompson, 519 S.W.2d 789, 793 (Tenn. 1975)).
The State has the burden of proving “the identity of the defendant as the perpetrator beyond
a reasonable doubt.” Id. (citing State v. Sneed, 908 S.W.2d 408, 410 (Tenn. Crim. App.
1995)). The identity of the defendant as the perpetrator, just like guilt generally, may be
established by direct evidence, circumstantial evidence, or a combination of the two.
Thompson, 519 S.W.2d at 793. “The credible testimony of one identification witness is
sufficient to support a conviction if the witness viewed the accused under such circumstances
as would permit a positive identification to be made.” State v. Radley, 29 S.W.3d 532, 537
(Tenn. Crim. App. 1999) (citing State v. Strickland, 885 S.W.2d 85, 87-88 (Tenn. Crim. App.
1993)). This court has stated that the identification of the defendant as the perpetrator is a
question of fact for the jury after considering all the relevant proof. Strickland, 885 S.W.2d
at 87 (citing State v. Crawford, 635 S.W.2d 704, 705 (Tenn. Crim. App. 1982)). In addition,
this court has held that “the testimony of a victim, by itself, is sufficient to support a
conviction.” Id. (citing State v. Williams, 623 S.W.2d 118, 120 (Tenn. Crim. App. 1981)).

        To convict Walton of aggravated robbery, the State was required to prove that he used
a deadly weapon to commit an “intentional or knowing theft of property from the person of
another by violence or putting the person in fear.” T.C.A. §§ 39-13-401, -402 (2010). Here,
the evidence supports the jury’s verdict. The issue of identity was prominently contested
throughout trial. Walton extensively cross-examined the victim and Officers Williams and
Hentz regarding the identification procedure and the victim’s identification of Walton as the
perpetrator of the aggravated robbery. Although the victim did not identify Walton at trial,
she testified that she was confident in her identification of him at the showup. The parties
also elicited substantial testimony that the victim viewed the gunman face-to-face in close
proximity during daylight hours, circumstances that would permit a positive identification.
Furthermore, Clayton testified, consistently with the victim’s account, that he witnessed
Walton approach the victim, point a gun at her, and steal her belongings. Finally, Walton
was stopped, within an hour and three and one-half miles of the offense, while riding in the
pickup truck Ms. Fulgham saw leave the scene. The truck contained not only the victim’s
stolen possessions but also a pistol matching the victim’s description of the one the gunman
pointed at her during the robbery. All of Walton’s arguments in support of this issue were

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presented to, and rejected by, the jury. As we previously stated, it is for the jury and not this
court to decide what weight to give the evidence and to determine the credibility of the
witnesses. Based on the trial evidence, a rational trier of fact could have found Walton guilty
beyond a reasonable doubt of aggravated robbery. He is not entitled to relief on this issue.

                                       CONCLUSION

       Upon review, we affirm the judgment of the trial court.


                                                     ______________________________
                                                     CAMILLE R. McMULLEN, JUDGE




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