         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT JACKSON

                        DECEMBER 1998 SESSION           FILED
                                                         August 6, 1999

                                                       Cecil Crowson, Jr.
                                                      Appellate Court Clerk
STATE OF TENNESSEE,           )
                              ) C.C.A. No. 02C01-9711-CR-00431
      Appellee,               )
                              ) Shelby County
V.                            )
                              ) Honorable Joseph B. Dailey, Judge
                              )
TONY FASON,                   ) (Aggravated Robbery; Attempt to Commit
                              ) Aggravated Robbery; Aggravated Assault)
      Appellant.              )
                              )



FOR THE APPELLANT:               FOR THE APPELLEE:

JOSEPH S. OZMENT                 JOHN KNOX WALKUP
369 North Main Street            Attorney General & Reporter
Memphis, TN 38103
                                 MARVIN E. CLEMENTS, JR.
                                 Assistant Attorney General
                                 Criminal Justice Division
                                 Cordell Hull Building, 2d Floor
                                 425 Fifth Avenue North
                                 Nashville, TN 37243-0493

                                 WILLIAM L. GIBBONS
                                 District Attorney General

                                 JAMES M. LAMMEY
                                 Assistant District Attorney General
                                 Criminal Justice Center-Third Floor
                                 201 Poplar Avenue
                                 Memphis, TN 38103




OPINION FILED: ___________________



AFFIRMED


JOHN EVERETT WILLIAMS,
Judge
                                          OPINION

       The Shelby County Circuit Court convicted Tony Fason, the defendant, by

jury verdict of aggravated robbery, attempt to commit aggravated robbery, and

aggravated assault. He alleges that the evidence was insufficient to support the

conviction, that the trial court erred in allowing reference to a stolen car used in

the crimes, and that the trial court improperly charged the jury. 1 He also alleges

that cumulative error merits a new trial. The trial court sentenced him to twelve

years each on the attempted aggravated robbery and the aggravated assault

convictions and to twenty-five years on the aggravated robbery conviction. The

trial court imposed these sentences consecutively for an effective sentence of

forty-nine years as a Range III offender in the Tennessee Department of

Correction, and the defendant appeals the consecutive sentencing. He requests

a new trial or, in the alternative, concurrent sentencing. We AFFIRM the

convictions and the sentencing.



                                             FACTS

       John and Juanita Warner stopped at a filling station in Memphis for fuel

and directions. As Mr. Warner walked to the station service window, another car

pulled into the lot. An individual wearing a stocking cap over his face and

wielding a handgun exited that vehicle, approached Mr. Warner, and demanded

money. Mr. Warner saw another person in the vehicle. Mr. Warner would not

relinquish his wallet, and the subject approached the Warners’ vehicle and

robbed Mrs. Warner of her purse. The accomplice in the vehicle urged the

assailant to hurry.



       Brenda Lee O’Neal, an employee at the station, ran to the rear of the store

when she saw the man with the firearm. She observed the remainder of the



   1
    The defendant challenges the criminal responsibility charge, the trial court’s failure to charge
“moral certainty,” and that court's denying his special requests for jury instructions.

                                                -2-
incident on the security camera monitor. 2 She testified that she thought two

subjects exited the vehicle.



       From a distance, Sergeant. J. D. Woods of the Memphis Police Department

observed the initial confrontation between Mr. Warner and the subject with the

gun. He could not discern what was occurring but was suspicious and followed

the subjects’ vehicle when it left the station parking lot. One subject leaned from

the car and fired several shots at Woods. A crash ended the ensuing pursuit,

and the impact threw one subject from the vehicle. The other subject exited the

vehicle, brandishing a firearm, and ran toward Woods. Woods struck this

subject with his patrol vehicle.



        Woods and other officers pursued the two subjects when they fled on foot.

Woods apprehended one subject, and Officer Garland Shull pursued the

defendant. Shull observed the defendant drop or throw down a wallet and a

coat. Shull found a purse when he retraced the defendant’s path. Mrs. Warner

later claimed the purse and the wallet. Shull broadcast a general clothing

description for his quarry, and the defendant’s clothing, when Officer S. D.

Chandler took him into custody in the area, matched this description.



                                              ANALYSIS

                                    Sufficiency of the Evidence

       The appellant claims that the evidence was insufficient as a matter of law to

sustain the convictions. When an appellant challenges the sufficiency of the

evidence, this Court must determine whether, after viewing the evidence in a

light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of a crime beyond a reasonable doubt. See Jackson v.

Virginia, 443 U.S. 307, 319 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn.

1985); Tenn. R. App. P. 13(e). This Court grants the appellee the strongest

   2
     The jury did not vie w a ta pe of the inc ident beca use the re cord ing m ech anis m a ppa rently
failed.

                                                    -3-
legitimate view of the evidence and all reasonable inferences that may be drawn

therefrom. See State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).



     The credibility of witnesses, the weight of their testimony, and the

reconciliation of conflicts in the evidence are matters entrusted exclusively to the

trier of fact. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v.

Gentry, 881 S.W.2d 1, 3 (Tenn. Crim. App. 1993). A jury verdict for the state

accredits the testimony of the state’s witnesses and resolves all conflicts in favor

of the state. See State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983).

Moreover, a guilty verdict replaces the defendant’s presumption of innocence

with a presumption of guilt. See State v. Grace, 493 S.W.2d 474, 476 (Tenn.

1973). An appellant challenging the sufficiency of the evidence carries the

burden of illustrating why the evidence insufficiently supports the verdict. See

State v. Freeman, 943 S.W.2d 25, 29 (Tenn. Crim. App. 1996).



     This Court must determine if the state presented evidence sufficient for any

rational trier of fact to conclude that the elements of the pertinent offenses were

satisfied beyond a reasonable doubt. One may commit assault by intentionally

or knowingly causing another to “reasonably fear imminent bodily injury,” Tenn.

Code Ann. § 39-13-101(a)(2), and the offender’s use or display of a deadly

weapon may constitute aggravated assault, Tenn. Code Ann. § 39-13-102(a).

“Robbery is the intentional or knowing theft of property from the person of

another by violence or putting the person in fear,” Tenn. Code Ann. § 39-13-

401(a), and an offender’s using a deadly weapon may elevate a robbery offense

to aggravated status, Tenn. Code Ann. § 39-13-402 (a)(1)-(2). Finally, one who



       (1) [i]ntentionally 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; [or]
       (2) [a]cts 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) [a]cts with intent to complete a course of action or cause a
       result that would constitute the offense, under the circumstances

                                        -4-
       surrounding the conduct as the person believes them to be, and
       the conduct constitutes a substantial step toward the commission
       of the offense


commits criminal attempt if they act with the culpability otherwise required for the

offense. Tenn. Code Ann. § 39-12-101(a)(1)-(3).



       The evidence clearly satisfies the essential elements of the offenses. The

testimony, by two victims and by the service station clerk, and the police officers’

apprehension of the appellant and their retrieval of property taken from Mrs.

Warner supports the convictions. Although the appellant cites inconsistencies in

the state’s case, such as O’Neal’s recalling two subjects exiting the vehicle, the

trier of fact resolved these inconsistencies. This issue is without merit.



                               Evidence of the Stolen Car

       The appellant argues that the trial court erred by allowing evidence that

the fleeing vehicle was stolen. Evidence of other crimes or wrongs is

inadmissible to prove the character of an accused for purposes of establishing

action in conformity with that particular trait, but such evidence may be otherwise

admissible. Tenn. R. Evid. 404. The court must follow certain procedural

safeguards when admitting such evidence. Prior to admitting the evidence, the

trial court must, on request, hold a hearing outside the jury’s presence and

determine if a material reason, other than character issues, exists for presenting

the evidence to the jury. Id. On request, the court must state on the record the

material issue, the ruling, and the reasons for admitting the evidence. Id.



       If these procedural requirements are met, this Court reviews Rule 404(b)

issues under an abuse of discretion standard. See State v. DuBose, 953

S.W.2d 649, 652-53 (Tenn. 1997). The trial court, at a pretrial hearing, initially

held the evidence inadmissible but reversed that ruling during a subsequent jury-

out discussion with counsel. The fact that the vehicle was stolen became

relevant because of the defendant’s expressed intention to challenge his being

                                         -5-
identified as the perpetrator. Absent the evidence, the jury might speculate that

the defendant was the owner of the car and thus more likely to have been in the

car. The trial court weighed the prejudicial effect against the relevancy of the

evidence, as required by the Rules of Evidence. Further, the trial court

contemporaneously limited application of the evidence. The trial court satisfied

procedural requirements, and we do not find an abuse of discretion by the trial

court. This issue is without merit.



  Jury Instruction--Criminal Responsibility, Facilitation, and Theory of Defense

       The appellant proposes that the trial court erroneously charged the jury

regarding criminal responsibility. One is criminally responsible as a party to an

offense “if the offense is committed by the person’s own conduct, by the conduct

of another for which the person is criminally responsible, or by both.” Tenn.

Code Ann. § 39-11-401; see also State v. James R. Lemacks, No. 01C01-9605-

CC-00227 (Tenn. Crim. App. filed June 26, 1997, at Nashville). “[A]n accused’s

constitutional right to a jury necessarily entails a right that the jury be unanimous

as to which offense constitutes the crime for which the defendant is convicted.”

State v. Williams, 920 S.W.2d 247, 257 (Tenn. Crim. App. 1995). “Problems

with a unanimous jury verdict generally arise when the State fails to elect among

different offenses.” Id. However, criminal responsibility under the Code is not a

statutory offense but rather “a legal theory of criminal liability by which a

defendant may be convicted for an offense when there are multiple actors

involved.” State v. Gary Prude, No. 02C01-9711-CR-004255 (Tenn. Crim. App.

filed Aug. 12, 1998).



     The trial court did not charge the jury with the requested criminal

responsibility instruction but did provide the relevant statutory definition. The

trial court also rejected the defendant’s proposed instruction regarding his theory

of defense based on identification, but that court did advise the jury that guilty

verdicts required their determining, beyond a reasonable doubt, that the



                                          -6-
defendant was the person who committed the crimes. This Court should only

invalidate a jury instruction if it, read as a whole, “fails to fairly submit the legal

issues or misleads the jury as to the applicable law.” State v. Phipps, 883

S.W.2d 138, 142 (Tenn. Crim. App. 1994). “When the trial judge gives

instructions that correctly, fully, and fairly set forth the applicable law, it is not

error to refuse to give a special requested instruction.” State v. Bohanan, 745

S.W.2d 892, 897 (Tenn. Crim. App. 1987).



      The defendant also claimed that the trial court erroneously failed to issue a

jury charge regarding criminal responsibility for facilitation of a felony. The

evidence presented to the jury indicates two defendants acting in concert with

equal responsibility. They selected a vulnerable couple in a location and at a

time conducive to a successful robbery, they fled from a police car before that

vehicle even initiated a traffic stop, and one defendant hung from the vehicle and

fired shots at the officer as the other defendant drove. Nothing in the record

supports a conclusion that either defendant possessed any intent other than to

commit armed robbery and to then escape arrest by any means possible. See

Tenn. Code Ann. § 39-11-403. Although facilitation may be a lesser included

offense of a greater charge, see State v. Hicks, 835 S.W.2d 32 (Tenn. Crim.

App. 1992), failure to charge a lesser offense on a record clearly indicative of the

greater offense and devoid of evidence permitting an inference of the lesser

offense is not error, see State v. Stephenson, 878 S.W.2d 530, 551 (Tenn.

1994). We do not find the alleged error in the jury charge.



                                    Moral Certainty

       The trial court charged the jury with Tennessee Pattern Jury Instruction

2.03(a), instead of the defendant’s requested Tennessee Pattern Jury Instruction

2.03, which incorporates a “moral certainty” component. No “particular form of

words” are required in an instruction if the trial court “instructs the jury on the

necessity that the defendant’s guilt be proved beyond a reasonable doubt.”



                                           -7-
Victor v. Nebraska, 511 U.S. 1,5 (1994) (addressing jury instruction requirements

under the United State Constitution). “Moral certainty” is not required language

in a jury instruction. See State v. Melvin Edward Henning, No. 02C01-9703-CC-

00126 (Tenn. Crim. App. filed Oct. 24, 1997, at Jackson) (A panel of this Court

concluded that lack of “moral certainty” language does not render Tennessee

Pattern Jury Instruction 2.03(a) constitutionally deficient.). This issue is without

merit.



                          The Credibility of Witness Statements

         The appellant further claims error in the trial court’s denying his requests

for Tennessee Pattern Jury Instruction 42.04(a). The appellant’s brief states that

because law enforcement officers provided “much” of the trial testimony, the

credibility instruction was prejudicial to him. The appellant neither explains why

the alleged portions of testimony prejudiced the jury, thus mandating the

alternative instruction, nor how the alternative instruction would cure this

prejudice. This issue is without merit.



                                    Cumulative Error

         The appellant proposes that the alleged errors cumulatively constitute

prejudicial error and thus mandate a new trial. As explained by the preceding,

we do not agree with the defendant’s assertions regarding error at his trial. This

issue is without merit.



                                Consecutive Sentencing

         The appellant argues that the trial court erroneously imposed consecutive

sentencing. See Tenn. Code An. § 40-35-401(a). When an accused challenges

the length or manner of service of a sentence, this Court reviews the record de

novo “with a presumption that the determinations made by the court from which

the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d). The

presumption of correctness is contingent on the record indicating both the lower



                                           -8-
court’s reasons for arriving at a sentencing decision and compliance with the

statutory sentencing guidelines and principles. See State v. Wilkerson, 905

S.W.2d 933, 934 (Tenn. 1995). The appellant bears the burden of showing that

the sentencing was improper. See Tenn. Code Ann. § 40-35-401(d) sentencing

comm’n cmts; State v. Jernigan, 929 S.W.2d 391, 395 (Tenn. Crim. App. 1996).



       The record shows that the lower court heard the arguments from both the

state and the defendant and evaluated these arguments before imposing

sentence. This Court therefore applies the presumption of correctness in

considering (1) the evidence received at trial and at the sentencing hearing; (2)

the presentence report; (3) the principles of sentencing and arguments as to

sentencing alternatives; (4) the nature and characteristics of the criminal conduct

involved; (5) any statutory mitigating or enhancement factors; (6) any statement

made by the accused on his own behalf; and (7) the potential or lack of potential

for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102,-103,-210;

State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).



       The appellant correctly asserts that a trial court should not automatically

impose consecutive sentences for defendants convicted of more than one

offense. See Tenn. Code Ann. § 40-35-115(a). We agree with the trial court’s

finding that the defendant is “an offender whose record of criminal activity is

extensive.” Tenn. Code Ann. § 40-35-115 (b)(1)(2). The defendant's prior

convictions record includes two Class D, four Class C, one Class E, and

numerous misdemeanor convictions. Further, he “is a dangerous offender

whose behavior indicates little or no regard for human life, and no hesitation

about committing a crime in which the risk to human life is high.” Id. at (b)(1)(4).

The applicable statute allows consecutive sentencing based on either of these

findings. The Tennessee Supreme Court has ruled that a trial court must find

two additional factors prior to imposing consecutive sentencing pursuant to a

finding that a defendant is a “dangerous offender”: that the “terms imposed are



                                        -9-
reasonably related to the severity of the offenses committed and are necessary

to protect the public from further criminal acts by the offender.” State v.

Wilkerson, 905 S.W.2d 933, 938 (Tenn. 1995). We would find that the record

establishes these additional requirements. This issue is without merit.



                                  CONCLUSION

       We AFFIRM the judgment below.




                                               _____________________________
                                               JOHN EVERETT W ILLIAMS, Judge




CONCUR:




_________________________________
GARY R. WADE, Presiding Judge




_________________________________
THOMAS T. W OODALL, Judge




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