            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                                      FILED
                                                       March 31, 1998

                                                   Cecil Crowson, Jr.
STATE OF TENNESSEE,           )                       Appellate C ourt Clerk
                              )   No. 03C01-9403-CR-00124
      Appellee                )
                              )   SULLIVAN COUNTY
vs.                           )
                              )   Hon. ARDEN L. HILL, Judge
SCOTT E. FAIN,                )   (Sitting by Designation)
                              )
      Appellant               )   (Esp. Aggravated Robbery)



For the Appellant:                For the Appellee:

Raymond C. Conkin, Jr.            Charles W. Burson
Attorney at Law                   Attorney General and Reporter
152 Broad Street, Suite 207
Kingsport, TN 37660               Clinton J. Morgan
                                  Assistant Attorney General
                                  Criminal Justice Division
                                  450 James Robertson Parkway
                                  Nashville, TN 37243-0493


                                  H. Greeley Wells, Jr.
                                  District Attorney General

                                  Phyllis Miller and David Overbay
                                  Asst. District Attorneys General
                                  Blountville, TN 37617




OPINION FILED:

AFFIRMED



PER CURIAM
                                                   OPINION



         The appellant, Scott E. Fain, was indicted by the Sullivan County Grand Jury

on one count of especially aggravated robbery, a class A felony. 1 The appellant was

convicted by a jury of the lesser offense of robbery, a class C felony, and received a

sentence of nine years confinement as a range II offender. In this appeal as of right,

the appellant challenges (1) the sufficiency of the convicting evidence and (2)

whether the trial court erred by failing to instruct the jury on the offense of accessory

after the fact.



         After a review of the record, we affirm the judgment of the trial court.




                                                Background



         Around 7:00 p.m. on the evening of January 25, 1993, Gene Hammonds, a

cab driver for Gilliam Cab Company in Kingsport, was dispatched to 232 Gale Street

which is located in the Bloomingdale area of Kingsport. The cab was dispatched at

the request of Clint Jennings who, at the time, was residing at the Gale Street

address. Also present was the appellant who was visiting with Jennings. The two

had spent most of the afternoon consuming alcohol. At some point, Jennings

decided to visit a former girlfriend and reclaim a ring which he had previously given

to her. The Gilliam Cab Company was then called. Before the cab arrived,

Jennings obtained a claw hammer from his bedroom and a butcher knife from the

kitchen. Both weapons were concealed under his clothing. Jennings testified that

the appellant was unaware that he possessed these weapons. Upon arrival of the

cab, Hammond was instructed to drive to Fletcher’s Pool Hall on Dale Street. The


         1
          The a ppellant an d a co-d efenda nt, Clint Jen nings, we re jointly indicted fo r this offen se.
Prior to the appellant’s trial, the co-defendant pled guilty to the offense of especially aggravated
robb ery.

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appellant sat in the front passenger seat; Jennings sat in the back seat directly

behind the driver. After both entered the cab, Hammond related that, “I knew

something wasn’t right because he [the appellant] wouldn’t look at me.” Shortly

after leaving the Gale Street address, Jennings began beating the driver in the back

of his head with the hammer. As a result of the blows, Hammond sustained four

one-inch lacerations to his head which required medical attention. Frightened and in

pain, Hammond quickly stopped the car and jumped out with the motor still running.

As he was fleeing from the cab, Hammond heard Jennings say “kill the SOB.”

Although Hammond conceded that the appellant never hit or touched him during the

course of the robbery, he testified that the appellant “slid over on the driver’s side

when [Jennings] started hitting me.” At trial, Jennings testified that the appellant

had no knowledge of nor did he participate in the robbery. Moreover, he stated that

the appellant repeatedly requested to be let out of the cab. Hammond contradicted

Jennings’ testimony in this regard. He stated that he never heard the appellant tell

Jennings to stop the attack nor ask to be let out of the cab.



       Once out of the cab, Hammond went to a nearby house for assistance but

was unsuccessful. He then proceeded to run across the street to another house,

where the resident telephoned the police. While Hammond was waiting for the

police to arrive, he observed his cab coming back down the road toward him at a

slow speed. Standing approximately within ten feet and under bright streetlights,

Hammond identified the appellant as the person driving his cab as it passed by him.

He observed Jennings in the passenger side of the front seat.



       A report of the theft of the cab was dispatched to law enforcement officers

patrolling in the area. Trooper Jackie Watkins of the Tennessee Highway Patrol

observed a cab occupied by two males stopped on the side of the road. Watkins

turned his cruiser around to begin pursuit. Soon thereafter, a Sullivan County

deputy also joined in the pursuit. At this point, Watkins stated that the cab quickly


                                          3
accelerated. He stated, “they was [sic] absolutely flying, as a matter of fact, they

went airborne. . . .” Watkins testified that it appeared that the two men were

attempting to “ditch” the car, “they would slow down, and then . . .they would take

off. . . .” The suspects finally were able to “ditch” the cab. In Watkins’ attempt to

strategically use his cruiser to block the driver from exiting the vehicle, the cruiser

collided with the driver’s side door of the cab. Despite this attempt, the two suspects

were able to flee on foot. At this point, it was determined that Jennings, who was

apprehended at the scene by another officer, was the driver of the cab. Despite an

encounter with a canine officer and his tracking dog, the appellant managed to

escape. The appellant made his way to the home of Clifford Brady and informed

Brady that “the law” had “told him not to be out . . . because they was [sic] hunting

someone.” The appellant spent the night at Brady’s home and, the next day,

accompanied Brady and his mother to the grocery store. Presumably during this

excursion, the appellant informed Brady that the police were looking for Jennings.

The evidence at trial established that the appellant’s home was one-half mile closer

to the site of the abandoned cab than Brady’s residence. The appellant was not

apprehended until several weeks later.




                            I. Sufficiency of the Evidence



       The appellant contends that the evidence was insufficient to convict him of

the offense of robbery. Specifically, he argues that, because he had no prior

knowledge of the planned attack and because he did not actively participate in the

robbery, he cannot be held criminally responsible for the acts of Clint Jennings.

Moreover, he asserts that the inconsistencies between the testimony of the

witnesses at trial makes it impossible for a rational trier of fact to have found the

essential elements of the crime to have been present beyond a reasonable doubt.

Specifically, the appellant refers to inconsistencies between the victim’s recitation of


                                          4
the circumstances of the offense and the version presented by Clint Jennings.

Although we acknowledge the discrepancies between the State’s proof and the

appellant’s proof at trial, the determination of the weight and credibility of the

testimony of witnesses and reconciliation of conflicts in that testimony are matters

entrusted exclusively to the trier of fact, and not this court. State v. Sheffield, 676

S.W.2d 542, 547 (Tenn. 1984). Despite the conflicts within the testimony at trial, as

the arbiters of the credibility of the witnesses, the jury chose to accredit the

testimony of the State’s witnesses and reject the claims of the appellant. This court

will not re-evaluate the evidence or substitute its inferences for those drawn by the

trier of fact from the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.

1978); Farmer v. State, 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978); State v. Grace,

493 S.W.2d 474, 476 (Tenn. 1973). A conviction may only be set aside when the

reviewing court finds that the evidence is insufficient to support the finding of the

trier of fact. Tenn. R. App. P. 13(e).



       When there is a challenge to the verdict based upon the sufficiency of the

evidence, this court must review the evidence in the light most favorable to the

prosecution and determine whether “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, 99 S.Ct. 2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253,

259 (Tenn. 1994); Tenn. R. App. P. 13(e). A guilty verdict accredits the testimony

of the witnesses for the State, and a presumption of guilt replaces the presumption

of innocence. Grace, 493 S.W.2d at 476. Moreover, the appellant bears the burden

of proving that the evidence is insufficient to support the jury verdict in his case.

State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1992).



       Robbery is defined as 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 (1991). Again, the appellant argues that, although he was present during


                                          5
the robbery, he did not actively participate in the offense. Accordingly, he argues

that there is insufficient evidence to show that he possessed the requisite intent to

engage in the robbery. This argument, however, ignores the provisions of Tenn.

Code Ann. § 39-11-402 which permits criminal liability to be imposed based upon

the conduct of another. A person is criminally responsible for the conduct of

another if, “acting 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, aid,

or attempts to aid another person to commit the offense . . . .” Tenn. Code Ann. §

39-11-401; -402(2) (1991); see also State v. Carson, 950 S.W.2d 951, 953 (Tenn.

1997). Moreover, guilt may be predicated upon direct evidence, circumstantial

evidence, or a combination of direct and circumstantial evidence. State v. Carey,

914 S.W.2d 93, 95 (Tenn. Crim. App. 1995).



       The proof in the present case established that the appellant sat in the front

passenger seat of the cab and “slid over” to the driver’s side when Jennings began

striking the victim with a hammer. He remained silent during Jennings’ attack on

Hammond, and, after Hammond fled from the cab, the appellant was seen driving

the stolen vehicle away. Moreover, since the attack was initiated while the vehicle

was moving, the trier of fact could reasonably infer that the appellant purposefully

sat in the front seat in order to gain control of the vehicle during the attack.

Additionally, after having several opportunities to withdraw from the criminal venture,

the appellant remained in joint possession of the stolen cab when it came to rest in

the ditch. Finally, the appellant’s flight from the scene, including his attempt to

evade confrontation with law enforcement officers, is a relevant circumstance from

which, when considered with the other facts and circumstances in evidence, a jury

can properly draw an inference of guilt. See State v. Zagorski, 701 S.W.2d 808,

813 (Tenn. 1985); State v. Hill, 875 S.W.2d 278, 284 (Tenn. Crim. App. 1993),

perm. to appeal denied, (Tenn. 1994); Rogers v. State, 455 S.W.2d 182, 187 (Tenn.

Crim. App. 1970). These facts, both circumstantial and direct, support the jury’s


                                          6
findings that the appellant acted with the intent to assist in the robbery by aiding or

attempting to aid Jennings in the commission of the offense. By aiding and

assisting in the offense, the appellant became criminally responsible for the conduct

committed by Jennings. Accordingly, we conclude, as a matter of law, that the

evidence is sufficient to support a finding by the jury that the appellant is guilty of

robbery. This issue is without merit.2




            II. Failure to Instruct Jury on Offense of Accessory After the Fact



        In his final issue, the appellant contends that the trial court’s denial of his

request for a jury charge on the offense of accessory after the fact was error.

Whether or not the facts of this case would have constituted the crime of being an

accessory after the fact is a nonissue, because that felony was not charged in the

indictment. The law is clear that a defendant cannot be convicted of an offense that

is neither charged in the indictment nor is a lesser grade or lesser included offense

of the offense charged. See State v.Trusty, 919 S.W.2d 305, 310-14 (Tenn. 1996);

State v. Hodgkinson, 778 S.W.2d 54, 63 (Tenn. Crim. App. 1989); State v. Norris,

684 S.W.2d 650, 655 (Tenn. Crim. App. 1984); State v. Hoosier, 631 S.W.2d 474,

476 (Tenn. Crim. App. 1982). This issue is without merit.




        2
          The appellant also argues that he cannot be found guilty of robbery via criminal
responsibility because Jennings pled guilty to especially aggravated robbery. In other words, he
con tend s tha t the ju ry cou ld hav e only f oun d him guilty of espe cially ag grav ated robb ery via
criminal responsibility because that is the offense committed by the principal actor. This argument
is misplaced.

        In a prosecution in which a person’s criminal responsibility is based upon the
        conduct of another, the person may be convicted on proof of commission of the
        offe nse and t hat th e per son was a par ty to or f acilita ted its com mis sion , and it is
        no defe nse tha t:
                 (2) T he pe rson for w hos e con duc t the d efen dan t is crim inally re spo nsib le
        has be en acq uitted, has not been prosec uted or c onvicted , has been convicted of
        a different offense or different type or class of offense, or is immune from
        prosec ution. Te nn. Cod e Ann. § 39-11-4 07(2). (em phasis a dded).

                                                      7
                                     III. Conclusion



         After a review of the issues presented, we affirm the judgment of the trial

court.




                                    PER CURIAM




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