        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                             Assigned on Briefs July 11, 2001

                    STATE OF TENNESSEE v. QUINCY DAVIS

                 Direct Appeal from the Criminal Court for Shelby County
                           No. 99-07827    Chris Craft, Judge



                   No. W2000-01399-CCA-R3-CD - Filed August 10, 2001


The defendant and his four co-defendants were indicted for the aggravated robbery of a convenience
store in Memphis. He was convicted of this offense, while a co-defendant was convicted for robbery.
The defendant was sentenced to ten years in the Tennessee Department of Correction. The defendant
appealed his conviction, asserting as the single assignment of error that the verdicts were
inconsistent, and, therefore, his conviction could not stand. Based upon our review, we affirm the
judgment of conviction.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which DAVID G. HAYES and JERRY L.
SMITH, JJ., joined.

Gerald Stanley Green, Memphis, Tennessee, for the appellant, Quincy Davis.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General;
William L. Gibbons, District Attorney General; Karen Cook, Assistant District Attorney General;
and Greg Gilluly, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

                                           OPINION

                                            FACTS
       The defendant, Quincy Davis, and a co-defendant, Kemon Johnson, were tried jointly for the
robbery of a Griffin Express convenience store in Memphis. The facts of the crime are not
complicated.

        Between 1:00 and 1:30 a.m. on March 12, 1999, the clerk on duty at the store observed a
young man, wearing an NFL-type jacket and a hood over his face, come into the store. She paid
particular attention to him because his clothing was not appropriate for the weather. As he spoke
with her and was counting his money to buy candy, four other young men, each obscuring his face
with a torn T-shirt, entered the store. The clerk was ordered to get down behind the counter, which
she did. She rose back up and saw the members of the group had their hands in their pockets,
apparently with pistols in their hands.

        Three of the men went to an ATM machine in the store and dragged it to the door, assisted
by the first man. They loaded the machine into their van and departed. The clerk called 911 to
report the robbery.

        Officer Rachelle Barham of the Memphis Police Department heard the call regarding the
robbery on her radio and went to a location where she thought she might intercept the van. She then
observed a van, which matched the broadcasted description, approaching her with a large object
protruding from its open side door. As she tried to stop the van, it pulled behind a Sonic Drive-In,
the occupants fleeing from it. The occupant whom she chased and captured was the defendant
Quincy Davis, who was wearing a red and black Chicago Bulls jacket. He told her at first that there
was no gun involved and then said that he was forced to participate, the others putting a gun to his
head. Later, he told Sergeant Bart Ragland of the Memphis Police Department that he had been in
the store with the group and had kicked the door to get out, his face covered with a white T-shirt.
In a separate statement, the co-defendant, Kemon Johnson, admitted that he was the person who had
entered the store first, pretending to buy a piece of candy.

       Neither of the defendants testified at the trial or presented any proof. Quincy Davis was
convicted of aggravated robbery and the co-defendant, Kemon Johnson, was convicted of robbery.

                                             ANALYSIS

       The sole issue on appeal is the alleged disparity in the sentences, the defendant claiming that
he and the co-defendant had “equal criminal liability” and that the convictions for two different
offenses are evidence of “the jury’s misunderstanding and misapplication of the law.” We will
consider this argument.

         There is no requirement for consistency in verdicts. As stated by the United States Supreme
Court:

                    Inconsistency in a verdict is not a sufficient reason for setting it
                aside. We have so held with respect to inconsistency between
                verdicts on separate charges against one defendant, Dunn v. United
                States, 284 U.S. 390, 52 S. Ct. 189, 76 L. Ed. 356 (1932), and also
                with respect to verdicts that treat codefendants in a joint trial
                inconsistently, United States v. Dotterweich, 320 U.S. 277, 279, 64
                S. Ct. 134, 135, 88 L. Ed. 48 (1943).

Harris v. Rivera, 454 U.S. 339, 345, 102 S. Ct. 460, 464, 70 L. Ed. 2d 530 (1981) (footnotes
omitted).



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       This court has applied the same principles in a variety of situations. In State v. Hayes, 7
S.W.3d 52, 57 (Tenn. Crim. App. 1999), a defendant argued that his conviction for facilitation of
robbery could not stand because his co-defendant had been convicted of aggravated robbery:

                   Finally, Reginald Hayes contends that his conviction for
               facilitation of robbery is inconsistent with his brother's conviction for
               aggravated robbery and that his conviction for facilitation should
               therefore be reversed. He argues that the jury could not have found
               him guilty of assisting a robbery when it concluded that Carlos Hayes
               committed an aggravated robbery. In essence, Defendant asserts that
               when Carlos committed an aggravated robbery, he did not commit a
               robbery; and this issue entirely lacks merit.

                   The State correctly cites our supreme court's decision in Wiggins
               v. State, 498 S.W.2d 92 (Tenn. 1973), that consistency of verdict is
               not required, so long as “the evidence establishes guilt of the offense
               upon which the conviction was returned.” Id. at 94. This Court
               recently reaffirmed the principle in State v. Tony Scott Walker, No.
               02C01-9704-CC-00147, 1997 WL 746433, at *3-*5 (Tenn. Crim.
               App., Jackson, Dec. 3, 1997). We are convinced that a verdict of
               guilt for facilitation of robbery was within the purview of the jury,
               and we therefore affirm the conviction on this count.

        Here, there was sufficient evidence of the defendant’s committing aggravated robbery, as
well as of the differing participation in the crime of the defendant and his co-defendant who was
convicted of robbery. The defendant entered the store with three others, all with their faces obscured
with torn T-shirts, and they moved the ATM machine into their van, the members of the group at
least pretending to be armed. In contrast, the co-defendant entered the store first, presumably to
determine, utilizing a torn-worn phrase, “if the coast was clear.” Thus, there were reasons why the
jury could have differentiated between the guilt of the two defendants tried jointly. However, even
had this not been so, the verdict could still stand as to the appealing defendant, for there was
abundant proof of his guilt as to aggravated robbery, and consistency in verdicts as to the defendant
and his co-defendant is not required.

                                          CONCLUSION

       Based upon the foregoing authorities and reasoning, we affirm the judgment of the trial court.



                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE



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