                                                                                       03/13/2017




       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                        Assigned on Briefs February 7, 2017

            STATE OF TENNESSEE v. SHANERICK ABRAHAM

                 Appeal from the Criminal Court for Shelby County
                   No. 15-00697       Glenn Ivy Wright, Judge
                     ___________________________________

                          No. W2016-01497-CCA-R3-CD
                      ___________________________________

A Shelby County Criminal Court jury convicted the defendant, Shanerick Abraham, of
aggravated robbery. On appeal, the defendant argues the evidence was insufficient to
support his aggravated robbery conviction because the victim voluntarily gave the
defendant money, and the alleged taking was temporally remote to the subsequent act of
violence. The defendant additionally alleges ineffective assistance of counsel. Following
our review, we affirm the judgment of the trial court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which THOMAS T. WOODALL, P.J.,
and CAMILLE R. MCMULLEN, J., joined.

 Samuel J. Muldavin, Memphis, Tennessee (on appeal), John Scott, Memphis, Tennessee
(at trial), for the appellant, Shanerick Abraham.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Austin Scofield,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                             Facts and Procedural History

       On October 17, 2014, Larry Saulsberry, the defendant, and others were shooting
dice. Eventually, only Mr. Saulsberry and the defendant remained in the game. Initially,
Mr. Saulsberry was losing several hundred dollars to the defendant. However, when Mr.
Saulsberry started to win his money back, the defendant became angry. Having won his
money back and because the defendant was upset, Mr. Saulsberry left, accidentally
leaving his cell phone behind. About thirty minutes later, Mr. Saulsberry returned to
retrieve his phone but could not locate it and accused the defendant of stealing it. The
defendant pulled out a gun and said, “You feel like I got your phone; you give me
everything.” Mr. Saulsberry backed away in fear, trying not to draw attention to the
situation.

        Meanwhile, the victim, Samuel Washington, was drinking beer with a coworker
outside a nearby neighborhood store when he saw the defendant waiving a gun around
and walking toward Mr. Saulsberry. As Mr. Saulsberry backed away from the defendant,
the victim heard the defendant say, “You need to drop that off,” slang for “give me
whatever is in your pockets.” The victim intervened, stood between Mr. Saulsberry and
the defendant, and told the defendant to put down the gun. According to the victim’s trial
testimony, the defendant then said, “Well, you can drop it off, too.” While the victim
testified he was not in fear, the defendant was holding a gun, and the victim hoped “he
wouldn’t do nothing foolish with it,” so he immediately took $63.00 from his pocket.
According to the victim, he would not have done this had the defendant not wielded a
gun. The defendant then grabbed the money and smacked the victim in the face with the
gun, rendering him unconscious. The victim was unsure about how long he was
unconscious.

       Mr. Saulsberry offered slightly different testimony regarding the events occurring
that evening. According to Mr. Saulsberry, once the defendant pulled out his gun and
started walking toward him, the victim intervened and said, “Jamal,1 why are you doing
this? We are all family. If it’s about some money; here’s some money.” The victim
subsequently handed the defendant money from his pocket, and the defendant smacked
the victim in this face with his gun.

       After the attack, the victim was transported to the hospital and underwent surgery
to repair his broken jaw. Detective Steven Foglesong with the Memphis Police
Department visited the victim at the hospital to get more information regarding the
sequence of events. There, the victim informed Detective Foglesong he had been robbed
and assaulted by the defendant. Detective Foglesong interviewed Mr. Saulsberry as well,
and Mr. Saulsberry also identified the defendant as the victim’s assailant. At trial, the
victim, Mr. Saulsberry, and Detective Foglesong all identified the defendant in the
courtroom.

        The State called the victim, Mr. Saulsberry, and Detective Foglesong to testify at
trial. Following a Momon hearing, the defendant declined to testify and did not call any
witnesses. The jury found the defendant guilty of aggravated robbery. Following a

      1
          The defendant’s nickname is “Jamal.”
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sentencing hearing, the trial court sentenced the defendant as a Range I, standard
offender, to nine years in confinement. The defendant filed a motion for a new trial,
which was denied by the trial court. This timely appeal followed.

                                          Analysis

       On appeal, the defendant first challenges the sufficiency of the evidence to support
his aggravated robbery conviction. The defendant contends the victim voluntarily
relinquished his money in an effort to stop the altercation between Mr. Saulsberry and the
defendant, calling it a “bribe.” The defendant further asserts the defendant struck the
victim subsequent to the taking rather than concomitant or contemporaneous with the
taking, so the evidence did not support a robbery conviction. Finally, the defendant
contends he received ineffective assistance of counsel at trial due to trial counsel’s failure
to object to leading questions. After a thorough review of the record, we affirm the
judgment of the trial court.

I.     Sufficiency of the Evidence

        When the sufficiency of the evidence is challenged, 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 crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also
Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or
jury shall be set aside if the evidence is insufficient to support the findings by the trier of
fact of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92
(Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All
questions involving the credibility of witnesses, the weight and value to be given the
evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the
trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts
in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).
Our Supreme Court has stated the rationale for this rule:

       This well-settled rule rests on a sound foundation. The trial judge and the
       jury see the witnesses face to face, hear their testimony and observe their
       demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be
       given to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

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Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d
523 (1963)). “A jury conviction removes the presumption of innocence with which a
defendant is initially cloaked and replaces it with one of guilt, so that on appeal a
convicted defendant has the burden of demonstrating that the evidence is insufficient.”
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

        Guilt may be found beyond a reasonable doubt 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 standard of review for
sufficiency of the evidence “‘is the same whether the conviction is based upon direct or
circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)
(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The jury as the trier of
fact must evaluate the credibility of the witnesses, determine the weight given to
witnesses’ testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245
S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim.
App. 1978)). Moreover, the jury determines the weight to be given to circumstantial
evidence and the inferences to be drawn from this evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence are questions
primarily for the jury. Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d
646, 662 (Tenn. 2006)). This Court, when considering the sufficiency of the evidence,
shall not reweigh the evidence or substitute its inferences for those drawn by the trier of
fact. Id.

       Aggravated robbery is robbery accomplished with a deadly weapon. Tenn. Code
Ann. § 39-13-402(a)(1). 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(a). A theft of property occurs when someone, with the intent to
deprive the owner of property, knowingly obtains or exercises control over the property
without the owner’s effective consent. Tenn. Code Ann. § 39-14-103(a).

        Violence is defined as “physical force unlawfully exercised so as to damage,
injure or abuse.” State v. Fitz, 19 S.W.3d 213, 217 (Tenn. 2000). Pointing a weapon
satisfies the element of violence. State v. Allen, 69 S.W.3d 181, 186 (Tenn. 2002). Fear
is “fear of present personal peril from violence offered or impending.” State v. Bowles,
52 S.W.3d 69, 80 (Tenn. 2001).

       “[W]hether a taking is properly characterized as a theft or a robbery is contingent
upon whether and when violence or fear is imposed.” State v. Owens, 20S.W.3d 634,
637 (Tenn. 2000). To constitute a robbery, the requisite violence or fear must precede or
be concomitant or contemporaneous with the taking. Id. at 641. In State v. Swift, 308
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S.W.3d 827 (Tenn. 2010), our Supreme Court confirmed “[t]he temporal proximity
between the taking of the property and the use of violence or fear is the sole relevant
factor” when elevating theft to robbery, and this temporal proximity is assessed by
ascertaining when the taking was complete. Id. at 829.

        The defendant first asserts the evidence was insufficient to support his aggravated
robbery conviction because the victim voluntarily gave him money so he would put down
the gun, essentially offering a bribe. This argument defies logic, and if accepted as a
viable defense, would negate almost all aggravated robbery charges. According to the
proof presented by the State at trial, the victim intervened in the altercation between Mr.
Saulsberry and the defendant in an effort to get the defendant to put away his gun. After
the victim stepped between the men, the defendant continued to hold the gun and
commanded the victim to “drop it off,” which the defendant understood as slang for “give
me whatever is in your pockets.” The victim testified that while he was not afraid, he
would not have pulled money out of his pocket after being commanded to do so had the
defendant not been holding a gun. Moreover, the defendant subsequently used the gun to
knock the victim unconscious. The use of a gun during a taking satisfies the element of
“violence.” See State v. Travis Seiber, No. W2015-00221-CCA-R3-CD, 2016 WL
716307, at *6 (Tenn. Crim. App. Feb. 23, 2016). Viewing this evidence in the light most
favorable to the State, a rational trier of fact could have found the essential elements of
aggravated robbery beyond a reasonable doubt. The defendant is not entitled to relief on
this issue.

       Next, citing Owens, the defendant contends the evidence was insufficient to
support his aggravated robbery conviction due to the lapse of time between the taking and
violent act. The defendant argues the victim testified he was “just standing there drinking
[his] beer” when the defendant smacked him in the face with his gun, making the use of
violence temporally remote from the taking. Again, the defendant’s argument is without
merit.

       Both Owens and Swift address the necessary proximity of the taking to the use of
violence when determining the sufficiency of the evidence to support convictions for
robbery and aggravated robbery. In Owens, the defendant took stolen merchandise out of
the store and ran approximately five blocks before any act of violence or fear occurred, so
our Supreme Court determined the evidence was insufficient to support the defendant’s
robbery conviction. Owens, 20 S.W. 3d at 637-642. In Swift, the defendant completed
the taking by concealing unwrapped stolen merchandise in his pants before swinging a
knife at store employees when exiting the store several minutes later. Swift, 308 S.W.3d
at 831. Because the taking was complete prior to the act of violence or use of fear, our
Supreme Court held the evidence was insufficient to support the defendant’s conviction
for aggravated robbery. Id.
                                           -5-
       In the present matter, the State presented evidence the defendant held the gun in
plain sight throughout his encounter with the victim. After being commanded to give the
defendant the contents of his pockets, the victim gave the defendant $63, and the
defendant hit the victim in the face with his gun. Unlike Swift and Owens, where the use
of fear or violence occurred well after the taking, the taking here was simultaneous with
the use of violence. When viewing the evidence presented at trial in the light most
favorable to the State, the evidence was sufficient to support his aggravated robbery
conviction. The defendant is not entitled to relief on this issue.

II.    Effectiveness of Counsel

        Finally, the defendant argues he received ineffective assistance of counsel because
his attorney failed to object to two leading questions. Because the defendant raises
ineffective assistance of counsel for the first time on appeal, it has been waived. Tenn. R.
App. P. 3(e); see also State v. Alvarado, 961 S.W.2d 136, 153 (Tenn. Crim. App. 1996).
Moreover, the defendant’s failure to raise ineffective assistance of counsel in his motion
for a new trial deprived the trial judge of the opportunity to evaluate trial counsel’s
performance, so this Court does not have a proper record before it. State v. Randell
Tilley, No. 53, 1990 WL 205232, at *2 (Tenn. Crim. App. Dec. 14, 1990). For these
reasons, this Court has cautioned:

       Raising issues pertaining to the ineffective assistance of counsel for the first
       time in the appellate court is a practice fraught with peril. The appellant
       runs the risk of having the issue denied due to a procedural default, or, in
       the alternative, having a panel of this Court consider the issue on the merits.
       The better practice is to not raise the issue on direct appeal under the
       circumstances. The issue can be subsequently raised in a post-conviction
       proceeding if the appellant’s direct appeal, as here, is not successful.

State v. Jimmy L. Sluder, No. 1236, 1990 WL 26552, at *7 (Tenn. Crim. App. March 14,
1990) (emphasis in original).

        Because the defendant raises his ineffective assistance of counsel claim for the
first time on appeal, it has been waived and will not be considered by this Court. The
defendant is not entitled to relief on this issue.




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                                    Conclusion

       Based upon the foregoing authorities and reasoning, the judgments of the trial
court are affirmed.


                                          ____________________________________
                                          J. ROSS DYER, JUDGE




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