State v. Hall , 1983 Tenn. Crim. App. LEXIS 402 ( 1983 )

OPINION

TATUM, Judge.

The defendant, Carvello Reynaldo Hall, was indicted along with his codefendants, Frederick Arnell Raiford and Anthony Dwane Rodgers, for armed robbery. The jury found Raiford and Rodgers guilty of armed robbery but found the defendant Hall guilty of aiding and abetting only simple robbery. Hall’s punishment was fixed at not less nor more than 5 years in the State penitentiary.

On this appeal, Hall presents the single issue of whether the evidence was sufficient to support the guilty verdict returned by the jury. After the State’s evidence was closed, the defendant Hall moved for a judgment of acquittal on the ground that the State’s evidence was insufficient to sustain a conviction. T.R.Cr.P. 29(a). When the trial judge overruled Hall’s motion for judgment of acquittal, Hall stood on the motion. He presented no further proof, disclaimed any benefit of any evidence introduced by the codefendants, and took the position that the evidence presented by the codefendants would not be binding upon him. He participated no further in the trial. See Mathis v. State, 590 S.W.2d 449 (Tenn.1979).

Thus, it is the duty of the trial court and this court to look only at all of the evidence introduced by the State, to take the strongest legitimate view of it in favor of the State, and to allow all reasonable inferences from it in the State’s favor; to discard all countervailing evidence, and if then, there is any dispute as to any material determinative evidence, or any doubt as to the conclusion to be drawn from the evidence of the State, the trial judge should properly overrule the motion and it will be our duty to affirm. State v. Thompson, 549 S.W.2d 943 (Tenn.1977). In dealing with a motion for a judgment of acquittal, unlike a motion for a new trial, the trial judge is concerned only with the legal sufficiency of the evidence and not with the weight of the evidence. The trial court had before it a question of law. State v. Jim Johnson (Court of Criminal Appeals No. 81—309-III, filed at Nashville, January 18,1983.)

With these principles in mind, we will summarize the evidence introduced by the State as it pertains to Hall. The State’s proof clearly established that Raiford and Rodgers entered a “Stop N Go” store in Memphis between midnight and 1:00 o’clock A.M. on December 1, 1981, and robbed the clerk with a pistol. Marked “bait” money, a gold watch, and a package of Salem cigarettes were obtained in the robbery. When the bait money was removed from the cash register, a Cobra or silent alarm was set off at the pólice station.

Officer Russell Young received a radio dispatch advising of the robbery and, being in the neighborhood, he drove toward the Stop N Go store. Officer Young observed a green automobile traveling in the opposite direction and, after seeing it, received information over the radio that a green automobile was involved in the robbery. Officer Young turned his vehicle around and lost the green automobile in doing so. However, he saw it again and stopped it at a point approximately 2 miles from the Stop N Go store. The green automobile was occupied by Raiford, Rodgers, and the defendant, Hall. Raiford was the driver of the automobile but the evidence conflicts as to whether Hall occupied the front passenger seat or was sitting in the backseat. The pistol used in the robbery was on the floorboard of the car on the driver’s side. In the backseat there was clothing that had been worn by the robbers. Currency and a package of Salem cigarettes was stuffed in the crack between the rear seat and the back of the seat. Raiford had the gold watch that was obtained in the robbery and Rodgers had the marked $5.00 “bait bill.” None of the contraband was found on Hall’s person.

At approximately 1:30 P.M. the same day, Hall was appropriately told of his rights and was then interviewed. We quote the questions asked him by the police and his answers:

“Q. Whose idea was it to rob the Stop N Go?

A. I’m not sure.

Q. Why didn’t you go inside the grocery during the robbery?

A. Because I received a severe gunshot wound to the right chest about two years ago. As a result, I have a bullet in my spine, physically unable to over exert myself.

Q. If not for that injury, would you have went inside and participated in the robbery?

A. I don’t know.”

Hall argues that the State’s proof, at best, merely presented evidence that he was at the scene of the crime and that there was no evidence that he was an aider and abettor as defined by T.C.A. § 39-1-303; he insists that there was no evidence that he was “aiding and abetting, or ready and consenting to aid and abet” in the commission of the robbery. We agree with the State that the circumstantial evidence was sufficient to support the finding that Hall was an aider and abettor. He was apprehended in the getaway car immediately after the robbery and only 2 miles distant therefrom. He was in the company of Rodgers and Raiford, who had actually entered the store and committed the robbery. Stolen money was inside the car with Hall and his companions, along with the pistol used in the robbery and the clothing worn. We think that the evidence abundantly established that the defendant was in the automobile when the crime was committed. The answers given by Hall to the questions asked by police strongly indicate that Hall knew before going to the store with Raiford and Rodgers that the robbery was planned. We think that the facts of this case, where a defendant, knowing that a robbery was planned, voluntarily accompanied the perpetrators to the scene of the crime, and waited outside while the crime was being committed, support the finding that the defendant acted as a “lookout.”

This circumstantial evidence, not coupled with contradictory or explanatory proof, excludes every reasonable hypothesis other than that of guilt. See State v. Raymer, 623 S.W.2d 644 (Tenn.Cr.App.1981); Bays v. State, 529 S.W.2d 58 (Tenn.Cr.App.1975). We think that the trial judge properly overruled the motion for a judgment of acquittal. We also find that the evidence meets the standard required by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and T.R.A.P. 13(e).

The judgment below is affirmed.

DUNCAN, J., concurs. DAUGHTREY, J., dissents.