State of Tennessee v. Johnny Wilkerson

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs September 7, 2016
STATE OF TENNESSEE v. JOHNNY WILKERSON
Appeal from the Criminal Court for Shelby County
No. 14-03148 W. Mark Ward, Judge
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No. W2016-00078-CCA-R3-CD - Filed November 7, 2016
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A Shelby County jury found the Defendant, Johnny Wilkerson, guilty of two counts of
aggravated robbery, and the trial court sentenced him to consecutive sentences of twenty
years for each conviction. On appeal, the Petitioner asserts that the evidence is
insufficient to support his convictions. After review, we affirm the trial court‟s
judgments.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and D. KELLY THOMAS, JR., JJ., joined.
Barry W. Kuhn (on appeal) and Amy G. Mayne (at trial), Memphis, Tennessee, for the
appellant, Johnny Wilkerson.
Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Amy P. Weirich, District Attorney General; and Ann L. Schiller, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
I. Facts
Margaret Robinson and Jason Eschhofen were robbed at gunpoint as they left Ms.
Robinson‟s apartment on January 24, 2014. For his role in the incident, a Shelby County
grand jury indicted the Defendant for two counts of aggravated robbery. At trial, the
parties presented the following evidence: Ms. Robinson testified that her apartment was
located near the University of Memphis campus in Memphis, Tennessee. In the early
evening hours of January 24, 2014, she and her boyfriend, Jason Eschhofen, were leaving
her apartment when an “average-sized African American man” approached them in a
“hurried fashion.” Ms. Robinson did not take much notice of the man until he pointed a
small black gun at the couple and ordered them to sit on the ground between two cars.
The man demanded Ms. Robinson‟s and Mr. Eschhofen‟s wallets and cell phones. The
couple complied with these demands, and the man threatened to kill them if they moved.
Ms. Robinson testified that, upon seeing the small black gun, she was “terrified”
that she was going to die and also going to watch Mr. Eschhofen be killed. She further
described the perpetrator as wearing a gray and white striped hoodie. After taking the
victims‟ wallets and cell phones, the man again threatened the couple saying, “[I]f you
move I will shoot you.” Ms. Robinson recalled being fearful that the perpetrator was
waiting nearby to shoot the couple once they got up from between the cars. Ms.
Robinson surveyed the ground underneath the nearby cars and, when she did not see
anyone, the couple got up quickly and ran to the apartment complex. One of Ms.
Robinson‟s neighbors was leaving at the time, and Mr. Eschhofen used the neighbor‟s
cell phone to notify police.
Ms. Robinson testified that she was “in shock” following the incident and felt
“very shaky.” She cried hysterically and contacted her mother to cancel her credit cards
while Mr. Eschhofen spoke with the police on the cell phone. Ms. Robinson said that she
had $10 in cash and credit cards in her wallet at the time it was stolen. The perpetrator
also took her blue Samsung phone, which police later returned to her in working
condition.
The night of the incident, Ms. Robinson provided police officers with a description
of the robber, and the following day, she viewed a photographic lineup at the police
station. Ms. Robinson was unable to identify the robber in the first lineup or a second
lineup shown to her several days later. On January 29, 2014, Ms. Robinson returned to
the police station to view a third photographic lineup and “pretty quickly” identified the
robber.
After Ms. Robinson identified the robber, a police officer returned her cell phone
and wallet to her. The wallet contained “the beginning of one of [her] credit cards” and
her driver‟s license. Several months later, Ms. Robinson testified at a preliminary
hearing in this case and, during the hearing, identified the Defendant as the robber. She
further identified the Defendant in court during the trial as the man who had taken her
wallet and cell phone on January 24, 2014.
On cross-examination, Ms. Robinson testified that, during the incident, the robber
wore the hoodie over his head covering his hair. She stated that she tried to look at his
face but was more focused on the gun he held. She estimated that the entire encounter
lasted about thirty seconds and said that it was nighttime. She described there being one
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light in the parking lot, and it was not near where she and Mr. Eschhofen were ordered to
sit between cars.
Jason Eschhofen‟s testifimony about the robbery was consistent with Ms.
Robinson‟s testimony. Mr. Eschhofen testified that he was “very scared” during the
encounter but compliant with the robber‟s demands due to concern for their safety. Mr.
Eschhofen gave the robber his cell phone and wallet that contained identification cards,
credit cards, and $40 to $50 in cash. Mr. Eschhofen confirmed that he spoke with the
police on the telephone about the robbery and provided their location. When the police
arrived, five to ten minutes later, Mr. Eschhofen provided a statement about the robbery
and a description of the robber. Mr. Eschhofen described the robber as a “lighter
skinned” African American wearing a hoodie with black horizontal stripes.
Mr. Eschhofen testified that he checked his bank records online in the hours
following the robbery and learned that one of his “cards” was used at a nearby gas station
within half an hour of the robbery. Mr. Eschhofen also viewed all three photographic
lineups and identified the robber in the third photographic lineup on January 29, 2014.
About the third photographic lineup, Mr. Eschhofen recalled that his identification was
“not immediate.” He said that he quickly narrowed it down to two individuals and then
asked a police officer for a larger photograph of “number one.” He said that he requested
the larger photograph to see the “structure directly relating to his shoulders . . . and neck .
. . to see it in context of more of the physical . . . size of him.” Upon viewing the larger
photograph, Mr. Eschhofen “immediately” recognized the photograph as the robber
because of the “size of his shoulders in relation to his head . . . his facial structure and the
way his jaw line and cheeks were shaped.”
Mr. Eschhofen testified that he never recovered his cell phone. He did, however,
recover his wallet with the cards inside but without the cash. Mr. Eschhofen also
identified the Defendant as the robber during the preliminary hearing for these charges
and at trial.
Douglas Gailey, a Memphis Police Department (“MPD”) officer, reported to the
robbery scene on January 24, 2014 between 9:00 and 10:00 p.m. He spoke with the
victims who stated that they were exiting an apartment and walking to a car when a black
male approached, pulled a pistol, and demanded their money and cell phones. The man
ordered the two victims onto the ground and then left. Officer Gailey described both
victims as nervous and Ms. Robinson as “real scared,” “shaking,” and “crying.” While at
the scene, Mr. Eschhofen advised Officer Gailey that his online bank records indicated
his bank card was used at the Shell Station located at Highland and Summer. Officers
were dispatched to the location, but no suspect was found.
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Jerry Capps, a MPD detective, testified that, after speaking with the victims, he
attempted to retrieve surveillance footage from the Shell gas station at Highland but
learned that the security system had been “down” so no footage could be obtained. He
also looked for security cameras in the area that might have recorded the suspect but was
unable to locate any surveillance footage. Next, Detective Capps contacted the victims
seeking to obtain information from the stolen phones. The victims provided several
phone numbers that Detective Capps researched and found two possible suspects. Based
upon these two potential suspects, Detective Capps created a photographic lineup. The
lineup was shown to both victims and neither identified the robber in the lineup.
Detective Capps testified that a University of Memphis police officer contacted
him and provided another phone number. The phone number was from Ms. Robinson‟s
cell phone records and indicated that her stolen cell phone had exchanged text messages
with the provided phone number. The phone number was associated with Tiffany Allen.
Police officers spoke with Ms. Allen at her residence, and she consented to a search of
the house. Inside the house, police officers found Ms. Robinson‟s cell phone. Ms. Allen
told the police officers that her boyfriend, Corey Durham, had been sending her text
messages from the cell phone. Mr. Durham was arrested for possession of stolen
property.
Detective Capps created another photographic lineup with a picture of Mr.
Durham and showed it to both victims. Neither victim identified Mr. Durham as the
robber. During an interview, Mr. Durham stated that he had bought Ms. Robinson‟s
phone from his friend, the Defendant, who lived across the street. A third photographic
lineup, which included a photograph of the Defendant, was created and shown to the
victims. Both victims identified the Defendant as the perpetrator of the January 24
offenses. The Defendant‟s roommate notified the police that he had located a gun.
Officers reported to the residence and found a small, black, toy pistol in the residence and
the victims‟ wallets inside a garbage can located on the curb in front of the residence.
On cross-examination, Detective Capps agreed that Corey Durham had a prior
aggravated robbery charge and also met the victims‟ description of the robber. He
confirmed that the victims did not identify Mr. Durham as the robber in the second
photographic lineup.
Shawn Hicks, a MPD sergeant, testified that he interviewed Corey Durham while
he was in custody as a suspect. Initially, Mr. Durham denied any knowledge of the
robbery, saying he bought the cellphone “off the street” for $10. Sergeant Hicks did not
believe Mr. Durham because Mr. Durham matched the description provided by the
victims of the robbery. Sergeant Hicks told Mr. Durham that he did not believe his story
and, after a few minutes, Mr. Durham “broke down and started crying.” Mr. Durham told
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Sergeant Hicks that he had bought the phone from his neighbor, the Defendant, who lived
across the street. Mr. Durham was released from custody and the following day, officers
were sent to locate the Defendant.
Sergeant Hicks testified that, while officers were searching for the Defendant, Mr.
Durham‟s girlfriend, Tiffany Allen, called the police station and stated that she had seen
the Defendant place some of the victims‟ property in his garbage can. Tiffany Allen was
present during Mr. Durham‟s arrest and aware of the police investigation. Sergeant
Hicks advised the officers looking for the Defendant of this additional information, and
the officers found the Defendant at his residence. The officers also found some of the
stolen items in the Defendant‟s garbage can outside his residence. Later, the victims
identified the recovered items as the stolen property.
Sergeant Hicks testified that he created a photographic lineup including a
photograph of the Defendant and showed it to the victims. Both of the victims identified
the Defendant as the perpetrator of the robbery. After the victims identified the
Defendant, Sergeant Hicks spoke with the Defendant, who denied any participation in the
robbery. The Defendant told Sergeant Hicks that Mr. Durham approached him about
possibly buying the phones. The Defendant said that as he looked at the phones, he saw
pictures of “white people,” realized the phones were stolen, and declined buying either
phone. Based upon the identifications and the recovery of the stolen items from the
Defendant‟s residence, the Defendant was arrested. Sergeant Hicks turned the Defendant
over to a transport officer who escorted the Defendant to jail. Shortly after the Defendant
and the officer left, Sergeant Hicks received a call from the transport officer, saying the
Defendant had asked to speak with Sergeant Hicks.
Sergeant Hicks testified that he met with the Defendant in the intake area of the
jail. The Defendant told Sergeant Hicks that he was with Mr. Durham during the
robbery, describing the location of the robbery. He explained that he waited in the car
while Mr. Durham “did the robbery” and then returned to the car with the stolen property.
The Defendant denied knowing that Mr. Durham was going to rob anyone but realized
what had occurred when Mr. Durham returned to the car with “some phones.” The
Defendant told Sergeant Hicks that, following the robbery, he tried to help Mr. Durham
sell the phones.
On cross-examination, Sergeant Hicks confirmed that Mr. Durham had a prior
conviction for carjacking. He further confirmed that the gun reported by the Defendant‟s
roommate was recovered from underneath the refrigerator in the Defendant‟s residence.
Corey Durham testified that he had a prior aggravated robbery conviction that he
had pleaded guilty to almost thirteen years before. He denied any involvement in the
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current robbery. He explained that he became involved in this case because he bought a
cell phone from the Defendant. Mr. Durham and the Defendant were neighbors, and the
Defendant had come by to buy marijuana. The Defendant showed Mr. Durham the
phones, and Mr. Durham could not afford the “black LG” so he purchased “the blue
phone” for $10.00. Mr. Durham said that he was aware the cell phones were stolen
because the Defendant stated that he had taken the phones from someone along with the
credit cards.
Mr. Durham testified that he first lied to the police because he did not want “to get
in trouble about the phone.” But eventually, Mr. Durham told the police that he had
purchased the phone from the Defendant, and he was released. Mr. Durham said that he
also told the police that, after he purchased the blue phone, the Defendant went to
“Head‟s house” to try and sell the black LG phone.
Tiffany Allen testified that in January 2014, she and Corey Durham lived together
with her daughter. She recalled a day when police came to the residence, and she gave
consent for the police officers to search the residence. The police found a cell phone, and
Ms. Allen advised the police that Mr. Durham had been using the cell phone. Ms. Allen
was taken into custody but released late that night. Several days later, a man who she
knew as “Yo,” came to her residence one morning and told her that he had seen the
Defendant throw “the stuff” in the trash. He suggested that Ms. Allen notify police, and
she did so. Within a short time after she called, she observed the police knocking on the
Defendant‟s door. Ms. Allen stated that she was not concerned that Mr. Durham would
be charged with the robbery because he had told her that he had bought the phone.
The State re-called Ms. Robinson and Mr. Eschhofen and both confirmed their
certainty about their identification of the Defendant as the perpetrator.
The Defendant testified that Mr. Durham and Ms. Allen were his neighbors and
that Mr. Durham would drive him to work. The Defendant denied involvement in the
January 24, 2014 robbery. According to the Defendant, one day he noticed that Mr.
Durham had a new phone and commented on it. Mr. Durham‟s previous phone had
broken, and he told the Defendant that he found the new phone at a gas station located on
Summer and Highland. The Defendant considered Mr. Durham a friend, so he warned
Durham that he “better hope, you know, no one reports the phone stolen, you know, or
lost or whatever.” Mr. Durham responded to the Defendant, saying he was not concerned
about that, and the Defendant “left it alone.”
The Defendant testified that several days later, he was standing in his driveway
when the police arrived at Mr. Durham‟s house, and the Defendant watched the police
take Mr. Durham away. Late that night, Mr. Durham came to the Defendant‟s house.
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The Defendant asked Mr. Durham what happened, and he said that the police arrested
him for having the phone but released him. Mr. Durham then asked the Defendant if he
knew where Mr. Durham might purchase some marijuana, and the Defendant told Mr.
Durham he did not. Mr. Durham left, and the following morning, the police arrived at the
Defendant‟s residence and arrested him. At the police station he was questioned, and he
denied placing the stolen items in the garbage can. The Defendant said that he had put
his garbage can out the night before. As to the plastic gun that the police officers found
in the Defendant‟s residence, the Defendant speculated that it might have belonged to his
son, who had recently visited.
The Defendant denied telling Sergeant Hicks anything other than that he was not
involved in a robbery. He maintained that Sergeant Hicks, Ms. Robinson, Mr.
Eschhofen, Mr. Durham, and Ms. Allen were all lying. The Defendant agreed that he had
been convicted of two drug-related offenses and a domestic battery offense.
Based upon this evidence, the jury convicted the Defendant of two counts of
aggravated robbery, and the trial court sentenced the Defendant to consecutive sentences
of twenty years for each conviction. It is from these judgments that the Defendant now
appeals.
II. Analysis
On appeal, the Defendant asserts that the evidence is insufficient to support his
convictions because the State failed to prove identity. The State responds that the State
produced sufficient evidence to prove that the Defendant committed theft of property
from Ms. Robinson and Mr. Eschoffen by placing them in fear with an item fashioned to
be a deadly weapon. We agree with the State.
We first acknowledge the State‟s argument that the Defendant failed to timely file
a notice of appeal and, therefore, we should dismiss the appeal. The Defendant concedes
that he failed to timely file his motion for new trial thereby causing his notice of appeal to
be delayed. He, however, asks that this Court to review this sufficiency challenge in the
interest of justice pursuant to Tennessee Rules of Appellate Procedure, Rule 13(b). In the
interest of justice, we choose to review the Defendant‟s assertion that the conviction
evidence was insufficient.
When an accused challenges the sufficiency of the evidence, this Court‟s standard
of review is whether, after considering the evidence in the light most favorable to the
State, “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 Tenn. R.
App. P. 13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid,
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91 S.W.3d 247, 276 (Tenn. 2002)). This standard applies to findings of guilt based upon
direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App.
1999) (citing State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)). In the
absence of direct evidence, a criminal offense may be established exclusively by
circumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). “The jury
decides the weight to be given to circumstantial evidence, and „[t]he inferences to be
drawn from such evidence, and the extent to which the circumstances are consistent with
guilt and inconsistent with innocence, are questions primarily for the jury.‟” State v.
Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting Marable v. State, 313 S.W.2d 451, 457
(Tenn. 1958)). “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)).
In determining the sufficiency of the evidence, this Court should not re-weigh or
reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.
1990). Nor may this Court substitute its inferences for those drawn by the trier of fact
from the evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999) (citing Liakas v.
State, 286 S.W.2d 856, 859 (Tenn. 1956)). “Questions concerning the credibility of
witnesses, the weight and value to be given the evidence, as well as all factual issues
raised by the evidence are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651,
659 (Tenn. 1997). “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. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978), superseded by statute
on other grounds as stated in State v. Barone, 852 S.W.2d 216, 218 (Tenn.1993))
(quotations omitted). The Tennessee Supreme Court 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.
Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d
523, 527 (Tenn. 1963)). This Court must afford the State of Tennessee the “„strongest
legitimate view of the evidence‟” contained in the record, as well as “„all reasonable and
legitimate inferences‟” that may be drawn from the evidence. Goodwin, 143 S.W.3d at
775 (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of
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guilt against a defendant removes the presumption of innocence and raises a presumption
of guilt, the convicted criminal defendant bears the burden of showing that the evidence
was legally insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516,
557-58 (Tenn. 2000) (citations omitted).
A conviction for aggravated robbery, as relevant to this case, requires proof
beyond a reasonable doubt that the Defendant committed an “intentional or knowing theft
of property from the person of another by violence or putting the person in fear” and that
the robbery was “accomplished with a deadly weapon or by display of any article used or
fashioned to lead the victim to reasonably believe it to be a deadly weapon.” T.C.A. §§
39-13-401(a), -402(a)(1) (2014).
The evidence, viewed in the light most favorable to the State, shows that the
Defendant approached the victims as they left Ms. Robinson‟s apartment on the night of
January 24, 2014. He ordered the victims to the ground at gunpoint and demanded they
give him their wallets and cell phones. After receiving the items, the Defendant
threatened to kill the victims if they moved, and he fled the scene. The Defendant then
attempted to sell both of the cell phones and to use Mr. Eschhofen‟s credit card before
disposing of the victims‟ property in his garbage can. Ms. Robinson‟s cell phone was
found in Mr. Durham‟s possession. Mr. Durham testified that he had purchased the
phone from the Defendant. A gun matching the description provided by the victims was
found under the refrigerator in the Defendant‟s residence, and the victims‟ personal items
were found discarded in the Defendant‟s trash can. Both victims viewed three separate
photographic lineups. Only the third photographic lineup contained a photograph of the
Defendant, and the victims identified the Defendant in the third photographic lineup as
the perpetrator. We conclude that this is sufficient evidence upon which a jury could
reasonably conclude that the Defendant committed these offenses.
As to the Defendant‟s argument concerning identity, we acknowledge that the
identity of a perpetrator is an essential element of any crime. State v. Thompson, 519
S.W.2d 789, 793 (Tenn. 1975). Issues regarding identity, however, are questions of fact
to be determined by the jury. State v. Vaughn, 29 S.W.3d 33, 40 (Tenn. Crim. App.
1998). Any conflicts in witness testimony regarding the identity of the accused and the
weight to be afforded the testimony are issues resolved by the jury. State v. Anderson,
880 S.W.2d 720, 726 (Tenn. Crim. App. 1994). By its verdict, the jury accredited the
victims‟ testimony and this Court does not second-guess the weight, value, or credibility
afforded to the evidence by the jury.
Accordingly, we conclude that the State presented sufficient evidence of identity
to support the Defendant‟s convictions. Therefore, the Defendant is not entitled to relief
on this issue.
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III. Conclusion
After a thorough review of the record and relevant authorities, we affirm the trial
court‟s judgments.
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ROBERT W. WEDEMEYER, JUDGE
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