State v. Devon Smith

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
SEPTEMBER 1997 SESSION
FILED
October 29, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
)
APPELLEE, )
) No. 02-C-01-9608-CC-00278
)
) Madison County
)
v. )
) Whit Lafon, Judge
)
) (Aggravated Robbery)
DEVON EUGENE SMITH, )
)
APPELLANT. )
FOR THE APPELLANT: FOR THE APPELLEE:
Thomas T. Woodall John Knox Walkup
Attorney at Law Attorney General & Reporter
P.O. Box 1075 500 Charlotte Avenue
Dickson, TN 37056-1075 Nashville, TN 37243-0497
(Appeal Only)
Janis L. Turner
George Morton Googe Assistant Attorney General
District Public Defender 450 James Robertson Parkway
227 Baltimore Street Nashville, TN 37243-0493
Jackson, TN 38301-6137
(Appeal Only) James G. Woodall
District Attorney General
Jeffrey J. Mueller P.O. Box 2825
Assistant Public Defender Jackson, TN 38302-2825
227 Baltimore Street
Jackson, TN 38301-6137 James W. Thompson
(Trial Only) Assistant District Attorney General
P.O. Box 2825
Jackson, TN 38302-2825
OPINION FILED:____________________________
AFFIRMED
Joe B. Jones, Presiding Judge
OPINION
The appellant, Devon Eugene Smith (defendant), was convicted of aggravated
robbery, a Class B felony, by a jury of his peers. The trial court found that the defendant
was a standard offender and imposed a Range I sentence consisting of confinement for
ten (10) years in the Department of Correction. The defendant presents two issues for
review. He contends the evidence is insufficient to support his conviction and the sentence
imposed by the trial court is excessive. After a thorough review of the record, the briefs
submitted by the parties, and the law governing the issues presented for review, it is the
opinion of this court that the judgment of the trial court should be affirmed.
On the afternoon of August 9, 1995, the defendant entered the Whitehall Foods
grocery. He was wearing a jacket, he had a cap on his head, he had the hood attached
to the jacket over the cap, and he was wearing either dark goggles or sunglasses. An
employee directed the assistant manager’s attention to the defendant. Both men thought
the defendant was dressed oddly for the month of August as it was hot outside. When the
assistant manager confronted the defendant, the defendant told him “[y]ou don’t have to
worry about anything. I’m not going to steal anything.”
As the assistant manager walked away, the defendant called to him. When the
assistant manager turned around to face the defendant, the defendant had a pistol in his
hand. He told the assistant manager to “[c]ome here.” He then told the assistant manager
to “go to the office. You’re going to give me all the money in the safe.” The assistant
manager went to the office, opened the safe, and gave all the money and food stamps to
the defendant. Together they approached a cashier. The defendant told the assistant
manager to “[p]ut some more money in there,” referring to a sack he was holding. The
assistant manager placed the contents of the register in the bag. The defendant then told
the assistant manager to walk toward the rear of the store. The defendant then exited the
store.
One cashier had seen the defendant in clubs, and the defendant, according to his
own admission, had been inside the store approximately five times. This cashier made an
identification of the defendant from a photographic spread. She also made a courtroom
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identification. The cashier testified the defendant’s nickname was “Milk.” The defendant
admitted this was his nickname. A second cashier made a courtroom identification of the
defendant.
Officers obtained a search warrant to search the defendant’s residence. The pistol
the defendant used in the robbery was seized and subsequently identified by two
employees of the grocery. Also seized were $225 in cash, $205 in food stamps, and bill
receipts totaling more than $300, which were paid the morning the house was searched.
Food stamps were taken during the robbery.
The defendant presented evidence that he had purchased food stamps from other
people including his aunt. He knew this was illegal and constituted a crime. The defendant
claimed he purchased the .38 automatic pistol when he was working for a security guard
service. He was interested in continuing his work with the guard service and possibly
pursuing a career in law enforcement. He also wanted the pistol to protect himself in the
neighborhood. There were several shootings, gang activity, and drug trafficking in the area
where he lived. The defendant testified he was employed on the date the robbery took
place. He also made money playing the keyboard in a band and serving as a disc jockey
in clubs.
According to the defendant, his car was inoperable on the date in question. His
girlfriend called her cousin to take them to a Kroger store to shop. He stated he wanted
to go to a store that closed at 4:30 p.m. Due to the length of time spent at Kroger, he knew
he was late and would not be able get to the store before it closed. He denied he robbed
the Whitehall Foods on the date in question.
I.
The defendant contends the evidence contained in the record is insufficient, as a
matter of law, to support his conviction for aggravated robbery. He argues the assistant
manager and the stock person could not identify the defendant as the perpetrator of the
robbery. One of the cashiers could not identify the defendant while viewing a photographic
spread. Furthermore, the food stamps were not marked with the store’s stamp.
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As can be seen from the foregoing statement of facts, the evidence is clearly
sufficient to support a finding by a rational trier of fact that the defendant was guilty of
aggravated robbery beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v.
Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The defendant intentionally
took the property of another and he accomplished this act by employing a deadly weapon,
a pistol. Tenn. Code Ann. §§ 39-13-401 and -402.
It must be remembered that this court does not reweigh or reevaluate the evidence
when determining the sufficiency of the evidence. State v. Matthews, 805 S.W.2d 776, 779
(Tenn. Crim. App.), per. app. denied, (Tenn. 1990). Furthermore, this court may not
substitute its inferences for those drawn by the trier of fact from circumstantial evidence.
State v. Liakas, 199 Tenn. 298, 305, 286 S.W.2d 856, 859, cert. denied, 352 U.S. 845, 77
S.Ct. 39,1 L.Ed.2d 49 (1956). To the contrary, this court is required to afford the State of
Tennessee the strongest legitimate view of the evidence contained in the record as well
as all reasonable inferences which may be drawn from the evidence. State v. Cabbage,
571 S.W.2d 832, 833 (1978).
Questions concerning the credibility of the 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, not this court. Cabbage, 571 S.W.2d at 835. In State v. Grace, 493 S.W.2d
474, 476 (Tenn. 1973), the supreme court said: “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.”
This issue is without merit.
II.
When an accused challenges the length of a sentence, it is the duty of this Court
to conduct a de novo review on the record with a presumption that "the determinations
made by the court from which the appeal is taken are correct." Tenn. Code Ann. § 40-35-
401(d)(1990). This presumption is "conditioned upon the affirmative showing in the record
that the trial court considered the sentencing principles and all relevant facts and
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circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The presumption
does not apply to the legal conclusions reached by the trial court in sentencing the accused
or the determinations made by the trial court which are predicated upon uncontroverted
facts. State v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App.), per. app. denied (Tenn.
1994). Also, the presumption does not apply when the trial court has failed to consider the
sentencing principles, the relevant facts, and the relevant circumstances. Ashby, 823
S.W.2d at 169.
In this case, the trial court stated: “Let the Defendant stand, please. Mr. Devon
Eugene Smith, it’s the judgment of the Court that you serve 10 years in the penitentiary
for armed robbery.” During the hearing on the motion for a new trial, the following
occurred:
MR. THOMPSON: Your Honor, the State filed enhancement
factors and argued them during the sentencing hearing. Your
Honor simply gave a sentence, but I submit Your Honor by
implication relied upon the enhancement factors as filed by the
State, and I would submit that we had enough enhancement
factors filed where Your Honor would have been justified in
giving him the maximum sentence. If Your Honor wants a
copy of that --
THE COURT: Let me see that to refresh the Court’s memory.
MR. THOMPSON: Your Honor will recall, there were several
people in the store, and he did have a gun.
THE COURT: All right. Let the record show that the Court
found the enhancement factors in this matter, one of which is,
the offense involved more than one victim; another instance in
that the Defendant possessed or employed a firearm or
dangerous weapon; and third, the Defendant had no risk about
committing a crime where the risk for human life was high.
Since the record does not establish the trial court followed the mandate set forth in Ashby,
this court must conduct a de novo review without a presumption that the findings of the trial
court were correct.
The defendant has a history of criminal convictions and criminal behavior. Tenn.
Code Ann. § 40-35-114(1). He has been convicted of driving while his license was
suspended, driving without a license, driving while under the influence, and violating the
open container law. His criminal behavior entails criminal impersonation, carrying a
concealed weapon, and driving while his license was revoked. The defendant forfeited his
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bond on the latter three offenses. He made a judicial admission he purchased food
stamps from the recipient of the stamps knowing each purchase was a crime.
The defendant did not hesitate about committing a crime where the risk to human
life was high. Tenn. Code Ann. § 40-35-114(10). As a general rule, this factor does not
apply in aggravated robbery cases. State v. King, 905 S.W.2d 207, 213 (Tenn. Crim. App.
1995). However, this court has recognized this factor may be applicable if someone other
than the victim is placed at risk. State v. Hicks, 868 S.W.2d 729, 732 (Tenn. Crim. App.
1993). In this case, several individuals were at risk. There were two cashiers who were
present inside the store during the course of the robbery. The assistant manager took
money from a cash register as one of the cashiers stood in the vicinity where the defendant
was brandishing his weapon. Given these circumstances, this enhancement factor may
be used to enhance the sentence within the appropriate range.
The use of the weapon was an element of the offense. Tenn. Code Ann. § 40-35-
114(9).
Both of these factors, factors (1) and (10), are entitled to great weight. There were
no mitigating factors supported by the evidence. Therefore, a sentence of ten (10) years
was warranted for the offense committed by the defendant.
This issue is without merit.
____________________________________________
JOE B. JONES, PRESIDING JUDGE
CONCUR:
______________________________________
DAVID H. WELLES, JUDGE
______________________________________
JOE G. RILEY, JUDGE
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