08/20/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs August 7, 2018

                 STATE OF TENNESSEE v. JERMEL BROWN

                 Appeal from the Criminal Court for Shelby County
                      No. 14-06405       Chris Craft, Judge
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                           No. W2017-01681-CCA-R3-CD
                       ___________________________________


Defendant, Jermel Brown, appeals his Shelby County Criminal Court convictions for
aggravated robbery, criminal attempt to commit aggravated robbery, and aggravated
assault, for which he received a total effective sentence of twenty-six years’
incarceration. Defendant challenges the sufficiency of the evidence to support his
convictions, arguing that the State failed to adequately prove his identity as a perpetrator
of the offenses. Following a thorough review, we affirm the judgments of the trial court.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and ROBERT W. WEDEMEYER, JJ., joined.

Stephen Bush, District Public Defender; Michael J. Johnson, Assistant District Public
Defender, Memphis, Tennessee, for the appellant, Jermel Brown.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Melanie Cox,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                        OPINION

                                 I. Factual Background

       In December 2014, the Shelby County Grand Jury indicted Defendant and a co-
defendant, Earl Davis (“Mr. Davis”), for aggravated robbery, criminal attempt to commit
aggravated robbery, and aggravated assault. Defendant and Mr. Davis were tried jointly
in April 2017. At trial, Frank Steele testified that, on the evening of January 3, 2014, he
and a friend, Antwan Allen, were at Mr. Allen’s sister’s residence on Chattering Lane
(“the Chattering Lane residence”) when Mr. Allen received a telephone call. After the
telephone call, Mr. Steele and Mr. Allen went to a residence on Mountain Terrace (“the
Mountain Terrace residence”) around 10:30 or 11:00 p.m. Mr. Steele recalled that there
were five or six adults and several children at the Mountain Terrace residence. Mr.
Steele met a man referred to as “J-Rock,” whom Mr. Steele identified at trial as
Defendant. Mr. Davis was also at the residence. Mr. Steele testified that he and Mr.
Allen played cards and shot dice for money with Defendant and Defendant’s sister. After
thirty or forty minutes, Mr. Allen and Mr. Davis left the residence to pick up Mr. Davis’s
girlfriend, but Mr. Steele continued playing cards.

       Mr. Allen and Mr. Davis returned after about an hour. Eventually, Mr. Steele and
Mr. Allen decided to leave the Mountain Terrace residence, and Defendant walked out
the front door with them. Mr. Steele testified that, as they were leaving, Mr. Davis
climbed out a window and pointed a gun at them. At the same time, Defendant put a gun
behind Mr. Steele’s head and asked, “[D]o you know what time it is?” Mr. Steele asked
what Defendant meant, and Defendant fired a round from his gun into the ground. Mr.
Steele then understood that he and Mr. Allen were being robbed. Mr. Allen ran from the
scene, and then Mr. Steele heard several more gunshots. Mr. Steele raised his hands and
told Defendant to “go ahead and take the money.” While Defendant was pointing the gun
to Mr. Steele’s head, Mr. Steele removed a cell phone, cigarettes, and between $700 and
$800 from his pockets and gave the items to Defendant. When Defendant told Mr. Steele
he could leave, Mr. Steele ran from the residence. He did not see Mr. Allen but
continued to run towards the Chattering Lane residence. After flagging down a police
officer, Mr. Steele returned to the Chattering Lane residence with the officer and found
Mr. Allen there with a gunshot wound to his hand. Additional officers then responded to
the Chattering Lane residence, along with an ambulance for Mr. Allen. Mr. Steele
recalled that he viewed a photographic display created by investigators later that
morning, and he identified both Defendant and Mr. Davis as the individuals who robbed
him and Mr. Allen. Mr. Steele testified that he had never met Defendant and Mr. Davis
before the night of the robbery.

       On cross-examination, Mr. Steele testified that he drank about ten beers from 5:00
p.m. until 11:00 p.m. on January 3. He stated that he stopped drinking when he arrived at
the Mountain Terrace residence and that he was there about six hours before the robbery
occurred. He stated that he and Mr. Allen left the residence between 4:30 and 5:00 a.m.
on January 4. When asked about the lighting in the area where the robbery occurred, Mr.
Steele testified that it was “day enough to see who robbed [him].”

       Antwan Allen testified that, on the evening of January 3, 2014, he picked up Mr.
Steele, and they went to the Chattering Lane residence. Between 11:00 p.m. and
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midnight, he and Mr. Steele went to the Mountain Terrace residence, where they played
cards and shot dice with Defendant and Mr. Davis. Mr. Allen explained that the only
people he knew at the Mountain Terrace residence were Mr. Davis and Defendant’s
sister. He stated that he had gone to school with Mr. Davis. Mr. Allen recalled that, at
one point that night, he and Mr. Davis went to an apartment complex to pick up Mr.
Davis’s girlfriend. They then returned to the Mountain Terrace residence. Mr. Allen
stated that he and Mr. Steele decided to leave the Mountain Terrace residence around
4:00 a.m. Mr. Allen recalled that Defendant followed him and Mr. Steele outside and
began talking with Mr. Steele. As they were talking, Defendant pointed a gun at Mr.
Steele and said, “You know what this is, man.” Defendant then ordered Mr. Steele to
“[g]ive [him] everything.” At the same time, Mr. Davis came out of the side of the house
and pointed a gun at Mr. Allen. Mr. Davis stated, “Y’all know what this is. Drop
everything off.” Mr. Allen realized that he was being robbed. Mr. Davis ordered him not
to move, but then a “[g]unshot went off.” Mr. Allen stated that he was unsure if
Defendant or Mr. Davis fired the shot, but he ran from the scene. Mr. Allen then heard
several additional gunshots. As Mr. Allen ran, he jumped several fences before he
realized that he had been shot in the hand. He stopped at another home on Mountain
Terrace and knocked on the door. Because the resident of the home would not open the
door, he ran back to the Chattering Lane residence, which was about five minutes away.
Mr. Allen recalled that police officers arrived moments later, and he was transported to
the hospital where he was treated for the gunshot wound to his hand. The State
introduced medical records from the hospital and photographs of Mr. Allen’s injury, and
he testified that he still had scars on his hand from the wound. Later, officers came to
Mr. Allen’s residence with photographic displays and asked if he could identity the
perpetrators of the robbery. He identified both Defendant and Mr. Davis and stated that
Mr. Davis was the individual who shot him.

        On cross-examination, Mr. Allen agreed that he drank two beers before going to
the Mountain Terrace residence to play cards and that, while playing cards and shooting
dice, he drank liquor, but he stated that he could not recall how many drinks he had that
night. Mr. Allen explained that he and Mr. Steele left the Mountain Terrace residence
around 3:00 a.m. to pick up more beer and to meet Mr. Allen’s cousin in Tipton County,
but they returned to the Mountain Terrace residence around 3:50 a.m. About twenty-five
minutes later, Mr. Allen and Mr. Steele decided to leave. Mr. Allen agreed that he had
one more beer after returning to play cards. Mr. Allen denied that he was “drunk” and
stated that he was able to drive that night.

       Officer David Hallum of the Memphis Police Department testified that he
responded to a shooting call on January 4, 2014, at a neighboring residence on Mountain
Terrace. When he arrived, the homeowner told him that “someone ran up to the door,
beating on the door saying they were shot, and then they ran off.” Officer Hallum then
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learned that two other police officers had been flagged down, and they were requesting
that an ambulance respond to the Chattering Lane residence. Officer Hallum went to the
Chattering Lane residence and spoke to Mr. Steele and Mr. Allen, who provided Officer
Hallum with a description of both suspects. Officer Hallum then went to the Mountain
Terrace residence but did not see anyone there matching the suspects’ descriptions.
However, in the front yard of the Mountain Terrace residence, Officer Hallum saw a
package of cigarettes and a spent shell casing. He then called for a crime scene
investigator to collect evidence.

       Sergeant Jason Parish of the Memphis Police Department testified that he worked
as a crime scene investigator in January 2014. On the morning of January 4, he
responded to the Mountain Terrace residence. After photographing the scene, he
collected the shell casing and cigarette package found in the front yard. He also collected
a second shell casing by the front porch. Sergeant Parish testified that the spent shell
casings were from different guns; the shell casing by the front porch was a .380 caliber,
and the shell casing beside the cigarette package was a .25 caliber.

       Mr. Earl Davis testified that he was at the Mountain Terrace residence on the
evening of January 3, 2014, with his brother Chris Davis and his brother’s girlfriend. Mr.
Davis stated that Defendant, Defendant’s sister, and another man named Ted were also
there that night. He stated that Defendant and Defendant’s sister played cards with Mr.
Steele and Mr. Allen. Mr. Davis stated that he was there when Mr. Allen and Mr. Steele
arrived, but he denied that he went anywhere with Mr. Allen later that evening. Mr.
Davis claimed that he left the gathering around 10:30 p.m. when his girlfriend picked him
up and took him home. He denied ever returning to the Mountain Terrace residence and
denied participating in the robbery of Mr. Allen and Mr. Steele. He agreed that he
previously went to school with Mr. Allen but stated that they were not really friends.

       Following deliberations, the jury found Defendant guilty as charged.1 For these
offenses, the trial court sentenced Defendant, as a Range II multiple offender, to eighteen
years for aggravated robbery; eight years for criminal attempt to commit aggravated
robbery; and eight years for aggravated assault. The trial court ordered Defendant’s
eight-year sentences to run concurrently with one another but consecutively to
Defendant’s eighteen-year sentence, for a total effective sentence of twenty-six years’
incarceration.

        Thereafter, Defendant filed a timely motion for new trial, which was denied by the
trial court after a hearing. This timely appeal follows.

       1
         Mr. Davis was convicted of aggravated robbery, attempted aggravated robbery, and attempted
aggravated assault.
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                                        II. Analysis

       On appeal, Defendant contends that the evidence is insufficient for a rational trier
of fact to find him guilty beyond a reasonable doubt of aggravated robbery, attempted
aggravated robbery, and aggravated assault. Defendant argues that the victims were not
able to “properly perceive events” and identify him as the perpetrator because they were
both “severely impaired” based on the amount of alcohol they consumed that night and
because it was “very dark” in the area where the offenses occurred. The State responds
that the evidence is sufficient to support Defendant’s convictions. We agree with the
State.

        Our standard of review for a sufficiency of the evidence challenge 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) (emphasis in original); see also Tenn. R.
App. P. 13(e). Questions of fact, the credibility of witnesses, and weight of the evidence
are resolved by the fact finder. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This
court will not reweigh the evidence. Id. Our standard of review “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)) (internal quotation marks omitted).

       A guilty verdict removes the presumption of innocence, replacing it with a
presumption of guilt. Bland, 958 S.W.2d at 659; State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The defendant bears the burden of proving why the evidence was
insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle, 639 S.W.2d at
914. On appeal, the “State must be afforded the strongest legitimate view of the evidence
and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221
S.W.3d 514, 521 (Tenn. 2007).

       The identity of the perpetrator is an essential element of any crime and may be
proven by circumstantial evidence alone. State v. Rice, 184 S.W.3d 646, 662 (Tenn.
2006) (citing State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002) and State v. Thompson, 519
S.W.2d 789, 793 (Tenn. 1975)). The weight to be given to circumstantial evidence, the
inferences to be drawn from such evidence, and “the extent to which the circumstances
are consistent with guilt and inconsistent with innocence” are questions for the jury. Id.
(quoting Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958)).

      As relevant here, aggravated robbery is robbery that was “[a]ccomplished 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[.]” Tenn. Code Ann. § 39-13-402(a)(1)
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(2014). “Robbery is 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)
(2014). “A person commits theft of property if, with intent to deprive the owner of
property, the person knowingly obtains or exercises control over the property without the
owner’s effective consent.” Tenn. Code Ann. § 39-14-103(a) (2014).

       As instructed by the trial court, for the jury to convict Defendant of criminal
attempt to commit aggravated robbery, the State must have proven beyond a reasonable
doubt the existence of the following essential elements:

       One, that the defendant intended to commit the specific offense of
       aggravated robbery; and two, that the defendant did some act intending to
       complete a course of action or cause a result that would constitute
       aggravated robbery under the circumstances as the defendant believed them
       to be at the time and his actions constituted a substantial step toward the
       commission of aggravated robbery.

See Tenn. Code Ann. § 39-12-101(a)(3) (2014); 7 Tenn. Prac. Pattern Jury Instr. T.P.I.—
Crim. 4.01.

       As it pertains to Defendant’s case, “[a] person commits aggravated assault who[]
[i]ntentionally or knowingly commits an assault as defined in § 39-13-101, and the
assault . . . [i]nvolved the use or display of a deadly weapon[.]” Tenn. Code Ann. § 39-
13-102(a)(1)(A)(iii) (2014). A person commits assault by “[i]ntentionally, knowingly or
recklessly caus[ing] bodily injury to another[.]” Tenn. Code Ann. § 39-13-101(a)(1)
(2014).

       “A person is criminally responsible as a party to an offense, if the offense is
committed by the person’s own conduct, by the conduct of another for which the person
is criminally responsible, or by both.” Tenn. Code Ann. § 39-11-401(a) (2014). As
pertinent here, a person is criminally responsible for the conduct of another when,
“[a]cting with intent to promote or assist the commission of the offense, or to benefit in
the proceeds or results of the offense, the person solicits, directs, aids, or attempts to aid
another person to commit the offense[.]” Tenn. Code Ann. § 39-11-402(2) (2014).
Criminal responsibility is not a separate crime but instead a theory by which the State
may prove the defendant’s guilt based upon another person’s conduct. State v. Osborne,
251 S.W.3d 1, 16 (Tenn. Crim. App. 2007) (citing State v. Mickens, 123 S.W.3d 355,
389-90 (Tenn. Crim. App. 2003)).




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                                   Aggravated Robbery

        When viewed in the light most favorable to the State, the evidence is sufficient for
any rational trier of fact to find Defendant guilty of aggravated robbery of Frank Steele
beyond a reasonable doubt, as charged in Count 1 of the indictment. Mr. Steele testified
that, as he was leaving the Mountain Terrace residence, Defendant followed him out the
front door. Defendant pulled out a gun and pointed it at Mr. Steele’s head. When Mr.
Steele did not understand that Defendant was robbing him, Defendant fired a round from
his gun into the ground. Mr. Steele then put his hands up and told Defendant to take his
money. While Defendant was pointing the gun to Mr. Steele’s head, Mr. Steele removed
a cell phone, cigarettes, and between $700 and $800 from his pockets and gave the items
to Defendant.

       Both Mr. Steele and Mr. Allen identified Defendant at trial and in photographic
displays following the robbery. Defendant asserts that the victims’ testimony must be
called into question because it was dark outside, and they had been drinking. However,
Mr. Steele testified that it was not so dark that he could not identify Defendant as the
perpetrator, and he further stated that he stopped drinking when he arrived at the
Mountain Terrace residence around 10:30 or 11:00 p.m., several hours before the robbery
occurred. It was within the province of the jury to consider these factors when assigning
weight and credibility to the victims’ testimony. Bland, 958 S.W.2d at 659. Defendant’s
argument regarding the testimony of Mr. Steele and Mr. Allen is nothing more than a
request for this court to reweigh their testimony, which this court declines to do. The
victims’ testimony provided sufficient evidence for a reasonable juror to conclude that
Defendant was the individual who robbed Mr. Steele. Defendant is not entitled to relief.

       Criminal Attempt to Commit Aggravated Robbery and Aggravated Assault

       Likewise, the State presented evidence from which a rational trier of fact could
find that Mr. Davis committed attempted aggravated robbery and aggravated assault of
Mr. Allen and that Defendant was criminally responsible for Mr. Davis’s conduct. Mr.
Allen testified that, while Defendant was pointing his gun at Mr. Steele, Mr. Davis
pointed a gun at him and said, “Y’all know what this is. Drop everything off.” Mr. Allen
realized that he was being robbed. Mr. Davis ordered him not to move, but then a
“[g]unshot went off.” Mr. Allen stated that he was unsure if Defendant or Mr. Davis
fired the first shot, and he ran from the scene. From this testimony, the jury could
conclude that Mr. Davis intended to take property from Mr. Allen when he brandished a
gun and demanded that Mr. Allen “[d]rop everything off.” As Mr. Allen’s flight was all
that prevented the robbery from being completed, Mr. Davis’s actions constitute a
substantial step towards the completion of aggravated robbery. Thus, the jury had

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sufficient evidence to conclude that Mr. Davis attempted to commit an aggravated
robbery of Mr. Allen.

       Mr. Allen also testified that he heard several additional gunshots as he fled the
scene. After jumping several fences, he realized that he had been shot in the hand. Mr.
Allen was later transported to the hospital by ambulance. The State introduced Mr.
Allen’s hospital medical records into evidence, and Mr. Allen testified that scars
remained on his hand from the gunshot wound. When viewing a photographic display,
Mr. Allen identified Mr. Davis as the individual who shot him. From this testimony the
jury could reasonably conclude that Mr. Davis either intentionally, knowingly, or
recklessly fired his gun, a deadly weapon, thereby causing bodily injury to Mr. Allen.

       The evidence also establishes that Defendant was criminally responsible for Mr.
Davis’s actions. Mr. Steele testified that, while he was talking to Defendant, he noticed
Mr. Davis climb out of a window. Defendant pointed his gun at Mr. Steele and ordered
Mr. Steele to “[g]ive [him] everything[,]” while Mr. Davis pointed his gun at Mr. Allen.
Mr. Davis stated, “Y’all know what this is. Drop everything off.” From this testimony,
the jury could reasonably conclude that Defendant and Mr. Davis were working together
to rob the victims. Thus, the evidence was sufficient for the jury to convict Defendant of
criminal attempt to commit aggravated robbery and aggravated assault of Mr. Allen
under the theory of criminal responsibility. Defendant is not entitled to relief.

                                    III. Conclusion

      For the aforementioned reasons, the judgments of the criminal court are affirmed.


                                            ____________________________________
                                            ROBERT L. HOLLOWAY, JR., JUDGE




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