State of Tennessee v. Kalvin Rush

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs August 1, 2006

STATE OF TENNESSEE v. KALVIN RUSH

Appeal from the Criminal Court for Shelby County

No. 04-03607 W. Otis Higgs, Judge

No. W2005-02809-CCA-R3-CD - Filed October 11, 2006

The Appellant, Kalvin Rush, was convicted by a Shelby County jury of aggravated robbery and

sentenced to eight years in the Department of Correction. On appeal, Rush raises the single issue

of sufficiency of the evidence. After review of the record, we find the evidence sufficient to support

the verdict and affirm the judgment of conviction.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J., and

ROBERT W. WEDEMEYER , J., joined.

Robert Felkner (at trial); and Garland Ergüden (on appeal), Assistant Public Defenders, Memphis,

Tennessee, for the Appellant, Kalvin Rush.

Paul G. Summers, Attorney General and Reporter; Brian Clay Johnson, Assistant Attorney General;

William L. Gibbons, District Attorney General; and Steve Crossnoe, Assistant District Attorney

General, for the Appellee, State of Tennessee.

OPINION

Factual Background

On January 21, 2004, around 11:30 a.m., the Appellant followed the victim, Dwayne

Washington, into the boarding house where Washington resided at 1005 Rayner Street in Memphis

and robbed him at gunpoint of approximately $2000 in cash. In the days prior to the robbery,

Washington had received a $2800 income tax refund check, $800 of which he used to purchase a car.

He kept the remaining money in his room at the boarding house. Washington, a cook at Jack Pirtles,

had bragged to others in the neighborhood about receiving the refund. On the day of the robbery,

Washington entered the boarding house, stopping to greet the resident manager, Karen Hudson, who

was in the kitchen cooking breakfast for her daughter and grandson. Although the victim was not

aware that the Appellant was behind him, Hudson saw the Appellant follow the victim into the room.

While in the kitchen, Hudson saw the Appellant point a pistol at the victim’s back and heard him

state “give me the money.”1 Fearing for her safety, Hudson retreated to her room, taking her

grandson with her, and locked the door.

Following the Appellant’s directives, the victim admitted the Appellant into his room and

showed him the money which was on top of the television. The Appellant proceeded to take the

money and left the premises, ordering the victim not to leave his room for thirty minutes. After

approximately ten to fifteen minutes, the victim left his room and went to Hudson’s room to inform

her that the Appellant had stolen his money. The robbery was then reported to the police.

Upon arriving, Officer Timeca Johnson of the Memphis Police Department spoke with both

the victim and Hudson, as well as a next door neighbor. The victim and Hudson provided Johnson

with a description of the Appellant, and Hudson informed the officer that the Appellant’s street name

was “Wayne” and that he lived on Roland Street. Johnson listed this information in her report which

was forwarded to the robbery division. Sergeant Davidson was assigned the case the following day.

After verifying the information contained in the initial police report from Hudson and the victim,

Davidson proceeded to Roland Street to question the Appellant. However, he learned that the

Appellant had moved to a duplex on Walker Street. Upon arriving at the duplex, Davidson knocked

on the door of the duplex located on the right. In response, the Appellant, partially clothed, emerged

from the duplex on the left. Davidson noted that the Appellant matched the description of the

robber, and the Appellant admitted that his street name was “Wayne.” At this point, the Appellant

was placed in custody; however, Davidson allowed him to reenter his duplex in order to dress. The

Appellant refused Davidson’s request to search the duplex stating he “didn’t want [him] to find

anything that might incriminate him.” The Appellant was then transported to jail on “a forty-eight

hour hold,”2 and Davidson secured the Appellant’s apartment prior to his departure, making sure that

all the doors and windows were locked.

The victim positively identified the Appellant as the perpetrator of the robbery in a police

photo lineup. At this point, Davidson obtained a search warrant for the Appellant’s duplex but, upon

his return to the address, found that the dwelling had been burglarized and “ransacked.” No money

or weapon was found during the search of the residence. However, a jacket matching the description

of the one worn by the robber was found in the duplex. After leaving the duplex, Davidson took the

1

The victim testified the Appellant told him, “Big Daddy, do not make no funny moves, show me where the

money is.”

2

W e know of no authority which would permit the police to book a person “into jail on a 48-hour hold,” or as

additionally referred to in the record as placing a person “on the hook,” without preferring any criminal charges in order

that the police could complete their investigation, as suggested by the testimony.

This Memphis Police Department practice has been routinely condemned as it constitutes an unlawful detention

and subjects any evidence obtained during this period of detention to suppression. See State v. Larico S. Ficklin, No.

W 2000-01534-CCA-R3-CD (Tenn. Crim. App. at Jackson, Aug. 27, 2001).

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photographic lineup photos and showed them to Hudson, who also identified the Appellant as the

perpetrator. At this point, the Appellant was arrested and charged with aggravated robbery.

On May 20, 2004, a Shelby County grand jury returned a one-count indictment against the

Appellant charging him with aggravated robbery. At trial, the Appellant chose not to testify and

presented no proof in his defense. At the conclusion of the proof, the Appellant was convicted as

indicted. Following an October 11, 2005 sentencing hearing, the trial court sentenced the Appellant

to serve eight years in the Department of Correction. The Appellant’s subsequent motion for new

trial was denied, with this appeal following.

Analysis

On appeal, the Appellant raises the single issue of sufficiency of the evidence, asserting that

“the State failed to carry its burden of proving that he is guilty beyond a reasonable doubt of the

crime charged, and that, when tested against the standard enunciated in Rule 13(e), Tennessee Rules

of Appellate Procedure, and Jackson v. Virginia, 443 U.S. 307 (1979), the evidence is insufficient

to support his conviction.” Specifically, he argues that his conviction “rest[s] solely upon the

identifications by Ms. Hudson and Dwayne Washington,” that “[a]lthough police found [the]

Appellant within hours of the alleged robbery, neither gun nor money was found in his possession,

and he was not wearing the clothing described by Washington” when police located him.

We apply the rule that where the sufficiency of the evidence is challenged, the relevant

question for the reviewing court is “whether, after viewing 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, 99 S. Ct. 2781, 2789 (1979); see also

Tenn. R. App. P. 13(e). The scope of our examination of the evidence is not equivalent to that of

the jury’s. In a challenge to the sufficiency of the evidence, this court does not retry the defendant.

We emphasize that our examination in a sufficiency review is not to revisit inconsistent,

contradicting, implausible, or non-credible proof, as these issues are resolved solely by the jury.

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Rather, we look to the record to determine

whether there was substantive probative evidence to support the verdict. The second inquiry, the

question of legal sufficiency, then follows: whether the record contain evidence from which the jury

could have found the essential elements of the crime beyond a reasonable doubt. Every reasonable

hypothesis of innocence need not be dispelled; it is only necessary that there exists proof which

supports the elements of the crime. The State is entitled to the strongest legitimate view of the

evidence and all reasonable inferences which may be drawn therefrom. State v. Harris, 839 S.W.2d

54, 75 (Tenn. 1992). All questions involving the credibility of witnesses, the weight and value to

be given to the evidence, and all factual issues are resolved by the trier of fact. State v. Pappas, 754

S.W.2d 620, 623 (Tenn. Crim. App. 1987). This court will not reweigh or reevaluate the evidence

presented. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

“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,

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493 S.W.2d 474, 476 (Tenn. 1973). 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). These rules are applicable to findings of guilt predicated upon direct

evidence, circumstantial evidence, or a combination of both. State v. Matthews, 805 S.W.2d 776,

779 (Tenn. Crim. App. 1990).

The Appellant, though admitting that there is proof in the record to support the conviction

for aggravated robbery, argues that said proof is not sufficient when properly viewed against the high

standard enunciated in Jackson v. Virginia. Robbery is defined as “the intentional or knowing theft

of property from the person of another by violence or putting the person in fear.” T.C.A. §

39-13-401(a) (2003). Pursuant to Tennessee Code Annotated section 39-13-402(a)(1) (2003),

aggravated robbery, as relevant in this case, is robbery “[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[.]” A deadly weapon is defined as “[a]nything that in the manner of its use or intended use

is capable of causing death or serious bodily injury.” T.C.A. § 39-11-106(a)(5)(B) (2003).

Essentially, the Appellant’s argument is based upon his contention that the State’s witnesses

were not credible. He asserts that Hudson’s testimony was “riddled with oddities and

inconsistencies” and that the victim admitted to lying on his tax return and to driving a car with no

license or insurance. This argument is misplaced as the credibility of witnesses and reconciliation

of conflicts in the testimony are matters “entrusted exclusively to the jury as the triers of facts.”

State v. Oody, 83 S.W.2d 554, 558 (Tenn. Crim. App. 1991). In this case, the inconsistencies of

Hudson’s testimony, as well as the victim’s misdeeds, were placed before the jury. The jury

obviously chose to accredit these two prosecution witnesses’ testimony as evidenced by their finding

of guilt. It is not within our province to reweigh or reevaluate the evidence presented. Cabbage, 571

S.W.2d at 835.

In the light most favorable to the State, the proof at trial overwhelmingly supports the jury’s

verdict. The evidence established that the Appellant entered the boarding house where the victim

resided and ordered the victim, at gunpoint, to give him money. After the victim informed the

Appellant where the proceeds of his income tax refund check were located, the Appellant took

approximately $2000 from the victim and fled. Both the victim and Karen Hudson positively

identified the Appellant, both in photographic lineups and at trial, as the perpetrator of the

aggravated robbery. See State v. Strickland, 885 S.W.2d 85, 87-88 (Tenn. Crim. App. 1993) (the

testimony of a victim is sufficient to support a conviction). Moreover, Karen Hudson identified the

robber by the street name “Wayne,” and the Appellant admitted his street name is “Wayne.”

Additionally, a jacket matching the description of the one worn by the perpetrator was found inside

the Appellant’s residence. Accordingly, we conclude that the evidence is more than sufficient to

support the Appellant’s conviction for aggravated robbery.

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CONCLUSION

Based upon the foregoing, the Appellant’s conviction for aggravated robbery is affirmed.

___________________________________

DAVID G. HAYES, JUDGE

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