State of Tennessee v. Colico Walls

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs November 5, 2002

STATE OF TENNESSEE v. COLICO WALLS

Appeal from the Criminal Court for Shelby County

Nos. 99-11598, 99-11599 Chris Craft, Judge

No. W2002-00191-CCA-R3-CD - Filed March 18, 2003

The defendant, Colico Walls, was convicted of aggravated robbery and aggravated assault. The trial

court imposed a Range I sentence of 11 years for the aggravated robbery and a Range II sentence of

10 years for the aggravated assault. The sentences were ordered to be served consecutively. In this

appeal of right, the defendant challenges the sufficiency of the evidence. The judgment is affirmed

as to the aggravated robbery. The aggravated assault is modified to simple assault, a Class A

misdemeanor, having an 11-month, 29-day sentence. The sentences, as modified, shall be served

consecutively.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed in Part; Modified in Part

GARY R. WADE, P.J., delivered the opinion of the court, in which NORMA MCGEE OGLE and ROBERT

W. WEDEMEYER , JJ., joined.

A.C. Wharton, Jr., District Public Defender (of counsel on appeal); and W. Mark Ward (on appeal),

Brent Walker (at trial), and Michael Johnson (at trial), Assistant District Public Defenders, for the

appellant, Colico Walls.

Paul G. Summers, Attorney General & Reporter; Thomas E. Williams III, Assistant Attorney

General; and Steve Jones, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

At about 2:00 P.M. on November 13, 1998, Shirley Harmon, an employee at U-Haul

International in Memphis whose duties included the collection of rental for trucks, offered to assist

the defendant, who had entered the business premises through an employee entrance. According to

Harmon, the defendant used the water fountain and then the restroom. Because the defendant acted

suspiciously, Ms. Harmon notified David Noel, a U-Haul customer representative, of his presence.

When the defendant returned to the store area from the restroom, he asked Noel for an application

for employment and left. Later in the evening, after dark, the defendant re-entered the showroom

area of the store. When Ms. Harmon asked if she could offer assistance, the defendant, who "had

something that looked like a gun," grabbed Ms. Harmon, pulled her behind the counter, and

demanded "all the money, [b]itch," from the cash register and the safe. Ms. Harmon used her code

to open the cash register drawer, which contained approximately $1,000.00, and handed him the

contents. When the defendant again demanded the money from the safe, Ms. Harmon explained that

it contained no money. After Ms. Harmon called for help from "David," the defendant reacted

angrily and ultimately ordered her "to get down and to stay down" behind the counter. Ms. Harmon

crawled to the stock room and, about five minutes later, called 911 from a cordless phone.

At trial, Ms. Harmon acknowledged that she was not certain that the defendant had a gun,

explaining that it "look[ed] a little bit big for a gun." She stated that she had merely assumed the

defendant had a weapon because he had threatened "to blow my head off and all this stuff." She

recalled that the defendant also took her wallet, which contained her checkbook, some credit cards,

her identification, and about $60.00 in cash.

Noel testified that he saw the robbery. After identifying the defendant as the person who had

entered the store area earlier in the day, Noel recalled that shortly after dark, he responded when Ms.

Harmon "starting screaming [his] name." Noel testified that when he looked around the corner, he

saw the defendant holding an object near Ms. Harmon's head threatening to "blow [her] brains out"

and demanding money. According to Noel, who was the listed victim in the count of the indictment

charging aggravated assault, the defendant shouted, "David, bring your ass out, I've got something

for you." Noel stated that the defendant never saw him standing behind the corner. Rather than

confronting the defendant, Noel chose to contact the police. At trial, Noel described himself as

feeling threatened and scared by the defendant's threat.

Officer Jeffrey Polk, an investigator with the robbery bureau of the Memphis Police

Department, developed two photographic lineups for Ms. Harmon, each containing the photographs

of five individuals. He testified that Ms. Harmon selected a photograph of the defendant from the

second spread, tentatively identifying him as the perpetrator. Noel also selected the defendant from

a photographic display.

The defendant was convicted of the aggravated robbery of Ms. Harmon and the aggravated

assault of Mr. Noel. While acknowledging the limited scope of review afforded appellate courts,

the defendant nevertheless argues that the evidence of identification was insufficient to support either

conviction. He asserts that he is six feet, two inches in height, not approximately five feet, five

inches as described by Ms. Harmon or approximately five feet, eight inches, as described by Noel.

The defendant also argues as to the assault, that the evidence was insufficient to establish that the

defendant had either displayed or used a deadly weapon or that the state had sufficiently established

that Noel had actually been assaulted.

On appeal, of course, the state is entitled to the strongest legitimate view of the evidence and

all reasonable inferences which might be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835

(Tenn. 1978). The credibility of the witnesses, the weight to be given their testimony, and the

reconciliation of conflicts in the proof are matters entrusted to the jury as the trier of fact. Byrge v.

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State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the evidence is

challenged, the relevant question is whether, after reviewing 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. Tenn. R. App. P. 13(e); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983).

Questions concerning the credibility of the witnesses, the weight and value of the evidence, as well

as all factual issues raised by the evidence are resolved by the trier of fact. Liakas v. State, 199 Tenn.

298, 286 S.W.2d 856, 859 (1956). Because a verdict of 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.

Evans, 838 S.W.2d 185, 191 (Tenn. 1992).

A criminal offense may be established exclusively by circumstantial evidence. Marable v.

State, 203 Tenn. 440, 313 S.W.2d 451, 456-58 (1958); Duchac v. State, 505 S.W.2d 237, 241 (Tenn.

1973); State v. Hailey, 658 S.W.2d 547, 552 (1983). The facts and circumstances must "be so strong

and cogent as to exclude every other reasonable hypothesis save the guilt of the defendant." State

v. Crawford, 225 Tenn. 478, 470 S.W.2d 610, 612 (1971). The weight of the circumstantial

evidence is for the jury to determine. Williams v. State, 520 S.W.2d 371, 374 (Tenn. Crim. App.

1974) (citing Patterson v. State, 4 Tenn. Crim. App. 657, 475 S.W.2d 201 (1971)). The same

standard of review for sufficiency claims is applicable to guilt based upon direct as well as

circumstantial evidence. Farmer v. State, 208 Tenn. 75, 343 S.W.2d 895, 897 (1971); State v.

Brown, 551 S.W.2d 329, 331 (Tenn. 1977). The court may not substitute its inferences for those

drawn by the trier of fact in circumstantial evidence cases. Liakas, 199 Tenn. 298, 286 S.W.2d at

859; Farmer v. State, 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978).

Both victims made positive in-court identifications of the defendant. Noel made a positive

identification from the photographic spread and Ms. Harmon made a tentative identification. Each

had seen the defendant enter the store earlier in the afternoon before the robbery and had an

opportunity to converse with him. That there was a disparity between the estimates made by the

victims and the actual height of the defendant would not be a basis for reversal on the issue of

identification. It was within the province of the jury to resolve such conflicts of testimony in favor

of the state. See State v. Hatchett, 560 S.W.2d 627, 630 (Tenn. 1978). 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). A robbery becomes aggravated either when the victim is seriously

injured or when the defendant "display[s] . . . any article used . . . to lead the victim to reasonably

believe it to be a deadly weapon." Tenn. Code Ann. § 39-13-402(a); see Peabody v. State, 556

S.W.2d 547 (Tenn. Crim. App. 1977). In our view, the evidence of the defendant's guilt was

sufficient for the aggravated robbery conviction.

The defendant also argues that the state failed to establish that he actually used a deadly

weapon, as opposed to something else, for the purposes of elevating the assault to an aggravated

assault. An assault occurs where, among other things, a person "[i]ntentionally or knowingly causes

another to reasonably fear imminent bodily injury." Tenn. Code Ann. § 39-13-101(a). An assault

becomes aggravated when the victim is seriously injured or when the defendant "[u]ses or displays

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a deadly weapon." Tenn. Code Ann. § 39-13-102(a)(1)(A)-(B). Unlike aggravated robbery, the

weapon utilized in an assault must actually be classified as a deadly weapon for the offense to

become aggravated. Tennessee Code Annotated section 39-11-106 defines "deadly weapon" as "[a]

firearm or anything manifestly designed, made or adapted for the purpose of inflicting death or

serious bodily injury; or . . . [a]nything that in the manner of its use or intended use is capable of

causing death or bodily injury." Tenn. Code Ann. § 39-11-106(a)(5)(A), (B). Among those items

that may, in certain circumstances, be considered "deadly" are hard plastic pens, automobiles, and

duct-tape and coat-hanger fortified extension cords. State v. Eaves, 959 S.W.2d 601, 604 (Tenn.

Crim. App. 1997); State v. Tate, 912 S.W.2d 785, 788 (Tenn. Crim. App. 1995); State v. Tolliver,

No. E2001-00584-CCA-R3-CD (Tenn. Crim. App., at Knoxville, Dec. 18, 2001) perm. app. granted

(Tenn., Aug. 5, 2002). Neither fists nor feet qualify as deadly weapons, see State v. Fleming, 19

S.W.3d 195 (Tenn. 2000), but pointed-toe cowboy boots do, see State v. Daryl Lee Madden and

Marty Dale Williams, No. M2000-02227-CCA-R3-CD (Tenn. Crim. App., at Nashville, July 19,

2002), for publication.

Neither Ms. Harmon nor Noel could state with certainty that the defendant possessed a gun.

As the state argues, however, there was circumstantial evidence that suggested that he was armed

with a weapon. As indicated, circumstantial evidence alone may be sufficient. That the defendant

threatened to "blow [the] head off" Ms. Harmon in combination with her belief and that of Noel that

the defendant might possibly be brandishing a gun, is persuasive. Yet Ms. Harmon testified that the

object used by the defendant was larger than a gun. When pressed, she conceded that she did not

believe it was a gun, but feared that whatever it was might cause her harm. She indicated that she

possibly saw a barrel but no gun. The object never made contact with her body. Noel described the

defendant as having "an object in his hand," something he could not otherwise identify. "I did not

really get to see what [it] was," he said. The investigation did not yield a weapon of any kind. Of

some significance is that the robbery was charged in two counts. The first charged aggravated

robbery by an object leading the victim to believe a deadly weapon was involved. The second count

alleged robbery with a deadly weapon. Although the offenses were merged into the greater of the

two verdicts, the jury found only simple robbery on the second count. Circumstantial evidence is

sufficient only if it proves each of the elements beyond a reasonable doubt. Here, the proof offered

by the state was not, in our view, legally sufficient to establish the use of a deadly weapon within the

meaning of our aggravated assault statute.

The defendant also argues that the evidence was insufficient to establish that Noel was a

victim of an assault. An assault is complete when one "intentionally or knowingly" causes another

to "reasonably fear imminent bodily injury." Tenn. Code Ann. § 39-13-101(a). While the defendant

argues that State v. Payne, 7 S.W.3d 25, 29 (Tenn. 1999), would preclude a conviction for

aggravated assault due to the failure to establish a fear of imminent bodily injury, this court

disagrees. The holding in Payne is distinguishable. Here, the victim Noel heard threats made

towards Ms. Harmon, saw what he believed to be a weapon, and backed away from the defendant's

invitation for him to intervene. The defendant uttered a threat and appeared to have an object

capable of backing it up. In consequence, Noel had a reasonable fear of imminent bodily injury. See

generally State v. Moore, 77 S.W.3d 132 (Tenn. 2002).

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Accordingly, the conviction for aggravated robbery is affirmed. The aggravated assault

conviction is modified to simple assault, a Class A misdemeanor. The 11-month, 29-day sentence

shall be served at 75% and shall be served consecutively to the sentence for aggravated robbery.

___________________________________

GARY R. WADE, PRESIDING JUDGE

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