The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
SEPTEMBER SESSION, 1999
FILED
October 29, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, *
* No. 02C01-9901-CR-00030
Appellee, *
* SHELBY COUNTY
vs. *
* Hon. Arthur T. Bennett, Judge
CARLOS R. PORTO-SAES, *
* (Aggravated Robbery; 1 ct.;
Appellant. * Aggravated Assault, 2 cts)
For the Appellant: For the Appellee:
Kevin E. Childress Paul G. Summers
Attorney for Appellant Attorney General and Reporter
301 Washington Ave., Suite 201
Memphis, TN 38103 Patricia C. Kussmann
Assistant Attorney General
(ON APPEAL) Criminal Justice Division
425 Fifth Avenue North
2d Floor, Cordell Hull Building
Nashville, TN 37243-0493
Ms. Patricia Odell
Attorney at Law
50 North Front Street William L. Gibbons
Memphis, TN 38103 District Attorney General
(AT TRIAL) Glen C. Baity
Asst. District Attorney General
Criminal Justice Center - Third Floor
201 Poplar Avenue
Memphis, TN 38103
OPINION FILED:
AFFIRMED
David G. Hayes, Judge
OPINION
The appellant, Carlos R. Porto-Saes, was convicted by a Shelby County jury
of one count of aggravated robbery and two counts of aggravated assault.1 For
these convictions, he received sentences of ten years incarceration for aggravated
robbery and three years for each aggravated assault conviction. The sentences
were ordered to be served concurrently. In this appeal as of right, the appellant
presents only one issue for our review: “Whether the evidence is sufficient to
support his convictions for aggravated robbery and aggravated assault beyond a
reasonable doubt?”
After a review of the evidence, we affirm the appellant’s convictions.
Background
On February 21, 1997, at approximately 7:30 p.m., the Krystal Restaurant
located at 496 Watkins in Memphis was robbed by two men wearing masks. After
entering the restaurant, one of the masked robbers, later identified as the appellant,
entered the dining room area, brandishing a pistol and ordered the customers,
including Jesse Holt and Julian Williams, onto the floor. The appellant remained in
the dining area while the second robber, wearing a black and orange mask and
wielding an iron pipe, entered the drive-through window area. When the second
robber entered this area, he confronted Krystal employee, Mabline Thompson, who
was standing near the cash register and ordered, “Bitch, give me your money and
get down.” The robber then proceeded to grab money from the cash register and
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On July 10, 1997, a Shelby County Grand Jury indicted the appellant and his co-
defend ant, char ging them with one c ount of a ggrava ted robb ery of Ma bline Tho mps on. On
January 13, 1998, the Grand Jury returned additional indictments against the appellant, charging
him with tw o cou nts o f agg rava ted a ssa ult ag ains t Jes se H olt an d Julia n W illiam s res pec tively.
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put it in a pouch around his waist. He then ordered Ms. Thompson into the office
where he forced her to open the restaurant’s safe. As Ms. Thompson was being led
from the drive-through area to the office, she noticed another man in the dining
room wearing a blue mask and holding a pistol. After obtaining the money from the
safe, Ms. Thompson and another employee, Lenora Fletcher, were struck by the
robber with the iron pipe. During the robbery, Ms. Fletcher also observed a masked
individual standing in the dining area holding a nine millimeter pistol on the
customers.
Memphis Police Officer Craig Cook and his partner, Officer Michael
Richardson, were flagged down in their separate patrol cars at North Parkway and
Watkins and were advised that the nearby Krystal restaurant was being robbed.
Joined by Memphis Police Officer Fred Farah, Cook and Richardson responded to
the robbery call at the Krystal Restaurant. Upon arriving at the scene, Officer Farah
walked towards the counter while the other two officers proceeded toward the rear
of the store. Officer Farah noticed “everybody was on the ground.” He then “heard
shuffling in back of the counter. . . .” As he approached the counter, the robber
wearing the black and orange mask, later identified as co-defendant Alexi Oliveras,
“popped up from the counter.” Oliveras “had a pipe in his hand. . . .” Officer Farah
restrained Oliveras and placed him in custody.
Meanwhile, Officer Cook observed the appellant in the dining area
squatting down in the floor wearing a black ski mask, brown gloves,
and holding a pistol. When [the appellant] looked over and saw me
coming in the front door, he stuck the pistol down the back of his
pants, pulled off the black mask and his gloves, threw them behind
him. Then he sat down in a chair at a table, put his hands flat out on
the table. . . .
Officer Cook recovered the weapon, a nine millimeter, from the back waistband of
the appellant’s pants. At trial, Officer Cook made an in-court identification of the
appellant as the robber with the gun.
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Analysis
In his sole issue on appeal, the appellant contends that, when tested against
the reasonable doubt standard, the evidence is insufficient to support the
convictions returned by the jury. Specifically, the appellant contends that all of the
evidence against him is circumstantial and that no victim could identify him as the
perpetrator prior to his being placed in police custody. Moreover, the appellant
asserts that the testimony of Officer Cook, the sole witness who could identify the
appellant as the perpetrator wielding the pistol, is inherently untrustworthy. In
support of this allegation, he asserts that, if the suspect was squatting down behind
a three foot partition as Officer Cook testified, Cook would not have been able to
clearly identify who had the mask and gun. Accordingly, he argues that the physical
obstructions to Officer Cook’s identification of the appellant make the identification
inherently suspect.
Although a defendant is initially cloaked with the presumption of innocence,
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982), a jury conviction removes this
presumption of innocence and replaces it with one of guilt, so that on appeal a
convicted defendant has the burden of demonstrating that the evidence is
insufficient. Id. In determining the sufficiency of the evidence, this court does not
reweigh or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.
1978). On appeal, the State is entitled to the strongest legitimate view of the
evidence and all legitimate or reasonable inferences which may be drawn therefrom.
State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). It is the appellate court's duty to
affirm the conviction if the evidence viewed under these standards was sufficient for
any rational trier of fact to have found the essential elements of the offense beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 2789
(1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); Tenn. R. App. P. 13(e).
This rule is applicable to findings of guilt predicated upon direct evidence,
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circumstantial evidence, or a combination of both direct and circumstantial evidence.
State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
Initially, we agree with the State’s position that the present case does not rely
solely upon circumstantial evidence to support the convictions. Indeed, Officer
Cook’s testimony that he observed the appellant with the mask and the weapon is
direct evidence of the appellant’s involvement in the present offenses. Accordingly,
this argument is without merit.
Finally, the appellant attacks the reliability of Officer Cook’s identification of
the appellant. The thrust of the appellant’s argument focuses upon the “proverbially
untrustworthy” identification of strangers. See United States v. Wade, 388 U.S.
218, 87 S.Ct. 1926 (1967). Our supreme court specifically addressed these
concerns in State v. Dyle, 899 S.W.2d 607, 609 (Tenn. 1995). The court
acknowledged that the “accuracy of eyewitness testimony is affected by the usual
universal fallibilities of human sense perception and memory.” Dyle, 899 S.W.2d at
612. “This phenomenon, which could obviously affect other forms of evidence also,
is potentialized by the fact that this testimony is prone to many outside influences
(police interrogations, lineups, etc.) and is often decisive.” Id. (citation omitted).
Thus, to account for these prejudicial influences on an eyewitness identification, the
court promulgated a pattern jury instruction on identity instructing the jury to
consider several factors before assessing the weight to be given to a witness’s
identification of a defendant. See Dyle, 899 S.W.2d at 612 (factors to be
considered include: witness’s capacity and opportunity to observe the offender; the
degree of certainty expressed by the witness regarding the identification; the
occasions on which the witness failed to make an identification of the witness; and
the occasions on which the witness made an identification that was consistent with
the identification at trial). The Dyle instruction was provided in the present case.
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Officer Cook had a reasonable opportunity to identify the appellant as the
perpetrator when he entered the dining area of the restaurant. Officer Cook
discovered a pistol in the appellant’s pants, a ski mask, and a pair of gloves in the
appellant’s possession upon approaching him at the restaurant table. Officer Cook
never hesitated in his identification of the appellant and at no point did Officer Cook
misidentify or fail to identify the appellant as the perpetrator. The credible
testimony of one identification witness is sufficient to support a conviction if the
witnesses viewed the accused under such circumstances as would permit a positive
identification to be made. See State v. Strickland, 885 S.W.2d 85, 87-88 (Tenn.
Crim. App. 1993). Moreover, it was within the prerogative of the jury to assess the
credibility of Officer Cook. See State v. Adkins, 786 S.W.2d 642, 646 (Tenn.1990);
State v. Burlison, 868 S.W.2d 713, 718-19 (Tenn.Crim.App.1993); Matthews, 805
S.W.2d at 779.
Viewing the evidence in a light most favorable to the State, we conclude that
the evidence is more than sufficient to support the appellant’s convictions. Tenn. R.
App. P. 13(e). The proof is undisputed that the appellant, through the use of a
deadly weapon, ordered Jesse Holt and Julian Williams onto the floor while his co-
defendant, armed with a weapon, forcibly obtained from Mabline Thompson a sum
of money being the contents of both a cash register and the store safe. See Tenn.
Code Ann. § 39-13-402 (a)(1) (1997); Tenn. Code Ann. § 39-11-402(2) (1997);
Tenn. Code Ann. § 39-13-102(a)(1)(B) (1997). This issue is without merit.
Accordingly, the judgments of conviction entered by the trial court are
affirmed.
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____________________________________
DAVID G. HAYES, Judge
CONCUR:
____________________________________________
JOE G. RILEY, Judge
____________________________________________
THOMAS T. W OODALL, Judge
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