State v. Hayes

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

AUGUST SESSION, 1998

FILED

February 11, 1999

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9712-CR-00483

Cecil Crowson, Jr.

) Appellate C ourt Clerk

Appellee, )

)

) SHELBY COUNTY

VS. )

) HON. W. FRED AXLEY

CARLOS HAYES & ) JUDGE

REGINALD HAYES, )

)

Appellants. ) (Aggra vated R obbery; T heft;

) Facilitation)

ON APPEAL FROM THE JUDGMENT OF THE

CRIMINAL COURT OF SHELBY COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

A.C. WHARTON JOHN KNOX WALKUP

Public Defender Attorney General and Reporter

WA LKER GW INN PETER M. COUGHLAN

Assistant Public Defender Assistant Attorney General

201 Poplar Avenue 425 Fifth Avenu e North

Memphis, TN 38103 Nashville, TN 37243-0493

WIL LIAM W . NOW LIN

Court Appointed for R. Hayes WILLIAM GIBBONS

Suite 3201, 100 N. Main Bldg. District Attorney General

Memphis, TN 38103

JOHNNY McFARLAND

Assistant District Attorney General

Criminal Justice Complex, Suite 301

201 Poplar Street

Memphis, TN 38103

OPINION FILED ________________________

AFFIRMED IN PART; REVERSED IN PART

DAVID H. WELLES, JUDGE

OPINION

The Defenda nts, Carlos and Reginald H ayes, appea l their convictions

pursuant to Tennessee Rule of A ppellate P rocedu re 3(b). Follow ing a jo int trial,

a jury convicted Carlos Ha yes of aggrava ted robbery by use of a deadly weapon

in violation of Tennessee Code An notated § 39 -13-402 , and theft o f property

valued at $10,000 o r more but less than $60,000 in violation of § 39-14-103. The

jury convicted Reginald Hayes, brother of Carlos, of facilitation of robbery and

facilitation of theft of property valued at $10,000 o r more but less than $60,000,

both in viola tion of § 39 -11-403 .

According to the State’s proof at trial, Carlos and Reginald Hayes drove to

the Midway Fo rd car dealership in Shelby County. Carlos requested to test drive

a new vehicle on the sales lot; and during the drive, Carlos displayed a gun to the

salespers on, causing him to abandon the car. Police officers recovered the

vehicle appro ximate ly one h our late r in the p arking lot of a lo cal m iddle s choo l.

Both Defendants contest the sufficiency of the evidence, Carlos Hayes

additio nally contends that his convictions violate principles of doub le jeopardy,

and Regina ld Haye s argue s that his con viction fo r facilitatio n of rob bery is

inconsistent with the jury’s verdict of aggravated robbery for his brother. We find

that the jud gme nts of c onvictio n for the ft and fa cilitation of theft vio late

prohibitions against double jeopardy, and we therefore reverse these convictions.

We affirm the convictions for aggravated robbery and facilitatio n of robb ery.

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Midway Ford salesperson Debbie Mabry testified that she received a

telephone call from a man who identified himself as Carlos Hayes. Hayes asked

if the dealership c urrently had a blac k convertible Mu stang GT , and Mabry

responded that it did. Some time later the same afternoon, Mabry’s co-worker

Shane Johnson approached her desk and told her tha t Carlos H ayes wa nted to

see her. Because Mabry was busy with paperwork, she asked Johnson to

accompany Carlos on the test drive. However, prior to the test drive, Mabry

walked outside and talked to both Carlos and Reginald, who identified

themselves during the convers ation. She identified both Defendants at trial, and

she recalle d that th ey had driven to Midw ay Ford in a 1996 green T oyota

4Runn er. The State entered into evidence photographs of the Toyota taken from

the dea lership’s su rveillance c amera .

Salesperson Shane Johns on testified next for the State. Acco rding to

Johnson, he walked with Carlos to the sales lot, where they discussed several

Mustangs. Carlos decided to test-d rive the black convertible GT about which he

had inquired over the telephone. Johnson realized that the car needed gas and

obtained a gas voucher from the dealership office. He drove Carlos to the gas

station; and as he attem pted to exit the vehicle, Carlos pulled up his shirt on one

side, displaying a gun. Carlos told Johnson that he had “better keep on g oing”;

and Johnson quickly fled as Carlos drove away in the Mustang, valued at

$27,000. At trial, Shane Johnson identified Carlos Hayes as the man who took

the test drive , displayed a gun, an d drove a way in the Mustan g.

Johnson called Midway Ford from the BP gas station where he and Carlos

had stopped. He spoke to Myron Kliss, general manager of the dealership, who

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notified 911. Kliss th en ap proac hed th e gree n To yota 4R unne r, wher e Reg inald

Hayes still waited. Kliss had observed the 4Runner earlier, and he knew that one

of its occup ants ha d gone on the tes t drive with Shane Johns on. When Kliss was

approximately eight steps away from the Toyota, its driver “drove off quic kly” in

the directio n toward where o fficers later fou nd the b lack Mu stang.

Police officers later fou nd the stolen vehicle withou t gas, s ix miles away

from the dealership a nd with six additional m iles on the odom eter, in the parking

lot of the C ollierville M iddle School. Crime-scene investigators located the

fingerprints of both Carlos and Reginald Hayes on the vehicle.

I. DOUBLE JEOPARDY

Initially, we examine whether doub le jeopardy b ars De fendan ts’ convictions

for theft and facilitation of theft, where they were also convicted of aggravated

robbery and facilitation of robbery, respectively. We conclude that the trial judge

shou ld have merged the former convictions into the latter, and we m ust therefore

reverse Carlo s Hay es’s conviction for theft and Reginald Hayes’s conviction for

facilitation of the ft.1

In State v. Denton, 938 S.W .2d 373 (Te nn. 1996), ou r supreme court

examined double jeopard y principles in this state a nd clarified how Ar ticle I,

section 10 of the Tennessee Constitution provides greater protection for the

criminal defendant a gainst double jeopardy than does the federal constitution.

That cla rification em erged a s a four-p art test:

1

Although Reginald Hayes does not appeal his conviction based upon a violation of

double jeopardy, we review the issue as plain error. See Tenn. R. Crim. Proc. 52(b).

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[R]esolution of a double jeopardy punishment issue under the

Tennessee Constitution requires the following: (1) a Blockburger

analys is of the statutory offenses; (2) an analysis, guided by the

principles of Duchac, of the evidence used to prove the offenses; (3)

a consideration o f whether there were m ultiple victims or discrete

acts; and (4) a com parison of the pu rposes of the re spective

statutes. None of these steps is determinative; rather the results of

each m ust be weigh ed and co nsidered in relation to each other.

Id. at 381 (discussing Blockburger v. United States, 284 U.S. 299 (1932), and

Duchac v. State, 505 S.W .2d 237 (Tenn . 1973)); see State v. Winningham, 958

S.W.2d 740, 743 (T enn. 1997 ); State v. Hall, 947 S.W.2d 181, 183 (Tenn. Crim.

App. 19 97).

The subject offenses must first surv ive the fe deral Blockburger test in order

to satisfy the requirements of the federal Double Jeopardy Clause. Winningham,

958 S.W.2d at 743 (citing United States v. Dixon, 509 U.S. 68 8, 696 (1993 )).

Although the Denton court stated that “[n]one of these steps [of its four-part te st]

is determinative,” the first factor is determinative if the Blockburger test is not me t.

In other words, if the offenses are th e “same” u nder Blockburger, the federal

constitutional double jeopardy protections have been violated and the inquiry may

end. In this case, we need not proceed further than the first prong: a Blockburger

analys is of whether the two offenses have the same elements. Under the

Blockburger test, two offenses are not the “same” for double jeopardy purposes

if each “requires proof of an additional fact which the other does n ot.”

Blockburger, 284 U.S. at 304. An offense encompassed in total within another

offense—what we call a “lesser included offense”—does not require proof of an

additional fact, and it is therefore considered the same offense and barred by

double jeopard y.

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The jury convicted Carlos Hayes for aggravated robbery and theft, both of

which were based upon taking the same vehicle. Reginald Hayes was convicted

of facilitation of robbery and facilitation of theft, again based upon the same

property. In this state, theft is a lesser included offense of robbery and

aggravated robbery. See State v. King, 905 S.W.2d 207, 214 (Tenn. Crim. App.

1995), overruled on other grounds by State v. Williams, 977 S.W.2d 101, 106-08

(Tenn. 1998); State v. David L. Owens, No. 02C01-7906-CR-00204, 1998 W L

211795, at *1 (Te nn. Crim . App., Ja ckson, M ay 1, 1998); State v. Timothy

Roberson, No. 02C01-9508-CC-00245, 1997 WL 736513, at *9 (Tenn. Crim.

App., Jackso n, Dec. 1 , 1997); State v. Preston Carter, No. 02C01-9504-CR-

00100, 19 96 W L 417669 , at *3 (Tenn. C rim. App., Jack son, July 26, 199 6).

Aggravated robbery is “robbe ry as defined in § 39-13 -401 . . .

[a]ccomplished with a deadly weapon or by display of any article used or

fashioned to lead the victim to belie ve it to be a dea dly weapon.” Tenn. Code

Ann. § 39-13-402. Robbery is “the intentional or knowing theft of property from

the person of another by violence o r putting the person in fear.” Id. § 39-13-401.

Because the offe nse o f theft is w holly incorporated into the offense of aggravated

robbery and be cause facilitation of the ft is thereby incorporated into the offense

of facilitation of robbery, the offense s are the “same ” under Blockburger. In this

case, the feder al and sta te constitu tions com pel prote ction for Defen dants

agains t conviction for both offe nses.

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II. SUFFICIENCY OF THE EVIDENCE

Both Defendants contest the sufficiency of the evidence presented by the

State to convict them. T ennes see Ru le of App ellate Procedure 13(e) prescribes

that “[f]indings of guilt in criminal actions whether by the trial court or jury shall be

set aside if the evidence is insufficient to support the finding by the trier of fact

beyond a reasonable doubt.” Tenn. R. App. P. 13(e). In addition, because

conviction by a trier of fact destroys the presumption of innocence and imposes

a presumption of guilt, a convicted criminal defendant bears the burden of

showing that the evide nce wa s insufficien t. McBe e v. State, 372 S.W.2d 173,

176 (Tenn . 1963); see also State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992)

(citing State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1976), and State v. Brown,

551 S.W.2d 329, 331 (Tenn. 1977)); State v. Tug gle, 639 S.W.2d 913, 914

(Tenn . 1982); Holt v. State , 357 S.W .2d 57, 61 (T enn. 1962 ).

In its review of the evidence, an appellate court must afford the State “the

strongest legitimate view of the evidence as we ll as all reas onable and legitim ate

inferences that may be drawn there from.” Tug gle, 639 S.W.2d at 914 (citing

State v. Cabbage, 571 S.W.2d 832, 835 (Ten n. 1978)). The court may not “re-

weigh or re-evaluate the evidence” in the record below. Evans, 838 S.W.2d at

191 (citing Cabbage, 571 S.W .2d at 836). Likew ise, should the review ing court

find particular conflicts in the trial testimony, the court must resolve them in favor

of the jury v erdict o r trial cou rt judgme nt. Tuggle, 639 S.W .2d at 914 . We

conclude that the State presented evidence sufficient to permit the jury to find

Carlos Haye s guilty o f aggra vated robbe ry and Regin ald Ha yes gu ilty of

facilitation of ro bbery.

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The proof at trial demonstrated that a person who identified himself as

Carlos Hayes telephoned to ask whethe r the Midway F ord dealership had a 1996

black convertible Mustang GT in stock. The same afternoon, a man who

introduced himse lf as Carlos Hayes entered the dealership and asked for the

salespe rson with whom he had spoke n on the phone . Mabry, the salesperson,

identified this man a t trial as Defe ndant C arlos Ha yes.

Shane Johnson, the victim, also identified Carlos at trial as the man who

requested and we nt on a tes t drive of the b lack Mu stang w ith him. H e testified

that Carlos displayed a gun d uring the test drive an d told him to “keep going.”

After Johnson ran, C arlos d rove a way in the ca r. W e con clude that the jury cou ld

reason ably have found tha t Carlos H ayes inten tionally or kn owingly, w ith intent

to deprive the owner of the vehicle, obtain ed or e xercise d con trol ove r the ve hicle

from the person of Shane Johnson by puttin g him in fear b y use o f a dea dly

weapo n. See Tenn . Code Ann. §§ 39-13-4 01, -402 , 39-14-1 03.

In addition, w e find the e vidence sufficient to permit a jury to conclude that

Reg inald Hayes knowingly furnished substantial assistance to his brother Carlos

in the comm ission of ro bbery. See id. § 39-11-403. The proof showed that

Reg inald accomp anied Carlos to Midway Fo rd and remained in the driver’s seat

of their car in the parking lot throughout the incident. When approached by a

representative of the d ealers hip, Re ginald quickly drove away in the dire ction

toward w here po lice later foun d the stole n vehicle.

Salespersons Mabry and Johnson testified that they never saw Regin ald

leave the green 4Runner, yet crime-scene investigators located his fingerp rints

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several places on the black Mustan g. Although the jury heard testimony that the

fingerprints could have been placed on the Mus tang da ys earlier on the sales lot,

and desp ite testim ony by Midw ay’s general manager that he saw Reginald get

out of the 4R unner a t some point, we believe that the jurors were entitled from

the facts to conclude that Reginald may have met Carlos at a predetermined

location after the robbery, where he there to uched the car. This evidence

strengthens the State’s theory of Reginald Hayes’s facilitation of the crime.

III. INCONSISTENCY OF VERDICTS

Finally, Regin ald Ha yes co ntend s that h is conviction for facilitation of

robbe ry is inconsistent with his brother’s conviction for aggravated robbery and

that his conviction for facilitation should therefore be reversed. He argues that

the jury could not have found him guilty of assisting a robb ery when it concluded

that Carlos Hayes committed an aggravated robbery. In essence, Defendant

asserts that when Carlos committed an aggravated robbery, he did no t com mit

a robbe ry; and this is sue en tirely lacks m erit.

The State correctly cites our supreme court’s decision in Wig gins v. Sta te,

498 S.W.2d 92 (Tenn. 1973), that consistency of verdict is not required, so long

as “the evidence establishes guilt of the offense upon which the conviction was

returned .” Id. at 94. T his Court recently reaffirmed the principle in State v. Tony

Scott Walker, No. 02C 01-970 4-CC -00147 , 1997 W L 7464 33, at *3-*5 (Tenn.

Crim. App., Ja ckson, D ec. 3, 199 7). W e are convinced that a verdict of guilt for

facilitation of robbery was within the purview of the jury, and we therefore affirm

the con viction on th is count.

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Carlos Hayes’s conviction for theft of property valued between $10,000 and

$60,000 and Reginald Hayes’s conviction for facilitation of theft are acco rdingly

reversed, and their convictions for aggravated robbery and facilitation of robbery,

respectively, are affirmed.

____________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

JERRY L. SMITH, JUDGE

___________________________________

JOHN K. BYERS, SENIOR JUDGE

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