State of Tennessee v. Michael Frazier

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs July 12, 2016

STATE OF TENNESSEE v. MICHAEL FRAZIER

Appeal from the Criminal Court for Shelby County

No. 13-02026 Lee V. Coffee, Judge

No. W2015-01537-CCA-R3-CD – Filed September 16, 2016

The defendant, Michael Frazier, was convicted by a Shelby County Criminal Court jury

of especially aggravated kidnapping, a Class A felony; aggravated robbery, a Class B

felony; and carrying a weapon with the intent to go armed, a Class A misdemeanor. He

was sentenced by the trial court to an effective term of thirty-seven years, eleven months,

and twenty-nine days in the Department of Correction. The sole issue he raises on appeal

is whether the evidence is sufficient to sustain his especially aggravated kidnapping and

aggravated robbery convictions. Following our review, we affirm the judgments of the

trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which JOHN EVERETT

WILLIAMS and ROBERT W. WEDEMEYER, JJ., joined.

Ruchee J. Patel (on appeal) and Paul Guibao (at trial), Memphis, Tennessee, for the

appellant, Michael Frazier.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;

Amy P. Weirich, District Attorney General; and Kenya N. Smith, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

FACTS

According to the State‟s proof at trial, on September 23, 2012, the defendant

approached the victim, Shatarra Welch, as she was sitting in her car outside a closed car

dealership in Memphis, pointed a gun at her face, and demanded her purse and money.

When she told him she had nothing other than a money order, which she was holding at

the time, the defendant got into the backseat of her vehicle, took her cell phone and her

driver‟s license, and held his gun on her while she drove to a Walmart to cash the money

order. On the defendant‟s instructions, the victim parked outside the store and left the

defendant behind in the vehicle with her car keys as she went into the store to cash the

money order. Once inside the store, the victim immediately reported the situation to

Walmart employees, who contacted the police. The defendant was quickly arrested and

subsequently indicted for especially aggravated kidnapping, aggravated robbery, and

being a convicted felon in possession of a firearm.

At trial, the victim testified that early on the afternoon of September 23, 2012, she

was at the American Car Center on Winchester Road writing the account number on a

money order in preparation for dropping it in the car dealership‟s drop box when she

noticed two men walking down the street past her car. She did not think anything of it

until she suddenly saw in her rearview mirror one of the men rapidly approaching her

vehicle. The man pointed a silver .38 revolver at her face through her open driver‟s

window and demanded her purse. She told him she had no purse, and he responded by

calling her a liar and demanding her money. When she told him all she had was the

money order, he got into the backseat of her vehicle behind her, placed his gun at the

back of her head, and told her to take him to a “MoneyGram” to cash the money order.

The victim testified that she asked the man what a MoneyGram was, and he

responded by telling her not to play with him. She said she assumed he thought that

“MoneyGram” was an actual place because the money order had “MoneyGram” stamped

on it. She stated that she told him she could take him to Walmart, where she had

purchased the money order, and then drove him to the Walmart located seven or eight

minutes down the road. The man kept his gun pointed at the back of her head during the

entire drive. He took her cell phone and driver‟s license from her, read her address aloud

from her driver‟s license, and threatened to kill her family if she tried “anything funny.”

When they reached the Walmart, she tried to park beside a woman who was loading

packages into her car, but the defendant directed her to a different parking spot further

from the door and told her to leave the keys in the car. When she told him she needed her

driver‟s license to cash the money order, he returned her license to her.

The victim testified that she told the first cashier she saw inside the Walmart what

was happening but that individual just looked at her without responding, so she

proceeded to the Money Center, where she repeated her story. The Money Center

employee notified the store‟s Loss Prevention Department, and she described her car and

what she could recall of the perpetrator‟s clothing to the loss prevention employee. She

said that a police officer who responded to the store informed her that they had captured

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the suspect and asked her to follow him to 201 Poplar Avenue, where she was

interviewed about the crime and had her cell phone returned to her.

The victim testified that she could not see the perpetrator‟s face when he was

standing outside her driver‟s door and never tried to look at his face during the drive

because he was holding a gun to the back of her head and she did not want to make any

sudden movements. She estimated that the ordeal lasted approximately twenty minutes

and described herself as terrified during the entire incident.

On cross-examination, the victim reiterated that she did not look at the defendant

when he demanded her driver‟s license and cell phone after he got into the car and she

was driving him to Walmart. Instead, she just reached behind her to hand him the items

without turning her head.

Daniel Gilmore, a Walmart Loss Prevention Associate who was working at the

Winchester store at the time of the incident, testified that he spoke with the victim after a

call came in over the radio about a panicked individual at the Money Center. He said the

victim was trembling and almost hyperventilating when he arrived and that the first

words out of her mouth were that a man had gotten into her car with a gun. After getting

a description of her vehicle and the perpetrator‟s clothing, he went to the front entrance,

looked out, and immediately saw her vehicle in the location she had indicated. He then

assigned a fellow employee the task of watching the vehicle and reporting any activity

while he returned to his office and began reviewing the store‟s surveillance video.

Mr. Gilmore testified that he “c[aught] up to real time” after reviewing only a few

minutes of videotape. He identified a disc he had made of the surveillance tape of the

incident, which was admitted as an exhibit and published to the jury. He said that as he

was reviewing the videotape immediately after the victim reported the crime, he saw her

vehicle pull up to the west side of the parking lot and the victim exit the vehicle and walk

into the store. He then saw a second individual, whom he later identified as the

defendant, exit the vehicle, walk toward a dumpster, disappear from camera view

momentarily, and then enter the store and walk over to the jewelry department, which

was in direct view of the Money Center, before exiting the store through the grocery

entrance and walking back through the parking lot toward the Ruby Tuesday parking lot.

Mr. Gilmore testified that when the videotape caught up to “real time,” he went

outside, where he watched the defendant walk over to a dumpster, reach into it, leave the

dumpster area, and walk to the front of the Payless Shoe Store. At that point, Memphis

police officers arrived and he gave them a description of the defendant, reported his

location, and related what the victim had told him about the situation. He next saw the

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defendant sitting in the backseat of a squad car. On cross-examination, he acknowledged

that the surveillance video never showed the defendant with a weapon.

Memphis Police Officer Ryan Reviere, who responded with his partner to the call,

testified that Mr. Gilmore informed them that the defendant had gone into the Payless

Shoe Store in the next shopping mall. He said he and his partner drove to that parking lot

and pulled in behind a second patrol unit, which had also responded. The defendant

stepped out of the store, saw the officers, and “took off running northbound across all

seven lanes of Winchester.” He lost sight of the defendant as they were driving across

Winchester but spotted him again running through the brush behind a grocery store. His

partner apprehended the defendant at the top of the hill and brought him back to their

patrol car, where Officer Reviere searched him and found two cell phones in his pocket, a

black one and a Samsung phone with purple trim, which the victim identified as hers.

Officer Christopher Slaughter of the Memphis Police Department‟s Crime Scene

Investigation Unit testified that he found a silver and brown .38 special Rossi handgun

revolver inside a dumpster behind the Payless Shoe Store. The weapon was a five-shot

revolver, and it was loaded with four rounds of live ammunition.

The defendant elected not to testify and rested his case without presenting any

proof. Following deliberations, the jury convicted him of especially aggravated

kidnapping and aggravated robbery as charged in counts one and two of the indictment,

and of the lesser-included offense of carrying a weapon with the intent to go armed in

count three of the indictment.

ANALYSIS

Sufficiency of the Evidence

The sole issue the defendant raises on appeal is whether the evidence is sufficient

to sustain his especially aggravated kidnapping and aggravated robbery convictions.

Specifically, the defendant argues that the State failed to prove beyond a reasonable

doubt the essential elements of the crimes. In our review of this issue, we consider

“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); see also Tenn. R.

App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury

shall be set aside if the evidence is insufficient to support the findings by the trier of fact

of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn.

1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992).

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All questions involving the credibility of witnesses, the weight and value to be

given the evidence, and all factual issues are resolved by the trier of fact. See State v.

Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “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, 493 S.W.2d 474,

476 (Tenn. 1973). Our supreme court stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and the

jury see the witnesses face to face, hear their testimony and observe their

demeanor on the stand. Thus the trial judge and jury are the primary

instrumentality of justice to determine the weight and credibility to be

given to the testimony of witnesses. In the trial forum alone is there human

atmosphere and the totality of the evidence cannot be reproduced with a

written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212

Tenn. 464, 370 S.W.2d 523 (1963)).

“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).

A. Especially Aggravated Kidnapping

To sustain the conviction for especially aggravated kidnapping, the State had to

prove beyond a reasonable doubt that the defendant knowingly removed or confined the

victim so as to interfere substantially with the victim‟s liberty and that the removal or

confinement was accomplished with a deadly weapon. See Tenn. Code Ann. §§ 39-13-

302(a)(1), -305(a)(1).

The defendant, citing State v. White, 362 S.W.3d 559 (Tenn. 2012), argues that

the evidence is insufficient to sustain his conviction for especially aggravated kidnapping

because the State failed to prove that the confinement of the victim was to a greater

degree than necessary to commit the offense of aggravated robbery. He additionally

argues that the State failed to prove that the confinement was accomplished with a deadly

weapon, asserting that there was no evidence to corroborate the victim‟s testimony that

the defendant held a gun on her. The State argues that the evidence supports the trial

court‟s findings at the motion for new trial hearing that the robbery was completed when

the defendant took the money order, cell phone, and driver‟s license and that the

defendant extended the victim‟s confinement beyond the completed robbery for the

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purpose of getting the money order cashed. The State also argues that the victim‟s

testimony about the defendant‟s use of a pistol was sufficient to establish the deadly

weapon element of the crime. We agree with the State.

In White, our supreme court overruled “[State v.] Anthony, [817 S.W.2d 299

(Tenn. 1991),] and the entire line of cases including a separate due process analysis in

appellate review[,]” concluding that “whether the evidence, beyond a reasonable doubt,

establishes each and every element of kidnapping, as defined by statute, is a question for

the jury properly instructed under the law.” Id. at 577-78. “This finding by a jury, along

with a reviewing court‟s „asses[ment] [of] the sufficiency of the convicting evidence,‟ is

sufficient to protect the defendant‟s due process rights.” State v. Teats, 468 S.W.3d 495,

502 (Tenn. 2015) (quoting White, 362 S.W.3d at 577-78).

The White court wrote:

Under the standard we adopt today, trial courts have the obligation

to provide clear guidance to the jury with regard to the statutory language.

Specifically, trial courts must ensure that juries return kidnapping

convictions only in those instances in which the victim‟s removal or

confinement exceeds that which is necessary to accomplish the

accompanying felony. Instructions should be designed to effectuate the

intent of the General Assembly to criminalize only those instances in which

the removal or confinement of a victim is independently significant from an

accompanying felony, such as rape or robbery. When jurors are called

upon to determine whether the State has proven beyond a reasonable doubt

the elements of kidnapping, aggravated kidnapping, or especially

aggravated kidnapping, trial courts should specifically require a

determination of whether the removal or confinement is, in essence,

incidental to the accompanying felony or, in the alternative, is significant

enough, standing alone, to support a conviction. In our view, an instruction

of this nature is necessary in order to assure that juries properly afford

constitutional due process protections to those on trial for kidnapping and

an accompanying felony.

Id. at 578. Accordingly, the White court set forth the following jury instruction, which

has since become part of the pattern jury instructions, and which the trial court used in

this case:

To establish whether the defendant‟s removal or confinement of the

victim constituted a substantial interference with his or her liberty, the State

must prove that the removal or confinement was to a greater degree than

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that necessary to commit the offense of [insert offense], which is the other

offense charged in this case. In making this determination, you may

consider all the relevant facts and circumstances of the case, including, but

not limited to, the following factors:

--the nature and duration of the victim‟s removal or confinement by

the defendant;

--whether the removal or confinement occurred during the

commission of the separate offense;

--whether the interference with the victim‟s liberty was inherent in

the nature of the separate offense;

--whether the removal or confinement prevented the victim from

summoning assistance, although the defendant need not have

succeeded in preventing the victim from doing so;

--whether the removal or confinement reduced the defendant‟s risk

of detection, although the defendant need not have succeeded in this

objective; and

--whether the removal or confinement created a significant danger or

increased the victim‟s risk of harm independent of that posed by the

separate offense.

Id. at 580-81 (footnote omitted).

After hearing the evidence and being appropriately instructed by the trial court, the

jury found the defendant guilty of the especially aggravated kidnapping of the victim.

We conclude that the evidence is sufficient to sustain the jury‟s verdict. Viewed in the

light most favorable to the State, the evidence established that the defendant, after

demanding the victim‟s property at gunpoint and taking her cell phone and her driver‟s

license, kept his gun pointed at the victim‟s head as she drove to the Walmart to comply

with his demand that she take him to get the money order cashed. The drive from the car

center to the Walmart took at least seven to eight minutes, and the entire episode,

according to the victim, lasted approximately twenty minutes. We, therefore, affirm the

defendant‟s conviction for especially aggravated kidnapping.

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A. Aggravated Robbery

To sustain the conviction for aggravated robbery, the State had to prove beyond a

reasonable doubt that the defendant committed an intentional or knowing theft of

property from the person of the victim by violence or putting the victim in fear, and that it

was accomplished with a deadly weapon. Tenn. Code Ann. §§ 39-13-401(a), -402(a).

The defendant contends that the State failed to prove that the victim‟s property

was taken by violence or by putting the victim in fear, that a deadly weapon was used or

displayed, or that any robbery was completed. In support, he argues, among other things,

that there was no corroborating evidence to support the victim‟s testimony that the

defendant used a gun, that the money order “remained in [the] custody of [the victim],”

that no cash or other property “was taken from the body of any person[,]” and that “[a]ll

other property was left in the vehicle when [the victim] was allowed to exit and walk into

the store.” The State contends that the evidence was sufficient to establish each element

of the crime of aggravated robbery, arguing that the defendant had constructive, if not

actual, possession of the money order at the beginning of the drive when he asked the

victim at gunpoint to drive him to a “MoneyGram” to cash the money order. The State

also cites the victim‟s testimony that she was terrified by having a gun held to her head

and gave the defendant her cell phone and driver‟s license and drove him to the Walmart

to cash the money order out of fear. We, once again, agree with the State.

Viewed in the light most favorable to the State, the evidence established that the

defendant pointed a gun at the terrified victim‟s face and demanded her purse and cash.

When the victim told him all she had was a money order, the defendant got into the

backseat of her vehicle and ordered her to take him somewhere to cash the money order.

During the drive, the defendant demanded and took at gunpoint from the victim her cell

phone and driver‟s license. This was sufficient proof from which the jury could find all

the elements of the crime beyond a reasonable doubt. Accordingly, we affirm the

defendant‟s conviction for aggravated robbery.

CONCLUSION

Based on our review, we conclude that the evidence is sufficient to sustain the

defendant‟s convictions for especially aggravated kidnapping and aggravated robbery.

Accordingly, we affirm the judgments of the trial court.

_________________________________

ALAN E. GLENN, JUDGE

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