State of Tennessee v. Shanerick Abraham

03/13/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs February 7, 2017

STATE OF TENNESSEE v. SHANERICK ABRAHAM

Appeal from the Criminal Court for Shelby County

No. 15-00697 Glenn Ivy Wright, Judge

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No. W2016-01497-CCA-R3-CD

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A Shelby County Criminal Court jury convicted the defendant, Shanerick Abraham, of

aggravated robbery. On appeal, the defendant argues the evidence was insufficient to

support his aggravated robbery conviction because the victim voluntarily gave the

defendant money, and the alleged taking was temporally remote to the subsequent act of

violence. The defendant additionally alleges ineffective assistance of counsel. Following

our review, we affirm the judgment of the trial court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which THOMAS T. WOODALL, P.J.,

and CAMILLE R. MCMULLEN, J., joined.

Samuel J. Muldavin, Memphis, Tennessee (on appeal), John Scott, Memphis, Tennessee

(at trial), for the appellant, Shanerick Abraham.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant

Attorney General; Amy P. Weirich, District Attorney General; and Austin Scofield,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

Facts and Procedural History

On October 17, 2014, Larry Saulsberry, the defendant, and others were shooting

dice. Eventually, only Mr. Saulsberry and the defendant remained in the game. Initially,

Mr. Saulsberry was losing several hundred dollars to the defendant. However, when Mr.

Saulsberry started to win his money back, the defendant became angry. Having won his

money back and because the defendant was upset, Mr. Saulsberry left, accidentally

leaving his cell phone behind. About thirty minutes later, Mr. Saulsberry returned to

retrieve his phone but could not locate it and accused the defendant of stealing it. The

defendant pulled out a gun and said, “You feel like I got your phone; you give me

everything.” Mr. Saulsberry backed away in fear, trying not to draw attention to the

situation.

Meanwhile, the victim, Samuel Washington, was drinking beer with a coworker

outside a nearby neighborhood store when he saw the defendant waiving a gun around

and walking toward Mr. Saulsberry. As Mr. Saulsberry backed away from the defendant,

the victim heard the defendant say, “You need to drop that off,” slang for “give me

whatever is in your pockets.” The victim intervened, stood between Mr. Saulsberry and

the defendant, and told the defendant to put down the gun. According to the victim’s trial

testimony, the defendant then said, “Well, you can drop it off, too.” While the victim

testified he was not in fear, the defendant was holding a gun, and the victim hoped “he

wouldn’t do nothing foolish with it,” so he immediately took $63.00 from his pocket.

According to the victim, he would not have done this had the defendant not wielded a

gun. The defendant then grabbed the money and smacked the victim in the face with the

gun, rendering him unconscious. The victim was unsure about how long he was

unconscious.

Mr. Saulsberry offered slightly different testimony regarding the events occurring

that evening. According to Mr. Saulsberry, once the defendant pulled out his gun and

started walking toward him, the victim intervened and said, “Jamal,1 why are you doing

this? We are all family. If it’s about some money; here’s some money.” The victim

subsequently handed the defendant money from his pocket, and the defendant smacked

the victim in this face with his gun.

After the attack, the victim was transported to the hospital and underwent surgery

to repair his broken jaw. Detective Steven Foglesong with the Memphis Police

Department visited the victim at the hospital to get more information regarding the

sequence of events. There, the victim informed Detective Foglesong he had been robbed

and assaulted by the defendant. Detective Foglesong interviewed Mr. Saulsberry as well,

and Mr. Saulsberry also identified the defendant as the victim’s assailant. At trial, the

victim, Mr. Saulsberry, and Detective Foglesong all identified the defendant in the

courtroom.

The State called the victim, Mr. Saulsberry, and Detective Foglesong to testify at

trial. Following a Momon hearing, the defendant declined to testify and did not call any

witnesses. The jury found the defendant guilty of aggravated robbery. Following a

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The defendant’s nickname is “Jamal.”

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sentencing hearing, the trial court sentenced the defendant as a Range I, standard

offender, to nine years in confinement. The defendant filed a motion for a new trial,

which was denied by the trial court. This timely appeal followed.

Analysis

On appeal, the defendant first challenges the sufficiency of the evidence to support

his aggravated robbery conviction. The defendant contends the victim voluntarily

relinquished his money in an effort to stop the altercation between Mr. Saulsberry and the

defendant, calling it a “bribe.” The defendant further asserts the defendant struck the

victim subsequent to the taking rather than concomitant or contemporaneous with the

taking, so the evidence did not support a robbery conviction. Finally, the defendant

contends he received ineffective assistance of counsel at trial due to trial counsel’s failure

to object to leading questions. After a thorough review of the record, we affirm the

judgment of the trial court.

I. Sufficiency of the Evidence

When the sufficiency of the evidence is challenged, the relevant question of the

reviewing court is “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). 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 has 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.

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

Guilt may be found beyond a reasonable doubt where there is direct evidence,

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

776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn.

1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The standard of review for

sufficiency of the evidence “‘is the same whether the conviction is based upon direct or

circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)

(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The jury as the trier of

fact must evaluate the credibility of the witnesses, determine the weight given to

witnesses’ testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245

S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim.

App. 1978)). Moreover, the jury determines the weight to be given to circumstantial

evidence and the inferences to be drawn from this evidence, and the extent to which the

circumstances are consistent with guilt and inconsistent with innocence are questions

primarily for the jury. Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d

646, 662 (Tenn. 2006)). This Court, when considering the sufficiency of the evidence,

shall not reweigh the evidence or substitute its inferences for those drawn by the trier of

fact. Id.

Aggravated robbery is robbery accomplished with a deadly weapon. Tenn. Code

Ann. § 39-13-402(a)(1). Robbery is defined as “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 theft of property occurs when someone, with the intent to

deprive the owner of property, knowingly obtains or exercises control over the property

without the owner’s effective consent. Tenn. Code Ann. § 39-14-103(a).

Violence is defined as “physical force unlawfully exercised so as to damage,

injure or abuse.” State v. Fitz, 19 S.W.3d 213, 217 (Tenn. 2000). Pointing a weapon

satisfies the element of violence. State v. Allen, 69 S.W.3d 181, 186 (Tenn. 2002). Fear

is “fear of present personal peril from violence offered or impending.” State v. Bowles,

52 S.W.3d 69, 80 (Tenn. 2001).

“[W]hether a taking is properly characterized as a theft or a robbery is contingent

upon whether and when violence or fear is imposed.” State v. Owens, 20S.W.3d 634,

637 (Tenn. 2000). To constitute a robbery, the requisite violence or fear must precede or

be concomitant or contemporaneous with the taking. Id. at 641. In State v. Swift, 308

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S.W.3d 827 (Tenn. 2010), our Supreme Court confirmed “[t]he temporal proximity

between the taking of the property and the use of violence or fear is the sole relevant

factor” when elevating theft to robbery, and this temporal proximity is assessed by

ascertaining when the taking was complete. Id. at 829.

The defendant first asserts the evidence was insufficient to support his aggravated

robbery conviction because the victim voluntarily gave him money so he would put down

the gun, essentially offering a bribe. This argument defies logic, and if accepted as a

viable defense, would negate almost all aggravated robbery charges. According to the

proof presented by the State at trial, the victim intervened in the altercation between Mr.

Saulsberry and the defendant in an effort to get the defendant to put away his gun. After

the victim stepped between the men, the defendant continued to hold the gun and

commanded the victim to “drop it off,” which the defendant understood as slang for “give

me whatever is in your pockets.” The victim testified that while he was not afraid, he

would not have pulled money out of his pocket after being commanded to do so had the

defendant not been holding a gun. Moreover, the defendant subsequently used the gun to

knock the victim unconscious. The use of a gun during a taking satisfies the element of

“violence.” See State v. Travis Seiber, No. W2015-00221-CCA-R3-CD, 2016 WL

716307, at *6 (Tenn. Crim. App. Feb. 23, 2016). Viewing this evidence in the light most

favorable to the State, a rational trier of fact could have found the essential elements of

aggravated robbery beyond a reasonable doubt. The defendant is not entitled to relief on

this issue.

Next, citing Owens, the defendant contends the evidence was insufficient to

support his aggravated robbery conviction due to the lapse of time between the taking and

violent act. The defendant argues the victim testified he was “just standing there drinking

[his] beer” when the defendant smacked him in the face with his gun, making the use of

violence temporally remote from the taking. Again, the defendant’s argument is without

merit.

Both Owens and Swift address the necessary proximity of the taking to the use of

violence when determining the sufficiency of the evidence to support convictions for

robbery and aggravated robbery. In Owens, the defendant took stolen merchandise out of

the store and ran approximately five blocks before any act of violence or fear occurred, so

our Supreme Court determined the evidence was insufficient to support the defendant’s

robbery conviction. Owens, 20 S.W. 3d at 637-642. In Swift, the defendant completed

the taking by concealing unwrapped stolen merchandise in his pants before swinging a

knife at store employees when exiting the store several minutes later. Swift, 308 S.W.3d

at 831. Because the taking was complete prior to the act of violence or use of fear, our

Supreme Court held the evidence was insufficient to support the defendant’s conviction

for aggravated robbery. Id.

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In the present matter, the State presented evidence the defendant held the gun in

plain sight throughout his encounter with the victim. After being commanded to give the

defendant the contents of his pockets, the victim gave the defendant $63, and the

defendant hit the victim in the face with his gun. Unlike Swift and Owens, where the use

of fear or violence occurred well after the taking, the taking here was simultaneous with

the use of violence. When viewing the evidence presented at trial in the light most

favorable to the State, the evidence was sufficient to support his aggravated robbery

conviction. The defendant is not entitled to relief on this issue.

II. Effectiveness of Counsel

Finally, the defendant argues he received ineffective assistance of counsel because

his attorney failed to object to two leading questions. Because the defendant raises

ineffective assistance of counsel for the first time on appeal, it has been waived. Tenn. R.

App. P. 3(e); see also State v. Alvarado, 961 S.W.2d 136, 153 (Tenn. Crim. App. 1996).

Moreover, the defendant’s failure to raise ineffective assistance of counsel in his motion

for a new trial deprived the trial judge of the opportunity to evaluate trial counsel’s

performance, so this Court does not have a proper record before it. State v. Randell

Tilley, No. 53, 1990 WL 205232, at *2 (Tenn. Crim. App. Dec. 14, 1990). For these

reasons, this Court has cautioned:

Raising issues pertaining to the ineffective assistance of counsel for the first

time in the appellate court is a practice fraught with peril. The appellant

runs the risk of having the issue denied due to a procedural default, or, in

the alternative, having a panel of this Court consider the issue on the merits.

The better practice is to not raise the issue on direct appeal under the

circumstances. The issue can be subsequently raised in a post-conviction

proceeding if the appellant’s direct appeal, as here, is not successful.

State v. Jimmy L. Sluder, No. 1236, 1990 WL 26552, at *7 (Tenn. Crim. App. March 14,

1990) (emphasis in original).

Because the defendant raises his ineffective assistance of counsel claim for the

first time on appeal, it has been waived and will not be considered by this Court. The

defendant is not entitled to relief on this issue.

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Conclusion

Based upon the foregoing authorities and reasoning, the judgments of the trial

court are affirmed.

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J. ROSS DYER, JUDGE

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