State of Tennessee v. Michael Austin

04/10/2019

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs March 5, 2019

STATE OF TENNESSEE v. MICHAEL AUSTIN

Appeal from the Criminal Court for Shelby County

No. 15-04179 Chris Craft, Judge

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No. W2017-02171-CCA-R3-CD

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The Defendant, Michael Austin, was convicted by a Shelby County Criminal Court jury

of aggravated robbery, a Class B felony; convicted felon in possession of a firearm, a

Class C felony; and driving with a revoked, suspended or cancelled license, a Class A

misdemeanor. The trial court sentenced the Defendant as a Range I, standard offender to

eight years for the aggravated robbery conviction, three years for the firearm conviction

and six months for the driving conviction and ordered that the felony sentences be served

consecutively to each other, for a total effective sentence of eleven years in the

Department of Correction. On appeal, the Defendant challenges the sufficiency of the

convicting evidence for his felony convictions and argues that the trial court erred in

ordering consecutive sentences. 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 ROBERT L. HOLLOWAY,

JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Jessica L. Gillentine, Bartlett, Tennessee (on appeal); and Larry E. Fitzgerald, Memphis,

Tennessee (at trial), for the appellant, Michael Austin.

Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant

Attorney General; Amy P. Weirich, District Attorney General; and Abby Wallace and

Jose Leon, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

FACTS

On the evening of January 23, 2015, a masked gunman entered a Shelby County

Dollar General store where Deana Jeffries was working, robbed her at gunpoint of $207

from the store’s cash register, and fled out the door, where another store employee,

Walter Taylor III, watched him get in the passenger side of a light-colored SUV or van

that sped off into a residential neighborhood. A few minutes later, Shelby County

Sheriff’s deputies spotted a light-colored van traveling at a high rate of speed from the

neighborhood. When they stopped the vehicle, they found the Defendant dressed only in

thermal underwear sitting in the driver’s seat of the vehicle and Jack Austin sitting in the

front passenger seat. They also found a loaded revolver in the glove box, $207 in cash in

Jack Austin’s front right pocket, and clothing and a face mask in the rear of the vehicle

that matched the clothing worn by the armed robber. The Defendant and Jack Austin

were subsequently indicted together for aggravated robbery. The Defendant was indicted

alone for the additional counts of convicted felon in possession of a firearm, felony

evading arrest, and driving while license revoked, suspended, or cancelled. At the

conclusion of their joint trial, Jack Austin was convicted of aggravated robbery, while the

Defendant was convicted of aggravated robbery and driving while license revoked,

suspended or cancelled and acquitted of felony evading arrest. Following the second

portion of his trial, the Defendant was also convicted of being a convicted felon in

possession of a firearm.

FACTS

Deana Jeffries, the assistant manager of the Dollar General store in Millington,

Tennessee, testified that shortly before the store’s 10:00 p.m. closing time on January 23,

2015, a man dressed in black pants, black shirt, black shoes, and a black ski mask entered

the store through the front door. She said he was armed with a black or possibly black

and silver handgun and ordered everyone to get down. He then forced her to go around

the counter to open the cash register and held the gun pointed directly to her face as he

ordered her to “hurry up.” When she finally succeeded in opening the cash register, she

complied with his instructions to place the cash inside a white plastic grocery store bag.

The gunman took the cash and fled from the store through the front door.

Ms. Jeffries identified the store surveillance tape of the incident, which was

admitted as an exhibit and published to the jury. She said she gave a statement to police

that night and later attempted to identify the perpetrator from photographs she was shown

by the police but was unable to do so because the gunman wore a ski mask. She was,

however, able to tell that he had brown skin. On cross-examination, she testified that the

gunman took approximately $200 in cash from the register. She estimated that the

gunman was “a tad taller” than her 5’10” height.

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Walter Taylor III, a cashier at the store, testified that he was stocking the shelves

near closing time when he heard a woman scream and someone say, “Get on the ground.”

He said he walked to the end of the aisle, saw someone dressed in black with his arm

stretched out holding a gun, and reacted by running out one of the store’s rear emergency

exits to the parking lot, where he called 9-1-1. While he was outside, he saw someone

run to a van or SUV that was waiting across the street with its lights on and get into the

passenger side of the vehicle. As soon as the person got into the vehicle, it immediately

“sped off” into the Waverly Plantation neighborhood, leading Mr. Taylor to conclude that

the vehicle’s engine must have already been running. Mr. Taylor identified a photograph

of a van that appeared similar to the vehicle that he saw that night.

Officer Sharif James of the Shelby County Sheriff’s Department testified that he

and his partner were only two to five minutes away from the Dollar General and

consequently the first two officers to respond to the armed robbery call. After learning

that the suspect had been seen fleeing eastbound on Waverly Farms Road into the

Waverly Plantation neighborhood, he had a “Be on the lookout” for, or “BOLO,” issued

for the suspect and vehicle. Officer James testified that there were only two ways to

enter or exit the subdivision, either Waverly Farms Road or the next street, which was

Duncan. He said Ms. Jeffries provided a description of the armed robber and informed

him that $207 had been taken from the store’s cash register, while Mr. Taylor provided a

description of the get-away vehicle as a light-colored truck or SUV or van.

Officer Heidi Moulder of the Shelby County Sheriff’s Department testified that

she and her partner received the BOLO and drove to Duncan to wait because they knew

other officers had the only other entrance to the neighborhood covered. As they waited,

they saw a light-colored SUV-type vehicle that was traveling at a high rate of speed turn

westbound on Duncan from Northland Drive in the process running a stop sign. She said

she and her partner activated their blue lights in an attempt to initiate a stop but the

vehicle continued at a high rate of speed on Duncan to Raleigh Millington before finally

pulling over. As she neared the vehicle, she was able to determine that it was a van.

Officer Moulder testified that she approached the passenger side of the van while

her partner approached the driver’s side. She said the passenger, who was very nervous

and talkative, told her that he and the driver had been at their aunt’s house. Because he

was so nervous, she asked him what was in the vehicle’s glove box. At that point, the

driver turned his head to inform her that the glove box was locked, and they had no key.

Inside the glove box, the officers found a dark gray metal handgun with a brown

handle that was wrapped in a “do-rag.” In the rear of the van, they found a black

“hoodie” turned inside out, a pair of black pants, a pair of black shoes with a pink stripe

on the bottom, a “completely covered skull mask,” and a white plastic bag. In the second

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row of the van, they found a fur-lined hood and a pair of black gloves. Finally, they

found $207 in cash in the passenger’s front right pocket. Officer Moulder identified,

among other things, photographs of the van and the clothing recovered, which she agreed

was consistent with the clothing worn by the perpetrator in the store surveillance video.

She made a positive courtroom identification of the Defendant as the driver of the van

and his co-defendant, Jack Austin, as the passenger.

On cross-examination, Officer Moulder acknowledged that the Defendant pulled

over and stopped the van at Raleigh Millington without trying to drive around traffic and

without having an officer in front of him to force him to stop. On redirect examination,

she testified that she and her partner reached speeds of 72 miles per hour in their pursuit

of the Defendant and were unable to gain any ground on him until he was forced to stop

due to the traffic on Raleigh Millington.

Officer Billy Gray of the Shelby County Sheriff’s Department, who was partnered

with Officer Moulder on the night of January 23, 2015, corroborated much of Officer

Moulder’s testimony regarding their stop of the van and the items they found inside. In

addition, he testified that the Defendant was wearing only a gray thermal top and bottom,

despite the “30-something” degree temperature. He said the Defendant provided him a

Tennessee identification-only card when he asked for the Defendant’s driver’s license,

and he subsequently learned that the Defendant’s driver’s license had been suspended.

He stated that the glove box where the weapon was located was within an arm’s reach of

the Defendant’s driver’s seat and that the glove box was unlocked. He said that the

Defendant and his co-defendant were both approximately 6’ to 6’2” in height.

Rochelle Cooper, an investigator with the Shelby County District Attorney’s

Office, identified an official copy of the Defendant’s driving record, which showed that

his license had been suspended on July 10, 2014.

The Defendant and his co-defendant each elected not to testify and neither

presented any evidence in their defense.

ANALYSIS

I. Sufficiency of the Evidence

As his first issue, the Defendant challenges the sufficiency of the evidence in

support of his felony convictions. Specifically, he contends that the “highly

circumstantial evidence” was insufficient to establish his identity as the individual who

committed an armed robbery of the store or to establish that he was in possession of the

handgun found in the vehicle’s glove box. The State responds by arguing that the

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evidence was sufficient for a reasonable jury to infer that the Defendant was the

individual who used the handgun to commit an armed robbery of the store. We agree

with the State.

When the sufficiency of the convicting evidence is challenged on appeal, 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). It is not the role of this court to

reweigh or reevaluate the evidence, nor to substitute our own inferences for those drawn

from the evidence by the trier of fact. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002).

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)).

“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).

In support of his contention that the circumstantial evidence was insufficient to

establish his identity as the store’s armed robber, the Defendant cites, among other things,

the inability of either store employee to identify him, Mr. Taylor’s seeing the suspect

enter the passenger side of the vehicle, and the fact that the gun found in the glove box

was grey and brown rather than the black weapon described by Ms. Jeffries.

However, when viewed in the light most favorable to the State, the evidence was

more than sufficient for a rational jury to find beyond a reasonable doubt that the

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Defendant was the individual who committed the armed robbery of the store. Within a

very short time of the 9-1-1 call, the Defendant, dressed only in his long underwear, was

stopped after he was seen traveling at a high rate of speed in a vehicle similar to the

vehicle in which a suspect fled the store and from the same neighborhood into which the

suspect vehicle had fled. In addition, clothing was found in the vehicle that matched

clothing worn by the perpetrator, a dark grey gun with a black handle was found in the

vehicle’s glove box, and the exact amount of cash taken from the store was found in the

passenger’s pocket. It would not be unreasonable for the jury to infer that the Defendant

and his co-defendant changed positions in the vehicle at some point after the Defendant

ran to the passenger side to make his escape from the area. Moreover, the jury was

instructed on the doctrine of criminal responsibility, under which the Defendant could be

found guilty of armed robbery even if it was his co-defendant, rather them himself, who

actually entered the store and robbed the manager at gunpoint. We, therefore, conclude

that the evidence is sufficient to sustain the Defendant’s conviction for aggravated

robbery.

We further conclude that the evidence is sufficient to sustain the Defendant’s

conviction for convicted felon in possession of a firearm. Possession may be actual or

constructive. State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001). “Constructive possession

requires that a person knowingly have the power and the intention at a given time to

exercise dominion and control over an object, either directly or through others.” State v.

Copeland, 677 S.W.2d 471, 476 (Tenn. Crim. App. 1984). Constructive possession of a

firearm “may occur only where the personally unarmed participant has the power and

ability to exercise control over the firearm.” Key v. State, 563 S.W.2d 184, 188 (Tenn.

1978).

The Defendant argues that the State failed to present any proof “that the

[D]efendant had the power or ability at any time to exercise control over the firearm.” In

support, the Defendant relies on the fact that the gun was found in the glove box located

directly in front of the passenger’s, rather than the driver’s, seat of the vehicle. The

Defendant, however, ignores the fact that the armed robber, wearing clothing identical to

the clothing found in the rear of the van, was seen entering the passenger side of the van

immediately after the robbery. The Defendant also ignores testimony from Officer Gray

that the glove box was located within an arm’s reach of the driver’s seat of the vehicle.

From all the evidence, a rational jury could reasonably conclude that the Defendant was

in possession of the weapon found in the glove box. We, therefore, affirm the

Defendant’s convictions for aggravated robbery and convicted felon in possession of a

firearm.

II. Consecutive Sentences

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The Defendant also challenges the trial court’s imposition of consecutive

sentencing, arguing that the trial court abused its discretion in finding that he met the

“dangerous offender” criterion of the consecutive sentencing statute. The State argues

that the trial court properly imposed consecutive sentences because the Defendant, who

was on probation from a prior violent felony at the time of the instant offenses and who

held a gun directly to the face of the store manager during the robbery, qualified as a

dangerous offender whose behavior evidenced little or no regard for human life and no

hesitation in committing a crime when the risk to human life was high. We, again, agree

with the State.

A trial court may order multiple sentences to run consecutively if it finds by a

preponderance of evidence that one or more of the seven factors listed in Tennessee Code

Annotated section 40-35-115(b) applies, including the one that the trial court found to be

applicable in this case: the Defendant was a dangerous offender whose behavior indicated

little or no regard for human life and no hesitation about committing a crime in which the

risk to human life was high. See Tenn. Code Ann. § 40-35-115(b)(4). When the court

bases consecutive sentencing upon its classification of the defendant as a dangerous

offender, it must also find that an extended sentence is necessary to protect the public

against further criminal conduct by the defendant and that the consecutive sentences

reasonably relate to the severity of the offense committed. State v. Lane, 3 S.W.3d 456,

460-61 (Tenn. 1999); State v. Wilkerson, 905 S.W.2d 933, 937-38 (Tenn. 1995). We

review the trial court’s consecutive sentencing determinations for an abuse of discretion,

with a presumption of reasonableness afforded to the trial court’s decision. See State v.

Pollard, 432 S.W.3d 851, 860 (Tenn. 2013) (applying the same deferential standard

announced in State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012) to the review of a trial

court’s order of consecutive sentencing).

In ordering consecutive sentencing under the “dangerous offender” criterion of the

statute, the trial court found as a “particularly disturbing” fact that the Defendant

committed the instant crimes while on probation for a prior violent felony. The trial court

also made the requisite additional Wilkerson findings that confinement for an extended

period was necessary to protect society from further criminal conduct by the Defendant

and that the aggregate length of his sentences was reasonably related to his offenses. We

can discern no error in the trial court’s sentencing determinations. Accordingly, we

affirm the sentences imposed by the trial court.

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CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the judgments of the

trial court.

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ALAN E. GLENN, JUDGE

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