State of Tennessee v. James Yates

07/07/2021

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs April 27, 2021, at Knoxville

STATE OF TENNESSEE v. JAMES YATES

Appeal from the Criminal Court for Shelby County

No. 18-02597 Chris Craft, Judge

___________________________________

No. W2020-00706-CCA-R3-CD

___________________________________

A Shelby County jury convicted the defendant, James Yates, of aggravated robbery and

assault. Following a sentencing hearing, the trial court imposed an effective sentence of

thirty years in confinement. On appeal, the defendant challenges the sufficiency of the

evidence to support his convictions and argues the trial court erred in denying his motion

to suppress. After reviewing the record and considering the applicable law, we affirm the

judgments of the trial court. However, we remand the case for entry of a judgment form

in count 2.

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

Remanded

J. ROSS DYER, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and

TIMOTHY L. EASTER, JJ., joined.

Phyllis L. Aluko, Shelby County Public Defender; Tony N. Brayton, Assistant Public

Defender (on appeal); and Michael Johnson and Angela Smith, Assistant Public Defenders

(at trial), for the appellant, James Yates.

Herbert H. Slatery III, Attorney General and Reporter; Samantha L. Simpson, Assistant

Attorney General; Amy P. Weirich, District Attorney General; and Jose Leon, Assistant

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

OPINION

Facts and Procedural History

On January 2, 2018, a masked man robbed the Dollar Tree at 3060 Thomas Street

in Memphis, Tennessee, and witnesses gave responding officers the offender’s physical

description. The defendant, whose appearance matched the description of the suspect, was

apprehended nearby, and the witnesses identified the defendant by way of a “show-up”

identification shortly after the crime. Prior to trial, the defendant filed a motion to suppress

the “show-up” identifications, and the trial court conducted a pre-trial hearing on December

2, 2019.

I. Motion to Suppress

In his motion to suppress, the defendant argued that the identifications were

obtained through an unnecessarily suggestive procedure and that the witnesses made their

identifications in the presence of each other. The State disagreed and presented the

following evidence supporting its position at the suppression hearing.

Officer Brandon Roberts with the Memphis Police Department (“MPD”) testified

he and his partner, Officer Timothy Brown, responded to an armed robbery call at the

Dollar Tree on January 2, 2018. Because they were writing parking tickets down the street

from the Dollar Tree at the time of the robbery, Officers Roberts and Brown arrived on the

scene within minutes of the 911 call. Witnesses at the store described the perpetrator as a

tall “male black wearing a mask.” Then, as Officers Roberts and Brown began searching

the area for suspects, they observed the defendant emerge from behind a closed TitleMax

store across the street from the Dollar Tree. The defendant was wearing only jeans and a

red t-shirt, which was suspicious because it was a cold night. Officers Roberts and Brown

attempted to approach the defendant, but he walked briskly toward a nearby Tops Bar-B-

Q and entered through the front door.

Because Officers Roberts and Brown were afraid the defendant would attempt to

flee through the back door, they pulled their squad car into the rear parking lot and entered

through the restaurant’s back door. When they entered the restaurant, the defendant, who

was walking toward them, quickly entered the restroom to his left. Officer Roberts opened

the restroom door and observed the defendant standing at the sink splashing water on his

face. Officer Roberts ordered the defendant to exit the restroom and frisked him for

weapons. The defendant was then placed in the back of the squad car while Officers

Roberts and Brown returned to the restaurant to search for evidence. Officer Roberts re-

entered the restroom and observed a small garbage can, with the trash bag askew. Upon

lifting the trash bag, Officer Roberts observed a small green and white potato chip bag

containing cash.

On cross-examination, Officer Roberts acknowledged he also saw another man

across the street from the Dollar Tree following the robbery. However, because the man

was talking on his cell phone and did not appear suspicious, Officer Roberts did not speak

with him. Officer Roberts also agreed that he relayed information to responding officers

-2-

at the Dollar Tree regarding the defendant and recovered evidence prior to the defendant’s

“show-up” identifications.

Officer Justin Murray with the MPD responded to the robbery call at the Dollar Tree

at 6:45 p.m., within one minute of the 911 call. Upon arriving at the scene, Officer Murray

immediately approached the nearest employee and asked for a description of the

perpetrator, and at 6:52 p.m., he was informed that a suspect matching the witness’s

description had been detained.

Approximately fifty minutes after the robbery, the defendant was brought to the

Dollar Tree, removed from the police car, and placed in the parking lot for a “show-up” or

“single shot” identification by the employees. During the identifications, the defendant

was illuminated with flashlights and spotlights, while the witnesses remained inside the

store.

On cross-examination, Officer Murray agreed that he did not separate the witnesses

upon arriving on the scene or at any time prior to the identifications. He confirmed that

the only time the witnesses were separated was when they stepped up to the store window

to identify the suspect. Officer Murray also acknowledged MPD policy was to separate

witnesses in order to ensure their identifications were not influenced by each other.

However, he stated that he could not force the witnesses to stay in one spot because they

had not committed a crime. Officer Murray also agreed that he discussed the fact that a

suspect had been apprehended and that a gun was found near the scene while the witnesses

stood a few feet from him.

Marcee Williams was working as a cashier at the Dollar Tree on the night of January

2, 2018. During the robbery, Ms. Williams was within arm’s reach of the perpetrator and

described him to police officers as tall with caramel colored skin. His face was covered,

and he had “a sweat suit type thing on.” When the defendant was brought to the store later

that evening, Ms. Williams identified him as the perpetrator. Although she had never seen

the perpetrator’s face, Ms. Williams knew the defendant was the same person because of

his height, skin tone, and clothing. At the hearing, the defendant stood up, and Ms.

Williams again identified him as the person who robbed the Dollar Tree that night.

On cross-examination, Ms. Williams agreed that her interaction with the perpetrator

lasted approximately sixty seconds and that his entire body was covered during the robbery

except for his eyes. She also agreed Jasmin Carroll, her co-worker, gave the initial

description of the suspect to the police, and Ms. Williams was standing next to Ms. Carroll

during that time. Officers did not separate Ms. Williams from the other witnesses or ask

them not to discuss the robbery, and Ms. Williams acknowledged she and Ms. Carroll

discussed what had happened while waiting for the suspect to be brought to the store. Ms.

-3-

Williams also testified that, prior to her identification, officers disclosed that a suspect was

discovered inside Tops Bar-B-Q and that items from the robbery had been recovered.

During the identification, Ms. Williams was standing next to Ms. Carroll and could hear

her identify the defendant as the perpetrator. Ms. Williams acknowledged that she was

unable to identify the defendant during his preliminary hearing because there were multiple

men sitting together, and she could not see their height or body type.

Jasmin Carroll was an assistant manager at the Dollar Tree on the night of the

robbery. Ms. Carroll was walking down an aisle when she noticed the defendant acting

suspiciously. As she approached the defendant, he gave her a bag and told her to put the

money from the cash register in it. Ms. Carroll took the bag to Ms. Williams and told her

to put the money from the cash register into the bag. The defendant, who was within arm’s

reach of Ms. Carroll, placed a gun against her hip while Ms. Williams put the money into

the bag.

Ms. Carroll gave a description of the perpetrator to the police, and when the

defendant was brought to the store that evening, Ms. Carroll identified him based on his

pants and his height. She acknowledged that she was unable to identify the defendant

during the preliminary hearing because everyone was sitting down.

On cross-examination, Ms. Carroll agreed that she and Ms. Williams were not

separated at any time following the robbery and were standing next to each other when

they gave the police the perpetrator’s description. She also acknowledged the police told

her that a possible suspect had been discovered in the restroom of Tops Bar-B-Q and that

officers had recovered the stolen money, a gun, and a mask. Although she could not recall

specifically whether Ms. Williams was standing next to her when she made her

identification, she acknowledged it was “chaos.”

After its review, the trial court denied the defendant’s motion to suppress the

identifications, finding that there were “imperative circumstances which necessitated the

show[-]up” and that the identifications occurred as an on the scene investigatory procedure.

The defendant then proceeded to trial.

II. Trial

The evidence produced at trial showed that on the evening of January 2, 2018, Ms.

Carroll was working at the Dollar Tree and observed the defendant, who was wearing a

hat, tan jacket, and camouflage mask, “hovering around . . . a stack of boxes.” Because the

defendant looked suspicious, Ms. Carroll walked toward him to see what he was doing.

After she passed the defendant, he approached her from behind, put a gun against her hip,

and demanded she fill a potato chip bag with the money from the cash register.

-4-

Ms. Carroll then approached Ms. Williams, who was working as a cashier, and

asked her to put the money in the potato chip bag. Ms. Williams asker her if she was

serious, and Ms. Carroll indicated she was. At that point, the defendant approached the

women and told them they had ten seconds to put the money in the bag. Ms. Williams

emptied the register and handed the defendant the bag, which contained approximately

$300. As the defendant left the store, he said, “Happy New Year, b*****s.” Ms. Carroll

then immediately called 911.

Officers Roberts and Brown responded to the 911 call and arrived on the scene

within minutes of the robbery. When they arrived at the store, other officers had obtained

a description of the perpetrator from the witnesses, and Officers Roberts and Brown began

to search the area for suspects. As they pulled out of the Dollar Tree parking lot, they

observed a man on the sidewalk talking on his cell phone. However, because the man did

not fit the description of “tall and thin” and did not appear to be fleeing the scene, Officers

Roberts and Brown did not approach him.

Across the street from the Dollar Tree, Officers Roberts and Brown observed the

defendant appear from behind a closed TitleMax store wearing only jeans and a red t-shirt.

When the defendant noticed the officers, he hurriedly walked away from them and entered

the Tops Bar-B-Q next door. As the defendant entered the restaurant, he was greeted by

an employee, Leann Collins. Ms. Collins asked the defendant how he was doing and

commented that it was too cold outside for him to be without a jacket. The defendant told

Ms. Collins that he was going to place an order but wanted to use the restroom first, and

Ms. Collins pointed him in the direction of the restroom.

Meanwhile, Officer Roberts was concerned the defendant would attempt to flee out

of the back door, so he pulled the squad car into the rear parking lot, and he and Officer

Brown entered the restaurant through the back door. When the defendant saw the officers,

he immediately went into the restroom, which was to his left. Officer Roberts opened the

door and observed the defendant drinking water from the sink. Officer Roberts asked the

defendant to come into the hallway, frisked him for weapons, and placed him in the back

of the squad car. Officer Roberts then returned to the restroom and noticed the trash bag

in a small garbage can was askew. He picked up the trash bag and saw a small potato chip

bag full of cash in the bottom of the garbage can. Additionally, a BB gun was located

under the ice machine near the restroom.

Because Officer Roberts was confident the defendant was involved in the robbery,

he returned to the area where the defendant was first spotted and discovered a glove and

jacket, which matched the description from the witnesses, in a dumpster behind the

-5-

TitleMax. In a nearby vacant lot, Officer Roberts also located a red hat and camouflage

mask lying on the ground.

Approximately fifty minutes after the robbery occurred, Officers Roberts and

Brown were asked to bring the defendant to the parking lot of the Dollar Tree to perform a

“show-up.” The defendant, who was handcuffed, stood outside the squad car while the

witnesses remained inside the store. Officers used spotlights and flashlights to illuminate

the defendant, and the witnesses took turns stepping up to the front window to identify him.

Ms. Carroll was able to identify the defendant because he was wearing the same jeans as

the perpetrator and was tall. Likewise, Ms. Williams knew he was the same person because

he was wearing some of the same clothing and was the same height and body type.

Detective Nick Segich with the MPD’s Violent Crimes Unit was assigned to lead

the investigation. The day following the robbery, Detective Segich presented Ms. Collins

with a photographic lineup containing the defendant. Although Ms. Collins identified

someone other than the defendant in the lineup, surveillance video taken from the Tops

Bar-B-Q confirmed that it was indeed the defendant who had entered the restaurant that

night.

Following the defendant’s arrest, Lindsey Flores, a criminalist with the MPD,

obtained buccal swabs from the defendant for comparison with the evidence collected from

the crime scene. Special Agent Christie Smith, a DNA analysis expert and forensic

scientist with the Tennessee Bureau of Investigation (“TBI”), analyzed several pieces of

evidence found at the crime scene, including the BB gun, hat, glove, and face mask. Her

examination of the BB gun revealed the presence of a DNA profile which was consistent

with a mixture of two individuals, one of which was male. However, because the profile

was limited, Agent Smith was unable to include or exclude any individuals. The hat and

glove contained a mixture of at least three individuals, with the major contributor profile

matching the defendant’s DNA profile. Likewise, the face mask contained a mixture of at

least two people, with the major contributor profile matching the defendant.

On cross-examination, both Ms. Carroll and Ms. Williams agreed they were not

separated by police following the robbery, including the time during which they made their

identification of the defendant. They also agreed police officers informed them that a

possible suspect had been detained at the Tops Bar-B-Q prior to being asked to identify the

defendant. Although both Ms. Williams and Ms. Carroll agreed they were unable to

identify the defendant at the preliminary hearing, Ms. Carroll stated she could not see

anyone’s height and build because they were sitting down, and Ms. Williams testified there

were several people to choose from and, because no one was asked to stand up, she could

not determine their height or weight.

-6-

In addition to the testimony of Ms. Carroll and Ms. Williams, the State

presented the testimony of Ms. Roshundra Mull and Ms. Makeva Jeffries. Ms. Mull

worked at the Thomas Street Dollar Tree store as the store manager. On January 2,

2018, Ms. Carroll called Ms. Mull to inform her the robbery. Upon arriving at the

store, Ms. Mull discovered that the defendant had stolen between $240 and $300 in

cash. After speaking with the police about the robbery and providing them with the

recording from the store’s security cameras, Ms. Mull went across the street to the Tops

Bar-B-Q restaurant, where officers asked her some additional questions and returned to her

a portion of the money stolen from the Dollar Tree store. When the defendant was brought

back to the Dollar Tree store, Ms. Mull was able to identify him as the robber based on the

recording from the store’s security cameras.

Ms. Makeva Jeffries recalled that on January 2, 2018, she was “at Dollar Tree with

[her] daughter shopping when a man came up to the register to rob the place.” She

described the robber as an African American man with a “tall, thin build.” The robber’s

“face [was] covered with a [camouflage] mask and a skull hat” so that Ms. Jeffries could

only see his eyes. After Ms. Carroll told Ms. Williams to put the money in the defendant’s

bag, Ms. Jeffries “took [her] daughter and pushed her toward the back of the store.” Ms.

Jeffries could not determine whether the robber had a weapon, but she could tell the

situation was serious. She identified the hat and camouflage mask the defendant had been

wearing. She also later identified the defendant when he was returned to the Dollar Tree

store for the show-up identification.

The defendant testified on his own behalf, asserting that on the night of the robbery

he was driving his sister’s car when it began to experience engine problems. He pulled

over near the Tops Bar-B-Q to allow the car to cool down, and as he was looking at his

phone, a man wearing a long, dark sweater knocked on his window and asked for a hat.

The defendant had an extra hat on his dashboard, so he handed the man the red beanie. The

man thanked him and began walking toward the Dollar Tree.

Approximately ten minutes later, the defendant saw a man, who may have been the

same person who asked for the hat, run behind the TitleMax. As he was running, the man

dropped something. When the defendant could no longer see the man, he got out of the

car and observed a brown sack on the ground. He opened the sack and discovered a gun

and a small bag. He placed the bag in his back pocket and the gun in his waistband.

Because he did not intend to be out of the car for long, the defendant did not put his coat

on before exiting the car. As he was walking around the corner, he saw the man near a

dumpster. The man opened the lid, but the defendant was unable to see if the man placed

anything in the dumpster.

-7-

The defendant began walking towards the Tops Bar-B-Q and saw a car approach

him but did not realize it was a police car until he was entering the restaurant. The

defendant knew he needed to get rid of the items he had picked up because he did not want

to be caught with a gun that was not his. The defendant asked the woman behind the

counter where the restroom was, and as he walked down the hall, he placed the gun under

the ice machine. When he entered the restroom, he took the bag from his back pocket and

placed it in the trash can. He was washing his hands when police officers entered the

restroom and patted him down.

The defendant was then placed in the back of the squad car and remained there until

he was taken across the street to the Dollar Tree. At that time, Officer Roberts had the

defendant step out of the car and shined a light in his face. The defendant denied having

anything to do with the robbery and insisted he was telling the truth about that night. The

defendant acknowledged having a prior conviction for aggravated robbery in 1982 when

he was eighteen years old.

On cross-examination, the defendant denied knowing there was money in the bag

that he placed in the trash can. When asked about the glove and face mask, the defendant

insisted they were tangled together with the red beanie, and he must have handed all of

them to the man who knocked on his window.

Following deliberations, the jury found the defendant guilty of aggravated robbery

as charged in the indictment and the lesser-included offense of assault, and the trial court

subsequently sentenced the defendant to an effective sentence of thirty years in

confinement at 100%. The defendant filed a motion for new trial which the trial court

denied. This timely appeal followed.

Analysis

On appeal, the defendant argues that the trial court erred in denying his motion to

suppress and that the evidence presented at trial was insufficient to support his convictions.

The State contends that the trial court properly denied the motion to suppress and that the

evidence is sufficient.

I. Motion to Suppress

The defendant challenges the trial court’s denial of his motion to suppress the

witnesses’ identifications during a pre-trial show-up. Specifically, the defendant argues

the identifications were made “under circumstances that focused the witnesses’ attention

on him as the person the police believed committed the robbery.” The State responds that

the trial court correctly concluded the show-up was proper.

-8-

Suppression issues on appeal are subject to a well-established standard of review.

Appellate courts are bound by a trial court’s findings of facts determined after a

suppression hearing unless the evidence preponderates against them. State v. Odom, 928

S.W.2d 18, 23 (Tenn. 1996); State v. Matthew T. McGee, No. E2011-01756-CCA-R3-CD,

2012 WL 4017776, at *2 (Tenn. Crim. App. Sept. 13, 2012). “Questions of credibility of

the witnesses, the weight and value of the evidence, and resolution of conflicts in the

evidence are matters entrusted to the trial judge as the trier of fact.” Odom, 928 S.W.2d at

23. Appellate courts should consider the entire record, affording the prevailing party “the

strongest legitimate view of the evidence and all reasonable inferences drawn from that

evidence.” Matthew T. McGee, 2012 WL 4017776, at *2 (citing State v. Hicks, 55 S.W.3d

515, 521 (Tenn. 2001)); see also State v. Sanders, 452 S.W.3d 300, 306 (Tenn. 2014).

However, applying the law to the factual findings of the trial court is a question of law,

which is reviewed de novo on appeal. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

A witness’s identification of a suspect “must not have been conducted in such an

impermissibly suggestive manner as to create a substantial likelihood of irreparable

misidentification.” State v. Cribbs, 967 S.W.2d 773, 794 (Tenn. 1998). Although this

Court has noted that “[o]ne-to-one lineups are condemned and their use is highly suspect,”

show-up identifications remain permissible under the proper circumstances. Marsh v.

State, 561 S.W.2d 767, 769 (Tenn. Crim. App. 1977) (citing Stovall v. Denno, 388 U.S.

293 (1967)). Generally, show-up identifications are prohibited unless “imperative

circumstances . . . necessitate a show[-]up, or . . . the show[-]up occurs as an on-the-scene

investigatory procedure shortly after the commission of the crime.” State v. Thomas, 780

S.W.2d 379, 381 (Tenn. Crim. App. 1989) (internal citations omitted). “It is the likelihood

of misidentification that violates due process and renders [an] identification inadmissible.”

State v. Philpott, 882 S.W.2d 394, 400 (Tenn. Crim. App. 1994).

In determining whether an out-of-court identification is so impermissibly suggestive

as to violate due process, trial courts should consider the totality of the circumstances. Neil

v. Biggers, 409 U.S. 188, 199 (1972). The relevant factors include

the opportunity of the witness to view the criminal at the time of the crime,

the witness’ degree of attention, the accuracy of the witness’ prior description

of the criminal, the level of certainty demonstrated by the witness at the

confrontation, and the length of time between the crime and the

confrontation.

Id. at 199-200. If a show-up identification is so impermissibly suggestive that it violates

due process, the show-up identification and the in-court identification are inadmissible. Id.

at 199.

-9-

In the present case, the “show-up” identifications, while clearly suggestive, were

not unnecessarily so because they were part of an ongoing and uninterrupted investigation

conducted close in time and location to the crimes. The police responded within one minute

of the 911 call and approximately eight minutes later observed the defendant, who matched

the description of the perpetrator, behind a closed business across the street from the Dollar

Tree. The defendant was not wearing a coat, which was suspicious because it was a cold

night. When the defendant observed the police car, he quickly walked to the nearby Tops

Bar-B-Q and hid in the restroom. He was detained less than ten minutes after the 911 call,

and both the BB gun and the potato chip bag containing the stolen money were found

within feet of the defendant’s location. Approximately fifty minutes after the robbery, the

defendant was brought back to the Dollar Tree, and both Ms. Williams and Ms. Carroll

identified him as the perpetrator. Ms. Williams identified the defendant by his height,

build, and clothing, and Ms. Carroll identified him by his height and clothing.

The “show-up” identifications, which were conducted at the Dollar Tree within an

hour of the robbery, were used as an on the scene investigatory tool by law enforcement

and were necessary to determine the continued course of their investigation. Because the

identifications were necessary to the officers’ immediate investigation, the trial court did

not err in determining that the evidence could be admitted without offending due process

despite the fact they may have been suggestive. Additionally, at trial, the defendant was

able to demonstrate through cross-examination that the witnesses’ identifications were

based only on height, weight, and clothing. The jury was aware that the witnesses never

saw the defendant’s face and could not identify him by his facial features. We conclude

the trial court properly denied the defendant’s motion to suppress the pretrial and in-court

identifications, and the defendant is not entitled to relief on this issue.

II. Sufficiency

The defendant argues the evidence at trial is insufficient to support his convictions

for aggravated robbery and assault. Although the defendant does not dispute a robbery

occurred, he argues the State failed to establish his identity as the perpetrator. Specifically,

the defendant contends the only evidence linking him to the robbery is the “unreliable

identifications made by the witnesses.” The State contends the evidence is sufficient to

support the defendant’s convictions.

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) (emphasis in

original); see also Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether

- 10 -

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. 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 following 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, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523

(Tenn. 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).

“The identity of the perpetrator is an essential element of any crime.” State v. Rice,

184 S.W.3d 646, 662 (Tenn. 2006) (citing State v. Thompson, 519 S.W.2d 789, 793 (Tenn.

1975)). The burden is on the State to prove the identity of the defendant as the perpetrator

beyond a reasonable doubt. State v. Cribbs, 967 S.W.2d 773, 779 (Tenn. 1998). The

identification of the defendant as the perpetrator is “a question of fact for the jury upon its

consideration of all competent proof.” State v. Bell, 512 S.W.3d 167, 198 (Tenn. 2015)

(citing State v. Thomas, 158 S.W.3d 361, 388 (Tenn. 2005)).

As charged in this case, “[r]obbery is 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). An aggravated robbery is a robbery “[a]ccomplished with a deadly weapon

or by display of any article used or fashioned to lead the victim to reasonably believe it to

be a deadly weapon.” Id. § 39-13-402(a)(1). Assault occurs when a person intentionally

or knowingly causes another to reasonably fear imminent bodily injury. Id. § 39-13-

101(a)(2).

- 11 -

Here, the evidence showed that the defendant, armed with a BB gun, entered the

Dollar Tree and demanded the money from the cash register. Both Ms. Williams and Ms.

Carroll identified the defendant as the perpetrator in a “show-up” conducted within one

hour of the robbery. At both the suppression hearing and trial, Ms. Williams and Ms.

Carroll again positively identified the defendant as the man who robbed the Dollar Tree

and did not waver in their identifications despite vigorous cross-examination by the

defendant. Additionally, the defendant was identified by Ms. Mull and Ms. Jefferies.

Although the defendant argues the identifications were unreliable because the witnesses

did not see the perpetrator’s face and were unable to identify the defendant at the

preliminary hearing, the jury resolved any inconsistencies in testimony in favor of the State,

and we will not second-guess the jury in the resolution of any conflicts in the proof. State

v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). Moreover, near the area where the

defendant was located, officers discovered clothing, including a jacket, hat, mask, and

glove, which matched the description given by witnesses, and the hat, mask, and glove

contained the defendant’s DNA. Accordingly, this evidence is sufficient to support the

defendant’s conviction, and the defendant is not entitled to relief on this issue.

III. Judgment Form

Finally, we note that the record does not include a judgment form for count 2. At

the sentencing hearing, the trial court imposed a sentence of eleven months, twenty-nine

days for count 2 to be served concurrently with count 1. Therefore, the case must be

remanded, and the trial court should, on remand, enter a judgment form reflecting the

disposition of count 2. See State v. Davidson, 509 S.W.3d 156, 217 (Tenn. 2016) (requiring

a trial court to prepare a uniform judgment document for each count of the indictment).

Conclusion

For the aforementioned reasons, the judgments of the trial court are affirmed.

However, we remand this case for entry of a judgment in count 2 as specified in this

opinion.

____________________________________

J. ROSS DYER, JUDGE

- 12 -