State of Tennessee v. Nicholas Maurice White

10/12/2021

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs July 27, 2021

STATE OF TENNESSEE v. NICHOLAS MAURICE WHITE

Appeal from the Criminal Court for Bradley County

No. 16-CR-245B Sandra Donaghy, Judge

___________________________________

No. E2020-01546-CCA-R3-CD

___________________________________

A Bradley County jury convicted the defendant, Nicholas Maurice White, of aggravated

robbery and aggravated assault, and the trial court imposed an effective sentence of ten

years’ incarceration. On appeal, the defendant challenges the sufficiency of the evidence

supporting his convictions. Upon our review of the record and the applicable law, we

affirm the judgments of the trial court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS,

P.J., and ROBERT W. WEDEMEYER, J., joined.

Andrew J. Brown, Cleveland, Tennessee (on appeal) and D. Mitchell Bryant, Athens,

Tennessee (at trial), for the appellant, Nicholas Maurice White.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant

Attorney General; Stephen D. Crump, District Attorney General; and Krista Oswalt and

Dallas Scott, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

Facts and Procedural History

The defendant and a co-defendant, Charles Cecil Vaughn, were charged in a three-

count indictment with the aggravated robbery of Richard Cole, attempted aggravated

robbery of Steve Hicks, and attempted aggravated robbery of Jade Underwood. The State

dismissed Count 3, and the case against the defendant proceeded to trial on the remaining

counts.

The evidence at trial showed that on July 15, 2015, Richard Cole1 asked his friend,

Steve Hicks, to ride with him to take Jade Underwood to Cleveland, Tennessee, to meet

her brother-in-law, the defendant. Mr. Cole picked up Mr. Hicks in his Ford pickup truck,

and the group traveled to Cleveland with Mr. Cole driving, Ms. Underwood in the front

passenger seat, and Mr. Hicks in the back seat.

When they arrived at the apartment complex where Ms. Underwood was to meet

the defendant, Mr. Hicks observed the defendant and another male, later determined to be

co-defendant Vaughn, standing in the parking lot, but he did not realize they were together.

The defendant walked up to the truck and talked to Ms. Underwood through the window,

but then he “jumped back and pulled a gun on [Mr. Cole], and said, don’t move. I want

your money.” Mr. Hicks was scared, as he had “never been robbed like that before.” Mr.

Cole held up his hands and, seemingly out of nowhere, co-defendant Vaughn appeared on

the driver’s side of the truck armed with what appeared to be a gun of some kind. Co-

defendant Vaughn held his gun against the driver’s window right at Mr. Cole’s head and

slowly opened the door. Mr. Cole retrieved around $800 from his pocket and asked co-

defendant Vaughn not to shoot him. Co-defendant Vaughn grabbed the money from Mr.

Cole’s hand and ran off. The defendant fired his gun in the air, told the group to leave the

area, and ran away in a different direction than co-defendant Vaughn.

Ms. Underwood called 911 and reported the incident. The group left the area but

later returned at a police officer’s direction to give a report. Mr. Hicks recalled the group

was “shook up” by the incident, elaborating “when that guy fired the shot it shook us both

up pretty good. You know, I didn’t really grasp the scope of it till he fired the weapon. It

was in the nighttime, so it was loud and it shook us up.” Mr. Hicks acknowledged he did

not have anything taken from him, and neither offender touched him in any way.

Officer Eric Jones with the Cleveland Police Department was one of the officers

who responded to the scene and searched the area for suspects. He received information

from an individual leading him to a nearby location where he encountered the defendant,

whom he identified as one of the suspects based on the description given by the victims.

A pat down of the defendant uncovered $411 in cash, a bar of Xanax, and a small caliber

revolver. The gun was loaded with the hammer cocked and contained five live rounds and

one spent shell casing. Co-defendant Vaughn was arrested at the apartment next door to

where the defendant was located. He had approximately $45 in his possession, and his

weapon, an airsoft gun, was found on top of an entertainment cabinet inside the apartment.

However, the airsoft gun was missing the usual orange tip at the end of the barrel to

differentiate it as a fake weapon.

1

Mr. Cole was deceased at the time of trial, having been the victim of a motor vehicle accident.

-2-

Detective Bill Parks with the Cleveland Police Department interviewed the

defendant after his arrest. The defendant told Detective Parks the gun possessed by co-

defendant Vaughn was a “BB or airsoft type gun.” The defendant said co-defendant

Vaughn gave him the real gun because Vaughn did not know how to use it. The defendant

claimed he did not know what co-defendant Vaughn did with the money taken from Mr.

Cole. He said that co-defendant Vaughn did not give him any of the stolen money and that

the $411 found in his possession was money he had before the robbery.

Following the conclusion of the proof, the jury convicted the defendant as charged

in Count 1 of aggravated robbery and of the lesser-included offense of aggravated assault

in Count 2.

Analysis

The defendant argues the evidence is insufficient to sustain his conviction for

aggravated robbery against Mr. Cole because there was no evidence he exercised control

over Mr. Cole’s property. He asserts the evidence is insufficient to sustain his conviction

for aggravated assault against Mr. Hicks because the State failed to establish he

intentionally or knowingly caused Mr. Hicks to reasonably fear imminent bodily injury.

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. 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

-3-

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).

As charged in this case, aggravated robbery is “[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.” Tenn. Code Ann. § 39-13-402(a)(1). “Robbery is the

intentional or knowing theft of property from the person of another by violence or putting

the person in fear.” Id. § 39-13-401(a). “A person commits theft of property if, with intent

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

the property without the owner’s effective consent.” Id. § 39-14-103(a).

The jury in this case received an instruction on criminal responsibility. “A person

is criminally responsible as a party to an offense, if the offense is committed by the person’s

own conduct, by the conduct of another for which the person is criminally responsible, or

both.” Tenn. Code Ann. § 39-11-401(a). Criminal responsibility for the actions of another

arises when the defendant, “[a]cting with intent to promote or assist the commission of the

offense, or to benefit in the proceeds or results of the offense, . . . solicits, directs, aids, or

attempts to aid another person to commit the offense[.]” Id. § 39-11-402(2). If convicted

under the criminal responsibility theory, defendants are “considered to be principal

offenders, just as if they had committed the crime themselves.” State v. Little, 402 S.W.3d

202, 217 (Tenn. 2013) (citing State v. Carson, 950 S.W.2d 951, 954 (Tenn. 1997)).

With regard to the aggravated robbery conviction, the evidence, when viewed in the

light most favorable to the State, shows that the defendant “pulled” a gun on Mr. Cole,

ordered him not to move, and demanded his money. Co-defendant Vaughn then

approached and pointed what appeared to be another deadly weapon at Mr. Cole’s head.

Mr. Cole asked co-defendant Vaughn not to shoot him and retrieved $800 from his pocket.

Co-defendant Vaughn grabbed the money from Mr. Cole’s hand and ran off. The

defendant then fired his gun in the air, told the group to leave the area, and fled the scene.

From this evidence, a jury could reasonably determine the defendant held Mr. Cole and the

other passengers at gunpoint in order to aid or assist co-defendant Vaughn in the

commission of the robbery. It was not necessary for the defendant to have personally

exercised control over the property. Thus, the evidence is sufficient to sustain the jury’s

verdict.

-4-

With regard to the aggravated assault conviction, we note a defendant commits an

assault when he “[i]ntentionally or knowingly causes another to reasonably fear imminent

bodily injury.” Tenn. Code Ann. § 39-13-101(a)(2). A defendant commits an aggravated

assault when the assault “[i]nvolve[s] the use or display of a deadly weapon.” Id. § 39-13-

102(a)(1)(A)(iii).

In the light most favorable to the State, there was sufficient proof for the jury to find

the defendant intentionally or knowingly caused Steve Hicks to reasonably fear imminent

bodily injury. Mr. Hicks testified he was “scared” when the defendant pulled a gun on Mr.

Cole and was “shook up” by the incident, particularly when the defendant fired his weapon.

The defendant need not to have actually pointed his gun at Mr. Hicks. See State v. Antonio

Henderson and Marvin Dickerson, No. W2015-00151-CCA-R3-CD, 2016 WL 3390627,

at *8 (Tenn. Crim. App. June 10, 2016) (upholding aggravated assault conviction where

the victim testified she was afraid and the defendant brandished a gun but never pointed it

at the victim), aff’d, 531 S.W.3d 687 (Tenn. 2017). Moreover, even if Mr. Hicks had not

testified as he did, the jury was entitled to infer his fear of imminent bodily injury. See

State v. Ricky Atkins, No. 03CO1-9812-CC-00432, 1999 WL 1019029, at *3 (Tenn. Crim.

App. Nov. 10, 1999), perm. app. denied (Tenn. Apr. 10, 2000) (holding the jury was

entitled to infer fearfulness when the victim ran away from the defendant and called the

police); State v. Gregory Whitfield, No. 02CO1-9706-CR-00226, 1998 WL 227776, at *2

(Tenn. Crim. App. May 8, 1998), perm. app. denied (Tenn. Dec. 7, 1998) (“The element

of ‘fear’ is satisfied if the circumstances of the incident, within reason and common

experience, are of such a nature as to cause a person to reasonably fear imminent bodily

injury.”). Furthermore, contrary to the defendant’s assertion, Mr. Hicks’ later willingness

to return to the scene at the direction of the police does not negate evidence showing he

feared imminent bodily injury during the defendant’s display and use of a gun.

Conclusion

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

trial court.

____________________________________

J. ROSS DYER, JUDGE

-5-