IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED MAY SESSION, 1999 September 10, 1999
Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9805-CR-00198 )
Appellee, )
)
) DAVIDSON COUNTY
VS. )
) HON . SETH N ORM AN
ERIC BERNARD HOWARD, ) JUDGE )
Appe llant. ) (Dire ct Ap pea l - Agg ravat ed R obb ery)
FOR THE APPELLANT: FOR THE APPELLEE:
THOMAS H. POTTER PAUL G. SUMMERS 100 Thompson Lane Attorney General & Reporter Nashville, TN 37211 LUCIAN D. GEISE
Assistant Attorney General 425 Fifth Avenu e North
Nashville, TN 37243
VICTOR S. JOHNSON
District Attorney General
JOHN ZIMMERMANN
Assistant District Attorney Washington Sq., Ste. 500
Nashville, TN 37201
OPINION FILED ________________________ AFFIRMED JERRY L. SMITH, JUDGE
OPINION
On October 26, 1995, the Davidson County Grand Jury indicted Appellant Eric B. Howard for two counts of aggravated robbery. After a jury trial on November 17–18, 1997, Appellant was convicted of two counts of aggravated robbery. After a sentencing hearing on December 17, 1997, the trial cou rt sentenced Appellant as a Range II multiple offender to consecutive terms of seventeen years for each conviction. Appellant challenges his convictions, raising the following issues:
1) whether the trial cou rt erred when it ruled that c ertain evidence was irrelevant and inadmissible;
2) whether the evidence was sufficient to support one of the aggravated robbery convictions; and 3) whether incom petency by re ason of addiction to a narcotic drug is a defense to a ggravated rob bery.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.
I. FACTS
Jianwei Cao te stified th at while he was walking to his office on the Vand erbilt University campus at 10:00 a.m. on August 15, 1995, he was approached by Appellant. When Appellant asked Cao where the admissions office was loca ted, Cao stated tha t he wou ld show him the w ay. Shortly thereafter, Cao and Appellant entered a narrow path between two buildings. Appellant then made a motion with his hand and s aid “Give me you r wallet . . . There is a gun . . . I show you.” Although Cao d id not actually see a gun, he looked at where Appellant had indicated he had a gun and saw “something pop out,” or “bump[] up.” Cao then gave Appellant his watch, his card case, and
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twelve dollars in ca sh from his pock et. Cao subsequently followed Appellant for a short distance and asked Appellant to return his card case because Cao was afraid that Appellant would look at his identification and learn his name and address. Appellant returned the card case, but he kept the watch and the cash.
Hoseung Lee testified that while he was walking to his office on the Vanderbilt University campus at approximately 10:15 a.m. on August 15, 1995, Appellant approached him and asked for directions to the admissions office. When Lee p retend ed tha t he did not understand English, Appellant said “Give me the money” and pulled up his shirt so that Lee could see the gun that was tucked in his waistband. Lee then ga ve App ellant his w allet and th ree dollars . Appellant looked through the wallet a nd gave it back to Le e.
Lee testified that after Appellant left, Lee ran to his office and contacted security. Approxima tely fifteen minutes later, Lee went to the security office and identified A ppellant a s the per son wh o had ro bbed h im.
Jennifer West testified that while she was wo rking as a security officer for Vand erbilt University at 10:20 a.m. on August 15, 1995, she received a report of an armed robbery. Shortly thereafter, West saw Appellant and noticed that he matched the description of the suspect. West and O fficer Robert Young then approached Appe llant and inform ed him that he m atched the desc ription of a suspe ct in an arm ed robb ery.
West testified that A ppellant was fairly calm at first, but he a ppeare d to become nervous when the officers que stioned him. Officer Young frisked
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Appellant for weapons and discovered tha t Appe llant ha d a gu n tuck ed in h is waistband. The gun had the appearance of a nine millimeter handgun, but the officers subsequently determined that it was a BB gun. West testified that Appellant did not appear to be intoxicated or high on any drugs. O fficer Robert Young also te stified th at App ellant did not appear to be intoxicated or high on drugs.
Detective Larry Reese of the Vanderbilt University Police Department testified that when Appellant was taken into custody, he initially provided the officers with a fa lse na me. H owev er, Ap pellant subsequently gave his correct name and apologized to the officers for being untruthful. Reese subsequently observed Appellant for two to four hours, and it did not appear that Appellant was under th e influenc e of alcoh ol or drug s.
Dete ctive H arold Haney of the Metropolitan Nashville Police Department testified that he interviewed Appellant on August 15, 1995, and the interview was recorded on videotape. Haney also testified that before the interview, he informed Appe llant of h is constitutional rights, and Appellant signed a waiver of rights form. A t this po int, the vid eotap e of Ap pellan t’s statement was played for the jury. 1
Haney testified that during the interview, Appellant did not appea r to have been under th e influenc e of drug s and d id not indica te that he was under the influence of alcoho l or drugs.
1 The record does not contain either the videotape of Appellant’s statement or a transcript of the statem ent.
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II. EXCLUSION OF EVIDENCE
Appellant conten ds that the trial court erred when it ruled th at certa in docum ents created by the Un ited State s Socia l Security A dministra tion were irrelevant and inadmissible. We conclude that this issue is waived.
The record ind icates tha t after the clo se of the State’s proof, Appellant sought to introduce certain docum ents pre pared b y the Soc ial Secur ity Administration that apparently related to a “recommendation of disability” for Appe llant. Although it is not clear, these documents were apparently created in 1993 or earlier. After viewing the documents, the trial court found that they were inadm issible because the “medical records that are three, and four, and five years prior to this particular time have no effect on this matter.” Appellant then failed to make a proffer of the documents for the record.
Because Appellant failed to make a proffer of the documents, it is not poss ible for us to review th em to d etermin e wheth er the trial co urt abus ed its discretion when it found that they were inadmissible because they were irrelevant. Appellant has waived this issue, and appellate review is precluded. See State v. Hall, 958 S.W.2d 679, 691 n.10 (T enn. 19 97); State v. Coker, 746 S.W.2d 167, 171 (T enn. 19 87); State v. Goad, 707 S.W.2d 846, 853 (Tenn. 1986).
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III. SUFFICIENCY OF THE EVIDENCE
Appellant contends that the evidence was insufficient to support his conviction for the aggravate d robbery of Cao. 2 Specifically, Appellant claims that the evidence was insufficient because there was no proof that Appellant’s actions ever put Cao in fear. We disagree.
When an a ppellant challenges the sufficiency of the evidence , this Court is obliged to review that challenge accord ing to certa in well-settled principles . A verdict of guilty by the jury, approved by the trial judge, accredits the testimony of the State ’s witness es and resolves all conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994). Although an accused is origina lly cloaked with a p resum ption o f innoc ence , a jury ve rdict rem oves th is presumption and replaces it with one o f guilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn . 1982). H ence, o n appe al, the burd en of pro of rests with Appellant to demonstrate the insufficie ncy of the convicting evidenc e. Id. On appeal, “the [S]tate is entitled to the strongest legitimate view of th e evide nce a s well a s all reaso nable and legitimate inferences that may be drawn therefro m.” Id. Wh ere the sufficiency of the evidence is contested on appeal, the relevant question for the reviewing court is whether any rational trier of fact could have found the accused guilty of every elem ent of the o ffense be yond a re asona ble dou bt. Jackson v. Virgin ia, 443 U.S . 307, 319 , 99 S.C t. 2781, 27 89, 61 L .Ed.2d 560 (1979). In con ductin g our e valuatio n of the convic ting evid ence , this Co urt is precluded from reweighing or reconsidering the evidenc e. State v. Morgan, 929
2 Appellant has not specifically challenged the sufficiency of the evidence as to his conviction for the aggravated robbery of Lee.
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S.W.2d 380, 383 (Tenn. Crim. App. 1996 ). Moreover, this Court may not substitute its own inferences “for those drawn by the trier of fact from circumstantial evidence.” State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Finally, Rule 13(e) of the Te nness ee Ru les of Ap pellate Procedure provides, “findings of guilt in criminal actions whether by the trial court or jury shall be se t aside if the evidence is insufficient to support the findings by the trier of fact beyo nd a rea sonab le doub t.”
In order to e stablish th at Appellant was guilty of the alleged aggravated robbery of Cao, the S tate had to prove beyond a reasonable doubt that Appellant intentio nally or knowingly took p roper ty from Cao b y violen ce or p utting C ao in fear by using a deadly weapon or display of an article used or fashioned to lead Cao to reas onab ly believe it was a dead ly weapo n. See Tenn. Code Ann. §§ 39- 13-401(a), -402(a)(1) (1997). We conclude that when the evid ence is viewe d in the light most favorable to the State, as it must be, the evidence was clearly sufficient for a rational jury to find beyond a reasonable doubt that Appellant had committed the offense of aggravated robbery of Cao.
Cao testified that after he and Appellant entered a narrow path between two buildings, Appellant made a motion with his hand and said “Give me your wallet . . . There is a gun . . . I show you.” Cao testified that although he did not actua lly see a gun, he looked at where Appellant had indicated that he had a gun and saw “something pop out” or “bump[] up.” When the prosecutor asked Cao how he felt at this p oint, Cao testified, “I’m s cared. I fea r.” Cao testified that he then ga ve App ellant his w atch, his ca rd case , and twe lve dollars.
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Appellant conte nds th at the a bove e videnc e was insuffic ient because Cao ’s testimony that he was afraid was not credible. Specifically, Appellant contends that Cao’s testimony that he subsequently followed Appellant and asked for the return of his card case indicates that he never really felt any fear of Appe llant. How ever, “[t]h e cred ibility of the witnes ses, th e weig ht to be given th eir testimony, and the reconciliation of conflicts in the evidence are matters entrusted exclus ively to the jury as the triers of fact.” State v. Cribbs, 967 S.W.2d 773, 793 (Tenn. 1998). The jury obviously believed Cao ’s testimony that he gave Appellant his property because he was afraid. In addition, althoug h the Sta te must show that a defendant took property from another person by use of violence or by putting the victim in fear to prove that the d efendant co mmitted rob bery, nothing in the robbery statutes requires the State to prove that th e victim remained in fear for some period of time after the defen dant to ok the victim’s property. T his issue has no merit.
IV. INCOMPETENCY BY REASON OF DRUG ADDICTION
Appellant contends that we should adopt a rule that incompetency by reason of add iction to a narc otic dru g relieve s a pe rson o f all resp onsib ility for his or her criminal conduct. We decline Appellant’s invitation to do so.
This Court has previously rejected the argument that addiction to drugs, standing alone, relieves a p erson o f respon sibility for crimin al condu ct. See State v. James Bailey Meador, No. 01C01-9011-C R-00291, 1992 W L 9521, at *4 (Tenn . Crim. A pp., Nas hville, Jan. 24 , 1992). T his Cou rt stated tha t
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The compulsion or urge inherently attendant to chemical substance addiction or depend ency m ay not be used as an excuse for criminal activity. . . . It is only if the mental state of the defendant rises to the level of legal insa nity may h is respon sibility for crime be excu sed.
Id., 1992 WL 9521, at *4.
In this case, the trial court ordered a m ental eva luation of A ppellant to determine his competency to stand trial and to determine whether a mental disease or defec t prevente d Appe llant from knowin g the w rongfu lness of his conduct at the tim e of the offens es. Th e Van derbilt U niversity Menta l Health Center subsequently evaluated Appellant and made the following findings:
After completion of the competency evaluation by Mitchell Parks, M.D., we have concluded that [Ap pellan t’s] con dition is such that he is capable of defending himself in a court of law. In making that determination, we foun d that [Ap pellant] un derstands the nature of the legal process; that he understands the charges pending against him and the conse quenc es that ca n follow; an d can a dvise cou nsel and participate in his own defense.
Upon com pletion of the m ental c ondit ion evalua tion pursu ant to T.C.A. 33-7-301(a), it is our opinion that at the time of the alleged offenses, [Appella nt] was not exhibiting a me ntal illne ss or d efect w hich w ould re sult in substantial impairment of his capacity to conform his conduct to the requirem ent of the la w.
In addition, th e defen se expe rt, Dr. Debra Doineau, testified that “drug usage or no drug u sage ,” it was possible that Appellant knew what he was doing when he robbed Cao and Le e. Further, Dr. Do ineau testified that it was po ssible for a person who had experienced the drug-related problems and other difficulties that Appellant had experien ced to form the intent to rob and then knowingly rob anothe r person .
The defense of insa nity is an affirmative defense that the defendant must establish by clear and convincing evidence. Tenn. Code Ann. § 39-11-501(a)
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(1997). Appellant failed to meet his burden of proving that he was insane at the time of the offenses. Indeed, rather than arguing that he did meet the burden, Appellant simply urg es us to adopt a rule that anyone who is addic ted to n arcotic drugs is automatically insane and is therefore not responsible for his or her criminal condu ct. This Court has previously rejected this proposed rule, and we see ab solutely no reason to adop t it now. Th is issue ha s no m erit.
Accordingly, the judgment of the trial court is AFFIRMED.
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JERRY L. SMITH, JUDGE
CONCUR:
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DAVID G. HAYES, JUDGE
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NORMA MCGEE OGLE, JUDGE