State v. Sims

909 S.W.2d 46, 1995 Tenn. Crim. App. LEXIS 392
CourtCourt of Criminal Appeals of Tennessee
DecidedMay 11, 1995
StatusPublished
Cited by120 cases

This text of 909 S.W.2d 46 (State v. Sims) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Sims, 909 S.W.2d 46, 1995 Tenn. Crim. App. LEXIS 392 (Tenn. Ct. App. 1995).

Opinion

OPINION

WELLES, Judge.

This is an appeal as of right from a conviction on a jury verdict of especially aggravated robbery. The trial court sentenced the Defendant to thirty-five (35) years in the Department of Correction. The Defendant brings two issues in this appeal. His first issue is whether there was sufficient evidence to convict him of especially aggravated robbery. His second issue is whether the trial court erred in its application of statutory enhancement factors to calculate the Defendant’s sentence. We modify the conviction to aggravated robbery and remand for sentencing.

The victim in this case was the hostess/cashier at the International House of Pancakes. On Easter Sunday, in 1992, the Defendant entered the International House of Pancakes around 9:00 p.m. and ordered a cup of coffee to go. When he paid for his coffee he asked the victim for change for a dollar, which she gave him. The Defendant returned around 11:00 pm. and ordered another cup of coffee. After the Defendant paid for the coffee, the victim closed the cash drawer. The Defendant then asked for change for a dollar. When the victim opened the cash drawer, the Defendant put his left hand in the drawer. The victim shut the drawer on the Defendant’s hand and held it with both hands. The Defendant pulled a gun out of his waistband and pointed it at the victim’s face. He told her not to move. She jumped back and took both her hands off the *48 cash drawer. At this point, according to the Defendant, he struck her and the gun accidentally discharged. The victim testified that she was struck in the face either by the gun itself or by a bullet, but that she was not sure. She fell to the floor. The Defendant yanked the cash drawer out of the register and dumped the money out. While the victim was lying on the floor she started to get up, and the Defendant pointed the gun at her and told her not to move. The Defendant took the money and left the restaurant. The victim was taken to Vanderbilt Hospital for treatment. She had a broken nose and a bruised cheekbone.

I.

The Defendant’s first issue is whether there is sufficient evidence to prove that the victim sustained “serious bodily injury” and, therefore, convict the Defendant of especially aggravated robbery as opposed to aggravated robbery. When an accused challenges the sufficiency of the convicting evidence, this court must review the record to determine if the evidence adduced during the trial was sufficient “to support the finding of the trier of fact of guilt beyond a reasonable doubt.” T.R.A.P. 13(e). This rule is applicable to findings of guilt predicated upon direct evidence, circumstantial evidence, or a combination of direct and circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn.Crim.App.1990).

In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.1978). Nor may this court substitute its inferences for those drawn by the trier of fact from circumstantial evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (Tenn.1956). This court is required to afford the State of Tennessee the strongest legitimate view of the evidence contained in the record as well as all reasonable and legitimate inferences which may be drawn from the evidence. State v. Herrod, 754 S.W.2d 627, 632 (Tenn.Crim.App.1988).

Questions concerning the credibility of the witnesses, the weight and value to be given the evidence, as well as all factual issues raised by the evidence, are resolved by the trier of fact, not this court. State v. Pappas, 754 S.W.2d 620, 623 (Tenn.Crim.App.1987). In State v. Grace, 493 S.W.2d 474 (Tenn.1973), the Tennessee Supreme Court said, “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.” Id. at 476.

Because a verdict of guilt removes the presumption of innocence and replaces it with a presumption of guilt, id., the accused has the burden in this court of illustrating why the evidence is insufficient to support the verdict returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.1982). This court will not disturb a verdict of guilt due to the sufficiency of the evidence unless the facts contained in the record and the inferences which may be drawn from the facts are insufficient, as a matter of law, for a rational trier of fact to find the accused guilty beyond a reasonable doubt. Matthews, 805 S.W.2d at 780.

Several witnesses testified at the trial. Some testified as to the victim’s injuries. The victim testified that she received a broken nose and a bruised cheekbone from the blow to her face. She testified that the next day both her eyes were black and blue and her nose was very swollen. She had a bump on her nose until the swelling went down. The victim received a laceration across the bridge of her nose and was told at the hospital to see a plastic surgeon about it. She saw the plastic surgeon twice, but no plastic surgery was needed. She also testified that her two front bottom teeth began to hurt a few days after the incident. She went to a dentist, and he removed her teeth. She now has a partial plate. The dentist did not testify at trial. The victim also testified that she missed five weeks of work and experienced extreme physical pain over her whole face, but especially to her nose.

The paramedic who treated and transported the victim from the restaurant to the hospital testified. He was with the victim for a total of eleven minutes. The victim told him she thought she had been shot during *49 the incident because the gun went off, and she immediately felt a stinging sensation. He did not notice an entrance wound or an exit wound, but he treated her as if she had been shot. He testified that she did not have any signs of a head injury. Her blood pressure, heart rate and pulse rate were all normal. He also testified that she was alert and oriented, and she had not been rendered unconscious. He testified that she had a hematoma on her left cheek. He documented the laceration as a gun shot wound on his “run ticket,” which the paramedics fill out for each call. He also noted on the run ticket that an empty shell casing from a bullet was on the counter next to the cash register.

The doctor who treated the victim at the hospital also testified. He stated that the victim came to the emergency room with a small laceration over the bridge of her nose, with a significant amount of swelling and bruising, which is indicative of a fractured nose. He said that there was no evidence of an entrance wound and no residue to indicate a close range gunshot wound.

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Cite This Page — Counsel Stack

Bluebook (online)
909 S.W.2d 46, 1995 Tenn. Crim. App. LEXIS 392, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sims-tenncrimapp-1995.