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State v. Wilkerson

Court of Criminal Appeals of Tennessee, Jackson

November 7, 2016


          Assigned on Briefs September 7, 2016

         Appeal from the Criminal Court for Shelby County No. 14-03148 W. Mark Ward, Judge

          Barry W. Kuhn (on appeal) and Amy G. Mayne (at trial), Memphis, Tennessee, for the appellant, Johnny Wilkerson.

          Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel; Amy P. Weirich, District Attorney General; and Ann L. Schiller, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert W. Wedemeyer, J., delivered the opinion of the court, in which Norma McGee Ogle and D. Kelly Thomas, Jr., JJ., joined.



         I. Facts

         Margaret Robinson and Jason Eschhofen were robbed at gunpoint as they left Ms. Robinson's apartment on January 24, 2014. For his role in the incident, a Shelby County grand jury indicted the Defendant for two counts of aggravated robbery. At trial, the parties presented the following evidence: Ms. Robinson testified that her apartment was located near the University of Memphis campus in Memphis, Tennessee. In the early evening hours of January 24, 2014, she and her boyfriend, Jason Eschhofen, were leaving her apartment when an "average-sized African American man" approached them in a "hurried fashion." Ms. Robinson did not take much notice of the man until he pointed a small black gun at the couple and ordered them to sit on the ground between two cars. The man demanded Ms. Robinson's and Mr. Eschhofen's wallets and cell phones. The couple complied with these demands, and the man threatened to kill them if they moved.

         Ms. Robinson testified that, upon seeing the small black gun, she was "terrified" that she was going to die and also going to watch Mr. Eschhofen be killed. She further described the perpetrator as wearing a gray and white striped hoodie. After taking the victims' wallets and cell phones, the man again threatened the couple saying, "[I]f you move I will shoot you." Ms. Robinson recalled being fearful that the perpetrator was waiting nearby to shoot the couple once they got up from between the cars. Ms. Robinson surveyed the ground underneath the nearby cars and, when she did not see anyone, the couple got up quickly and ran to the apartment complex. One of Ms. Robinson's neighbors was leaving at the time, and Mr. Eschhofen used the neighbor's cell phone to notify police.

         Ms. Robinson testified that she was "in shock" following the incident and felt "very shaky." She cried hysterically and contacted her mother to cancel her credit cards while Mr. Eschhofen spoke with the police on the cell phone. Ms. Robinson said that she had $10 in cash and credit cards in her wallet at the time it was stolen. The perpetrator also took her blue Samsung phone, which police later returned to her in working condition.

         The night of the incident, Ms. Robinson provided police officers with a description of the robber, and the following day, she viewed a photographic lineup at the police station. Ms. Robinson was unable to identify the robber in the first lineup or a second lineup shown to her several days later. On January 29, 2014, Ms. Robinson returned to the police station to view a third photographic lineup and "pretty quickly" identified the robber.

         After Ms. Robinson identified the robber, a police officer returned her cell phone and wallet to her. The wallet contained "the beginning of one of [her] credit cards" and her driver's license. Several months later, Ms. Robinson testified at a preliminary hearing in this case and, during the hearing, identified the Defendant as the robber. She further identified the Defendant in court during the trial as the man who had taken her wallet and cell phone on January 24, 2014.

         On cross-examination, Ms. Robinson testified that, during the incident, the robber wore the hoodie over his head covering his hair. She stated that she tried to look at his face but was more focused on the gun he held. She estimated that the entire encounter lasted about thirty seconds and said that it was nighttime. She described there being one light in the parking lot, and it was not near where she and Mr. Eschhofen were ordered to sit between cars.

         Jason Eschhofen's testifimony about the robbery was consistent with Ms. Robinson's testimony. Mr. Eschhofen testified that he was "very scared" during the encounter but compliant with the robber's demands due to concern for their safety. Mr. Eschhofen gave the robber his cell phone and wallet that contained identification cards, credit cards, and $40 to $50 in cash. Mr. Eschhofen confirmed that he spoke with the police on the telephone about the robbery and provided their location. When the police arrived, five to ten minutes later, Mr. Eschhofen provided a statement about the robbery and a ...

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