Assigned on Briefs July 25, 2017 at Knoxville
from the Criminal Court for Shelby County No. 14-00511 Glenn
Defendant, Darryl Robinson, was convicted by a Shelby County
Criminal Court jury of aggravated robbery, a Class B felony,
and there is a question as to whether his second conviction
was for possession of a firearm by one previously convicted
of a felony involving the use or attempted use of force,
violence, or a deadly weapon, a Class C felony, or a felon in
possession of a handgun, a Class E felony. The trial court
sentenced him to an effective term of sixteen years in the
Tennessee Department of Correction. On appeal, the Defendant
argues that: (1) the evidence is insufficient to support his
conviction for aggravated robbery; and (2) a witness's
reference to him by his nickname, "Trigger Man, "
was prejudicially erroneous. He also raises a number of
issues concerning his conviction for convicted felon in
possession of a firearm or handgun. After review, we affirm
the convictions for aggravated robbery and convicted felon in
possession of a handgun but remand for resentencing on the
convicted felon in possession of a handgun conviction.
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
Court Affirmed and Remanded for
Stephen C. Bush, District Public Defender; Phyllis L. Aluko
(on appeal) and Jim N. Hale, Jr. (at trial), Assistant Public
Defenders, for the appellant, Darryl Robinson.
Herbert H. Slatery III, Attorney General and Reporter; David
H. Findley, Senior Counsel; Amy P. Weirich, District Attorney
General; and Carla L. Taylor, Assistant District Attorney
General, for the appellee, State of Tennessee.
E. Glenn, J., delivered the opinion of the court, in which
Robert H. Montgomery, Jr., and J. Ross Dyer, JJ., joined.
E. GLENN, JUDGE.
Defendant was indicted for aggravated robbery and possession
of a firearm by one previously convicted of a felony
involving the use or attempted use of force, violence, or a
deadly weapon arising out of an encounter he and Demetrius
Davison had with the victim, Thomas Wright, on May 14, 2013.
trial, the victim testified that he was robbed by the
Defendant and Demetrius Davison on May 14, 2013. He said that
he and the Defendant had a disagreement prior to that day. On
that day, the victim left his house and started walking to a
friend's house nearby. He saw the Defendant and Mr.
Davison exiting a house, and the men called for him, but he
kept walking. The men caught up with the victim, the
Defendant told the victim that he had just gotten married,
and the victim offered congratulations. However, the
Defendant then told Mr. Davison "to go in [the
victim's] pocket." The victim shoved Mr. Davison to
get him to back off, and the Defendant pulled out a black .32
caliber revolver and pointed it at him. The victim feared for
his life and gave the Defendant everything from his pockets,
including $900 in cash, his phone, and his wallet. The victim
denied having any marijuana.
victim testified that the Defendant then told him to pull
down his pants and walk behind him and Mr. Davison towards
the community center. As they walked, the victim saw his
girlfriend, Glenda Jones, and her brother approaching him. He
ran towards them and asked to use Ms. Jones's phone
because he had just been robbed, while the Defendant and Mr.
Davison ran off. The victim believed that, from Ms.
Jones's point of view, she would not have been able to
see what had happened between him and the Defendant and Mr.
Davison. The victim called the police and waited by the
community center. The victim denied seeing the two men get
into a blue Dodge Durango immediately after the robbery,
explaining that he saw the men drive past him in a blue
Durango about twenty minutes later as he was talking to the
John Canter with the Memphis Police Department testified that
he responded to the robbery call in this case. The victim
provided the names of the suspects, both of whom he knew from
the neighborhood. Officer Canter recalled the victim's
telling him that the suspects left in a blue Dodge Durango,
but he did not recall the victim ever mentioning that he saw
the Defendant drive by while they were talking. Officer
Canter did not remember if the victim told him that the
suspects made the victim pull down his pants. Officer Canter
recalled the victim's telling him that the suspects took
$900 from him but did not recall him mentioning a cell phone
Davison, who was seventeen or eighteen years old at the time
of the incident, stated that the Defendant, who was
thirty-six or thirty-seven, was married to Mr. Davison's
aunt. Mr. Davison stated that he and the Defendant were
outside his aunt's house washing a car when the Defendant
said that he saw the victim and told Mr. Davison to come with
him to "buy some weed" from the victim. Mr. Davison
recalled that the Defendant also said that he was going to
rob the victim. When the victim pulled the marijuana from his
pocket to sell to the Defendant, the Defendant brandished a
black .32 caliber gun, pointed it at the victim, and demanded
the victim to "give [him] everything." The
Defendant told Mr. Davison to go through the victim's
pockets, but the victim pushed him away. However, because a
gun was pointed at him, the victim turned over his money,
marijuana, and phone. Mr. Davison recalled that the Defendant
told the victim to pull his pants down before he "pulled
the gun and got the money off [the victim]." Mr. Davison
did not see the victim with a wallet. Mr. Davison said that
he was afraid of the Defendant, did not want to rob anyone,
and did not receive any proceeds from the robbery.
Davison testified that he was arrested about a week later and
gave a statement to the police. He said that he was not
promised anything for his testimony but admitted that there
were no charges pending against him in the matter because the
victim did not appear at the preliminary hearing. Mr. Davison
admitted that he talked to the police for more than an hour
before giving his statement, but he denied that his statement
simply repeated what he had been told by the police. Mr.
Davison stated that the amount of money taken from the victim
did not appear to be $900 and admitted that he told the
police that he believed only $10 was stolen.
the proof, the jury returned a verdict in the first count of
guilty of aggravated robbery. For purposes of the convicted
felon in possession of a firearm count of the indictment, the
State and the Defendant stipulated that the Defendant had a
prior conviction for aggravated assault. The State then read
Count 2 of the indictment and the stipulation to the jury.
The trial court orally charged the jury that it had the
choice between two verdicts: it could find the Defendant
guilty or not guilty of "convicted felon in possession
of a firearm." The jury returned a verdict of guilty on
Count 2, utilizing the printed verdict form provided by the
court. The jury checked the box that stated: "We, the
jury, find the [D]efendant guilty of convicted felon in
possession of a handgun as charged in count 2 of Indictment
Sufficiency - Aggravated Robbery
Defendant challenges the sufficiency of the evidence
convicting him of aggravated robbery. He asserts that there
was contradictory proof as to whether the taking of the
victim's property occurred "by use of a gun" as
required by the statute or, instead, "prior to the
display of the gun."
considering this issue, we apply the rule that where
sufficiency of the convicting 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).
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. See 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 stated the rationale for this
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, 527 (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).
purposes of this case, aggravated robbery is defined as
"the intentional or knowing theft of property from the
person of another by violence or putting the person in
fear" that 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. §§ 39-13-401(a),
Defendant asserts that there was conflicting proof about when
the victim's pants were pulled down and that conflict
affects the timing of when the victim turned over his
property to the Defendant; the timing of when the victim
turned over his property raises questions concerning when
exactly the Defendant pulled a gun on the victim; and when
the Defendant pulled a gun on the victim affects whether the
victim's property was taken by use of a deadly weapon or
not. We have reviewed the testimony in detail and note that
it is not nearly as inconsistent as alleged by the Defendant
regarding when the victim's pants were pulled down.
Regardless, "inconsistencies or inaccuracies may make
the witness a less credible witness, [but] the jury's
verdict will not be disturbed unless the inaccuracies or
inconsistencies are so improbable or unsatisfactory as to
create a reasonable doubt of the [defendant]'s
guilt." State v. Radley, 29 S.W.3d 532, 537
(Tenn. Crim. App. 1999). Moreover, it makes little difference
to the outcome as to when the victim's pants were pulled
down because the victim clearly testified that the only
reason he turned over his wallet, phone, and cash to the
Defendant was because the Defendant pulled a gun on him.
Thus, in the light most favorable to the State, a rational
trier of fact could have found that the Defendant committed
Reference to Nickname
Defendant argues that Demetrius Davison's reference to
him by his nickname, "Trigger Man, " was
to trial, the Defendant moved to prevent Mr. Davison from
using the Defendant's nickname of "Trigger Man"
during his testimony, arguing that the nickname was
"highly prejudicial." The State argued that Mr.
Davidson only knew the Defendant by the nickname until the
initiation of the case. The trial court informed the State to
have its witnesses refrain from using the Defendant's
nickname. However, during the course of his testimony, Mr.
Davison used the Defendant's nickname four times.
Acknowledging that he did not lodge an objection, request a
curative instruction, or raise the issue in his motion for
new trial, the Defendant asserts that the reference to his
nickname justifies plain error relief.
order for us to find plain error: (a) the record must clearly
establish what occurred in the trial court; (b) a clear and
unequivocal rule of law must have been breached; (c) a
substantial right of the accused must have been adversely
affected; (d) the accused did not waive the issue for
tactical reasons; and (e) consideration of the error is
"'necessary to do substantial justice.'"
State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000)
(quoting State v. Adkisson, 899 S.W.2d 626, 641-42
(Tenn. Crim. App. 1994)). The presence of all five factors
must be established by the record before we will recognize
the existence of plain error, and complete consideration of
all the factors is not necessary when it is clear from the
record that at least one factor cannot be established.
Id. at 283.
record shows that Mr. Davison's testimony spanned thirty
pages of trial transcript. During his direct testimony, Mr.
Davison used the Defendant's actual name several times
but twice used the Defendant's nickname. The defense did
not object to the two occurrences, and the State did not
request a sidebar to admonish the witness; however, the State
appeared to make a point of repeatedly using the
Defendant's full name throughout its questioning of Mr.
Davison as a gentle reminder to not use the nickname. When
Mr. Davison relayed in detail the sequence of events leading
up to and including the robbery, he used the Defendant's
actual name. During cross-examination, Mr. Davison used the
Defendant's nickname two more times. The first time, Mr.
Davison started with the nickname "Trigger, " but
then appeared to catch himself and used the Defendant's
actual name. The second reference occurred in the same way,
with Mr. Davison first using the nickname and then correcting
himself and using the actual name.
discern no plain error in this case because there was no
breach of a clear and unequivocal rule of law, it is not
clear that the Defendant did not waive the issue for tactical
reasons, and consideration of the issue is not necessary to
do substantial justice. First, although, "[n]icknames
should generally be avoided, " State v. Zirkle,
910 S.W.2d 874, 886 (Tenn. 1995), there is no outright
prohibition against the use of nicknames. Second, it is
possible that the Defendant chose to withhold his objection
to the few instances when his nickname was used because Mr.
Davison quickly corrected himself and most often used the
Defendant's real name, and objecting would have drawn
attention to the response. Third, the use of the
Defendant's nickname was limited and quickly corrected
such that it did not saturate the trial to the extent that it
had any effect on the jury's verdict. The Defendant is
not entitled to plain error relief on this issue.
Issues Concerning Convicted Felon in Possession of a Firearm
Defendant's remaining issues involve his conviction in
Count 2 of the indictment for possession of a firearm by one
previously convicted of a felony involving the use or
attempted use of force, violence, or a deadly weapon or
convicted felon in possession of a handgun. The indictment
reads as follows:
[O]n May 14, 2013 in Shelby County, Tennessee, and before the
finding of this indictment, [the Defendant] did unlawfully
and knowingly possess a firearm, having been convicted of
Aggravated Assault, a felony, involving the use or attempted
use of a deadly weapon, on February 24, 2000, in Division 5
of Criminal Court of Shelby County, Tennessee, under docket
number 99-05649 and Aggravated Assault, a felony, involving
the use or attempted use of a deadly weapon, on February 24,
2000, in Division 5 of Criminal Court of Shelby County,
Tennessee, under docket number 99-05650 and Aggravated
Assault, a felony, involving the use or attempted use of a
deadly weapon, on February 24, 2000, in Division 5 of