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State v. Weilacker

Court of Criminal Appeals of Tennessee, Nashville

December 8, 2017


          Session February 14, 2017

         Appeal from the Circuit Court for Montgomery County No. 40700673 William R. Goodman, III, Judge

         Defendant, Stephano Lee Weilacker, was found guilty by a Montgomery County jury of especially aggravated kidnapping and aggravated robbery. He received an effective twenty-year sentence to be served consecutively to a previous sentence. In this, Defendant's third direct appeal, he argues: that the evidence was insufficient; that the trial court permitted a reversible constructive amendment to the indictment; that the trial court erred by failing to instruct the jury as provided by White; that the trial court erred by denying his motion to suppress evidence found in his vehicle; that the State committed prosecutorial misconduct during closing arguments, and that consecutive sentencing was improper. We find that all of Defendant's issues, except for the issues concerning the amendment to the indictment and the jury instruction, have been previously addressed by this court in Defendant's two prior appeals and cannot be reconsidered. We find that the issue concerning the indictment is waived and that the trial court was not required to instruct the jury in accordance with White. Therefore, Defendant's convictions are affirmed.

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

          Richard C. Strong, Nashville, Tennessee, for the appellant, Stephano Lee Weilacker.

          Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Counsel; John Wesley Carney, Jr., District Attorney General; and Robert Nash, Assistant District Attorney General, for the appellee, State of Tennessee.

          Thomas T. Woodall, P.J., delivered the opinion of the court, in which Robert W. Wedemeyer and Timothy L. Easter, JJ., joined.




         This is Defendant's third direct appeal in this case. The facts of this case, as found by this court in Defendant's first direct appeal, State v. Stephano L. Weilacker, No. M2010-00497-CCA-R3CD, 2011 WL 743416, at *1-2 (Tenn. Crim. App. Mar. 3, 2011), which will be referred to as Weilacker I, are as follows:

On June 30, 2006, the Triangle Kwik Stop in rural Montgomery County was staffed by Brandi Perry. Ms. Perry observed two young men come into the store. One of them was armed with a pistol. The man pointed the gun at her, then pointed the gun at Frank Lavarre, a vendor who was stocking a display at the store. The man demanded money and cigarettes. He ordered Mr. Lavarre to lie on the floor. Ms. Perry complied with the request, handing over money and cigarettes. The man then shot Mr. Lavarre in the leg.
The men left the market and jumped into the back of a large white car. Ms. Sandra Lewis, who was shopping next door at the Food Lion, saw two young African-American men leave the market laughing and running. Ms. Lewis was alarmed by the situation, so she wrote down the license plate number of the car and called the police.
Several days later, Appellant and David Selby were arrested while riding in Appellant's white Mercury Grand Marquis. Police Officer Scott Beaubien initiated a traffic stop of Appellant's vehicle. The weapon used in the Triangle Kwik Stop robbery was found in the car. Mr. Selby's fingerprints were found on the pistol.
Appellant, Jacobi K. Allen, and David Selby were indicted by the Montgomery County Grand Jury for aggravated robbery and especially aggravated kidnapping for their involvement in the Triangle Kwik Stop robbery.
At trial, Mr. Selby testified that Appellant called him on the day of the robbery and asked him to ride around with him and to go buy some fireworks. Appellant was driving his white Mercury Grand Marquis. When Mr. Selby got into the car, he stated that there were two other younger African-American males in the back seat. As the group passed the Triangle Kwik Stop market, Appellant asked the men in the back seat if they wanted to make a little money. Appellant told them what to do and provided a pistol to the men. After the men robbed the market, the money and cigarettes were divided between Appellant and the two men. Mr. Selby admitted that his fingerprints were found on the pistol that was used in the robbery. He explained that when police initiated the traffic stop of the vehicle, Appellant handed Mr. Selby the weapon. Mr. Selby then handed the weapon back to Appellant, who placed it under the seat.
Appellant presented the videotape from the store security camera in support of his defense. The videotape showed that the armed robbery was committed by two men other than Appellant.

Weilacker I, at *1-2.

         In Weilacker I, Defendant argued that the evidence was insufficient to support his convictions; that the trial court failed to properly charge the jury with lesser-included offenses; and that the trial court improperly ordered consecutive sentencing. This court determined that the trial court improperly ruled on an untimely motion for new trial. This court noted that trial counsel had filed for an extension to file the motion for new trial, but it was filed more than thirty days after the entry of the judgments. This resulted in Defendant's notice of appeal also being untimely.

         Defendant's sufficiency and sentencing issues were considered on the merits. In his sufficiency argument, Defendant argued that the accomplice testimony of co-defendant David Selby was not sufficiently corroborated. This court summarized the corroborating evidence and determined that the "jury clearly determined that the evidence introduced at trial corroborated Mr. Selby's testimony and independently connected [Defendant] with the crimes." Id. at *5. As for sentencing, this court found that the length of Defendant's sentences of ten years for aggravated robbery and twenty years for especially aggravated ...

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