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State v. Moss

Court of Criminal Appeals of Tennessee, Jackson

January 5, 2018


          Session July 11, 2017

         Appeal from the Criminal Court for Shelby County No. 14-06090 W. Mark Ward, Judge

         The Defendant, Trevial Moss, was convicted by a Shelby County jury of aggravated robbery and sentenced to twelve years' confinement. In this direct appeal, the Defendant argues that (1) the evidence is insufficient to support his conviction; (2) the verdict is contrary to the law and weight of the evidence; (3) the State withheld discovery material in violation of Brady v. Maryland, 373 U.S. 83, 87 (1963); and (4) the trial court erred in imposing the maximum sentence. Upon our review, the judgment of the trial court is affirmed.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

          Terita Hewlett, Memphis, Tennessee, for the appellant, Trevial Moss.

          Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Gavin Smith and Tyler Parks, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Camille R. McMullen, J., delivered the opinion of the court, in which Norma McGee Ogle and D. Kelly Thomas, JJ., joined.



         The Defendant's trial began on February 29, 2016, and continued through March 2, 2016. Phillip Finney, the victim, testified that on August 7, 2014, he was "assaulted and pistol whipped and robbed by two individuals." The victim was walking down the street and encountered a woman named "Latonya" or "Tonya" whom he had previously seen arguing with two men. He asked the woman where he could purchase marijuana and crack cocaine. The woman walked away, spoke with two men, and returned. She told the victim one of the men's brother had some, so they began walking down the street together. The victim leaned over to tie his shoe and was struck in the left eye with a handgun. He fell to the ground and "the biggest" or "tallest" man put a gun to the back of his head and told him not to move. The other man "tossed [the victim] from [his] left to [his] right going inside [his] pockets and removed $175" from his pocket. The men ran away, and the victim was able to gather his belongings and go home and call the police. The victim identified the Defendant at trial as the man who put the gun to the back of his head.

         The victim spoke with the police that night and the following morning. He provided the police with a statement as to the robbery and identified the Defendant from a photographic line-up. The victim wrote underneath the Defendant's photograph that the Defendant was the person who went through his pockets and kicked him in the face. He explained at trial that this was not correct because at that point the victim was "still kind of scared and shaky and . . . had like a concussion." He confirmed to the jury that he was "100 percent" sure that the Defendant was the person who put the gun to the back of his head. With a gun pointed at his head, the victim was scared and thought he was going to die.

         On cross-examination, the victim agreed that he had already consumed a half of a half a pint of "Paul Masson" brown liquor at the time he was robbed. He also stated that he had a conversation with Tonya's cousin, who "referred" the victim to the Defendant and his co-defendant. The victim also agreed that he had a prior conviction for aggravated robbery, for which he was released in 2009.

         Officer Culver with the Memphis Police Department responded to the robbery call in this case. Upon arrival, he spoke to the victim, who described the perpetrators as two black males, one dressed in black and the other in a black and white shirt. The victim explained that "Tonya" was also involved in the offense. Officer Culver observed blood on the lower part of the victim's eye and called paramedics to provide the victim with medical treatment. Finally, Officer Culver opined that the victim appeared "dizzy" as a result of being struck in the head, rather than being intoxicated.

         Latonya Wright's cousin lived in the same "rooming house" as the victim. Wright testified that she knew the victim through her cousin and described her relationship with the victim as "close." On the night of the offense, Wright was "watching" her cousin's room while he was at work. She said "a little incident" occurred between her and another woman at the house. As she walked away to "calm herself down, " the Defendant joined her. She testified that the victim later called her and asked if she knew where to buy drugs. She told him that she would set something up, and she and the Defendant and two other men waited for the victim to arrive. When the victim arrived, the Defendant told Wright that his brother was going to "serve" the victim, meaning get drugs for him. Wright asked the Defendant's brother to get "10 hard and 10 soft, " meaning crack and powder cocaine, for the victim. Wright testified that as time passed, she observed the Defendant holding a gun to the head of the victim. She did not call the police because she was "high as Cooter Brown and didn't know what to do." The next morning Wright's mother took her to the police department, and she provided a statement detailing the events. At that time, Wright identified a photograph of the Defendant, admitted as an exhibit at trial, as the individual who "pull[ed] a gun out on [the victim]." Although Wright was arrested at the time of the offense, she denied any involvement in the offense at trial.

         Detective Maranda Jones of the Memphis Police Department investigated the case and created photographic lineups containing the Defendant's photograph. They were shown to Wright and the victim, both of whom identified the Defendant as the perpetrator in the offense. Detective Jones also explained that Wright was initially arrested and charged with facilitation of aggravated robbery because the victim said Wright brought the men to him. Detective Jones further agreed that Wright provided inconsistent statements regarding how she and the other men arrived at the offense location. After the Defendant was developed as a suspect, he was eventually arrested by Officer Charles Wren of the Memphis Police Department.

         Upon hearing the above proof, the jury convicted the Defendant as charged of aggravated robbery. At the April 21, 2016 sentencing hearing, the presentence report was admitted into evidence, without objection. The State did not offer any witnesses. The Defendant testified and "truly apologiz[ed] [to the victim] for whatever went on that day." On cross-examination, the Defendant insisted that he was not present during the offense. Following arguments of counsel, the trial court classified the Defendant as a Range I, standard offender and imposed the maximum sentence of twelve years' incarceration. The Defendant filed a motion for new trial, which was denied by the trial court on September 12, 2016. A timely notice of appeal was filed, and this case is now properly before this court.


         I. Sufficiency of Evidence.

         The Defendant challenges the evidence supporting his aggravated robbery conviction as insufficient. He does not dispute any specific element of the offense but contends rather that his conviction was based on inconsistent testimony. The State maintains, and we agree, that the evidence was sufficient to support the Defendant's conviction of aggravated robbery.

         When a defendant challenges the sufficiency of the convicting evidence, the standard of review 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 finding by the trier of fact of guilt beyond a reasonable doubt."). This standard applies to convictions based upon direct, circumstantial, or a combination of both direct and circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).

         The State, on appeal, is entitled to the strongest legitimate view of the evidence and all legitimate or reasonable inferences which may be drawn from that evidence. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). All 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, and this court will not reweigh or reevaluate the evidence. State v. Sutton, 166 S.W.3d 686, 689-90 (Tenn. 2005). This court has stated that "[a] guilty verdict by the jury, approved by the trial court, accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the prosecution's theory." Bland, 958 S.W.2d at 659 (citation omitted). A guilty verdict also "removes the presumption of innocence and replaces it with a presumption of guilt, and the defendant has the burden of illustrating why the evidence is insufficient to support the jury's verdict." Id. (citation omitted).

         In order to sustain a conviction of aggravated robbery, the State was required to prove beyond a reasonable doubt that the Defendant robbed the victim "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[.]" T.C.A. § 39-13-402(a)(1). "Robbery is the intentional or knowing theft of property from the person of another by violence or putting the person in fear." T.C.A. § 39-13-401(a).

         Viewed in the light most favorable to the State, the proof fully supports the Defendant's conviction for aggravated robbery. The victim candidly testified that he was attempting to buy drugs on the day of the offense and enlisted Latonya Wright to help him. Wright ultimately led the victim to the Defendant and his co-defendant. As the victim leaned over to tie his shoe, he was struck in the left eye with a handgun. He then fell to the ground, and the Defendant put a gun to the back of his head and told him not to move. The other man "tossed [the victim] from [his] left to [his] right going inside [his] pockets and removed $175" from his pocket. The next day, Wright confirmed through a photographic line-up that the Defendant was the individual who held a gun ...

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