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State v. Woods

Court of Criminal Appeals of Tennessee, Jackson

April 6, 2018


          Session October 3, 2017

          Appeal from the Criminal Court for Shelby County No. 14-06427 John W. Campbell, Judge

         The Defendant, Marcellus Woods, was convicted by a Shelby County Criminal Court jury of aggravated robbery, a Class B felony, and was sentenced to eight years in the Tennessee Department of Correction. On appeal, he argues that the trial court erred in allowing testimony under Rule 404(b) of the Tennessee Rules of Evidence concerning his involvement in an attempted robbery of one business and his suspicious activities near another business. After review, we affirm the judgment of the trial court.

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

          Genna M. Lutz, Memphis, Tennessee, for the appellant, Marcellus Woods.

          Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Leslie Fouché and Olivia C. Brame, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Alan E. Glenn, J., delivered the opinion of the court, in which John Everett Williams and Norma McGee Ogle, JJ., joined.


          ALAN E. GLENN, JUDGE.


         The Defendant and two co-defendants were indicted for the aggravated robbery of an employee of the Family Dollar store on Third Street in Memphis that occurred the morning of July 29, 2014. The State filed a motion in limine to admit evidence of other bad acts pursuant to Rule 404(b) of the Tennessee Rules of Evidence, and, after a hearing, the trial court granted the State's motion. The case proceeded to trial.

         State's Proof

         Kimberly Lewis testified that she was working as the store manager of the Family Dollar store on South Third Street in Memphis on July 29, 2014. That morning, as Ms. Lewis unlocked the door to go into the store, two men pushed her in, made her disarm the alarm, and commanded her to get money from the safes. Both of the men had guns, their faces were covered and they were wearing gloves. Ms. Lewis said that the store had two safes, one that housed the register trays and one that was used for bank deposits. Both safes had a time delay before they would open. The men warned Ms. Lewis not to run her hand down the middle of the safe's keypad, a feature on some safes in the company that would alert the police. It appeared to Ms. Lewis that the men were familiar with the layout of the store because they avoided the parts of the store with motion detectors that would set off the alarm. The store's video surveillance system captured the incident. Ms. Lewis estimated that the men stole $3000. During the ordeal, Ms. Lewis feared for her life and believed that she would be killed.

         Ms. Lewis testified that Vernicia Stamps, the assistant store manager, was originally scheduled to come in a few hours after Ms. Lewis but had volunteered to come in early to assist Ms. Lewis with some freight. However, Ms. Stamps texted Ms. Lewis that morning to say that she was running late, which was unusual for her. Ms. Lewis knew the Defendant because his mother was a former manager for Family Dollar, and Ms. Lewis was the Defendant's mother's assistant manager. Later, Ms. Lewis hired the Defendant the summer after his senior year of high school before he left for college.

         Sergeant Taurus Nolen with the Memphis Police Department investigated the July 29 robbery of the Family Dollar store. He recalled that Ms. Lewis was unable to identify the robbers because they were masked. He viewed the surveillance footage from the store and noticed that the robbers were wearing all black and carrying a backpack. He noticed that their guns were "extremely large, " which struck Sergeant Nolen as peculiar. Sergeant Nolen developed suspects in the Family Dollar robbery after the police were called to a cash advance business on August 5, 2014 where suspects had been detained and then released. One of the individuals who had been detained was Demarcio Ross. Sergeant Nolen noticed similarities between the two robberies and wanted to determine if the two crimes were related. He brought Mr. Ross in for questioning and obtained consent to search Mr. Ross's girlfriend's vehicle. The search revealed a paintball gun, which, because of its "abnormally" large size, Sergeant Nolen surmised that it was the gun used in the Family Dollar robbery. After interviewing Mr. Ross and discovering the paintball gun, Sergeant Nolen obtained a warrant for the Defendant's arrest.

         Demarcio Ross testified that he and the Defendant robbed the Family Dollar store on South Third Street on July 29, 2014. The Defendant brought up the idea weeks earlier when they were joking about how they both needed money. They picked that particular Family Dollar store because the Defendant said that his sister worked there. The night before the robbery, the Defendant stayed at the home Mr. Ross shared with his girlfriend, Regina Muhammad. The Defendant was dating Lelia Muhammad, Regina's sister.[1] Mr. Ross and the Defendant awoke around 5:00 or 6:00 a.m. the morning of the robbery. They picked up Jeremy Howard in Regina's car, a blue Saturn, and drove to the Family Dollar where they waited for someone to arrive and unlock the door. Mr. Ross covered his face from his nose down with his shirt, and Mr. Howard covered his entire face. Mr. Ross carried a BB gun, and Mr. Howard carried a paintball gun. The Defendant served as driver and lookout, while Mr. Ross and Mr. Howard entered the store. Once inside, Mr. Ross and Mr. Howard forced the victim to turn off the alarm and open the safes. Mr. Ross was in contact with the Defendant while they waited for the time delay on the safes to elapse. They put an estimated $1700 in a backpack and ran from the store. The Defendant drove them back to Mr. Ross's apartment, and the three men split the robbery proceeds equally.

         Mr. Ross testified that on August 5, 2014, he and the Defendant and Mr. Howard attempted to rob a cash advance business, Ace Cash Express. The men developed a plan wherein Mr. Ross went in pretending to be a loan applicant, and the Defendant and Mr. Howard entered and demanded cash, while pretending to hold Mr. Ross hostage. Mr. Ross said that the Defendant and Mr. Howard were both armed with BB guns, which were different from that used in the Family Dollar robbery. The robbery of Ace Cash Express was unsuccessful because the store clerk immediately dropped to the floor and activated the alarm. Mr. Ross stayed at the scene pretending to be a bystander and was eventually arrested for possession of marijuana. Police also found a BB gun in Mr. Ross's car. The Defendant and Mr. Howard ran after the employee signaled for the police, but they later returned to the scene to check on Mr. Ross.

         Mr. Ross testified that over a week later, on August 13, 2014, he and the Defendant planned to rob another Family Dollar store in the area of Mary Jane Avenue. They had a BB gun and paintball gun in the trunk of their car for such purpose. They tried to rob the store that morning when it opened, but the door was locked. They returned later that night to try again, but a police officer pulled them over and arrested Mr. Ross for driving on a suspended license.

         Jeremy Howard's testimony was essentially consistent with Mr. Ross's testimony regarding the robbery of the Family Dollar store on South Third Street and attempted robbery of Ace Cash Express. Mr. Howard elaborated that the Family Dollar was chosen because the Defendant had worked there. Mr. Howard also said that the Defendant believed that the only people who were going to be working in the store were "his two sisters, " but there ended up being "just one woman." Mr. Howard estimated that they took around $2000 in the robbery.

         With regard to the Ace Cash Express attempted robbery, Mr. Howard testified that they chose the location because it was the "closest to us." Mr. Howard's recollection differed from Mr. Ross's in that Mr. Howard recalled that he was armed with a paintball gun, and the Defendant was armed with a BB gun. Mr. Howard also elaborated that he and the Defendant returned to Ace after waiting on Mr. Ross for thirty to forty-five minutes to try "to get [Mr. Ross] out of the situation." He said that officers handcuffed him and the Defendant and put them in a police car, but the officers eventually let them go.

         Regina Muhammad testified that the night before the robbery of the Family Dollar store on South Third Street, Mr. Ross was "joking around" and "saying he was going to rob something." The next morning, she woke up and discovered that the Defendant and Mr. Ross were not in the house and that her Saturn automobile was gone. She saw the Defendant, Mr. Ross, and Mr. Howard come into the house with backpacks and later saw them counting money. Ms. Muhammad said that, a few days before, she saw the Defendant and Mr. Ross "messing around with" a BB gun and a paintball gun.

         Alisa Styles, the custodian of jail records for the Shelby County Sheriff's Office, testified that the Defendant's inmate record showed that he was booked into the jail on September 3, 2014, and he was visited by Vernicia Stamps on September 4, 2014. Ms. Stamps was the Defendant's first visitor.

         Eddie Anderson, [2] a resident of Mary Jane Avenue, testified that early in the morning on August 13, 2014, he noticed a gray or silver four-door car with two young African-American men inside parked in front of his neighbor's house. Almost two hours later, Mr. Anderson saw the two men, dressed in dark clothes, get out of the car and put on black ski masks. Both men were wearing all black, and the passenger had a backpack. The men walked west, toward the "business district" on Elvis Presley Boulevard. There was a Family Dollar store on Elvis Presley Boulevard about a half a mile from where the car was parked. Mr. Anderson called the police. The men returned after five or ten minutes, sat in the car for a short while, and then drove off slowly. Later that evening, Mr. Anderson saw the flashing blue lights of a police car in the neighborhood, so he went outside to speak to them and reiterated what he had observed that morning.

         Officer Tony Franklin of the Memphis Police Department testified that he responded to a "suspicious person's" call in the area of Mary Jane Avenue and Elvis Presley Boulevard on August 13, 2014, around 8:00 p.m. The caller advised that a gray Saturn, seen in the area earlier that day and "occupied by two subjects with hoodies and gloves on, " had returned to the area. Officer Franklin located a vehicle matching the description parked on Mary Jane Avenue with its lights off. The car was facing west, and Officer Franklin was driving east. Immediately after Officer Franklin drove past the car, it turned on its lights and drove away. Officer Franklin turned around, activated his blue lights, and pulled the car over. The car had the same license plate number as the car that had been reported that morning. Officer Franklin discovered that the license of the driver, Mr. Ross, was suspended. The Defendant was also in the car, sitting with a backpack on the floorboard between his legs. Officer Franklin opened the backpack and saw two guns, which the Defendant spontaneously told him were not real. The Defendant claimed ownership of the paintball gun and told him that the BB gun belonged to Mr. Ross. Officer Franklin also saw gloves on the center console armrest and on the backseat.

         Officer Franklin testified that the Defendant told him that he did not live in the area but was there "to meet girls." The Defendant denied having been in the area earlier that day. The Defendant told Officer Franklin that Mr. Ross walked to a nearby Family Dollar store but came back immediately saying that the store was closed. However, Officer Franklin verified that the store was still open at that time. Officer Franklin also spoke to Mr. Ross about why he was in the area, and his story did not match the Defendant's. Officer Franklin did not recall finding any ski masks in the vehicle that night.

         Ebori Bledsoe, an employee of Ace Cash Express, testified that she arrived to work around 7:30 a.m. on August 5, 2014, and the store was to open at 8:00. A tall young African-American man knocked on the door at 7:45, but she did not let him inside until the store opened. The man inquired about a title loan and stood by the window filling out an application. Ms. Bledsoe had her back turned away from the window as she continued completing her opening duties when she heard the door chime, indicating that someone had entered. She turned and saw that the person who had entered was wearing a mask and carrying a gun. The man demanded money, and Ms. Bledsoe dropped to the floor and pressed the panic button behind the counter. From where she was hiding under the counter, Ms. Bledsoe heard two men talking, speculating where Ms. Bledsoe had gone. She heard one man say, "I'm going to threaten you and see if that brings her out." The same man then said, "[I]f you don't come back up here by the time I count to three, I'm going to shoot this guy in his head." Ms. Bledsoe did not move. She then heard the other man say, "[Y]ou need to go ahead and leave before the police come." Ms. Bledsoe got up after the police arrived and saw the surreptitious customer outside. The Saturn car he arrived in ...

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