Assigned on Briefs July 11, 2017
from the Criminal Court for Shelby County No. 14-03634 Chris
Defendant, Kenneth Fleming, appeals as of right from his
convictions for two counts of aggravated robbery and one
count of evading arrest. The Defendant argues that the trial
court erred: (1) by giving an improper jury instruction and
allowing the case to be presented to the jury when there was
insufficient proof to establish venue and jurisdiction; (2)
by failing to give a jury instruction on lost or destroyed
evidence; (3) by allowing the State to enter a silver handgun
and blue toboggan into evidence; (4) by not providing a
curative instruction when a witness testified as to other
crimes similar to the crime in this case; (5) by allowing the
State to make improper comments during closing arguments and
by giving an improper curative instruction to the jury; and
(6) by sentencing the Defendant partially consecutively.
Following our review, the judgments are affirmed.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Terrell L. Tooten, Cordova, Tennessee (on appeal); and James
Coleman and Laura Locke, Memphis, Tennessee (at trial), for
the appellant, Kenneth Fleming.
Herbert H. Slatery III, Attorney General and Reporter;
Nicholas W. Spangler, Assistant Attorney General; Amy P.
Weirich, District Attorney General; and Carla Taylor,
Assistant District Attorney General, for the appellee, State
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which Norma McGee Ogle and Camille R. McMullen, JJ., joined.
KELLY THOMAS, JR., JUDGE
case arose following the December 26, 2013 robbery of the
victims, Brandon Raupp and Joseph Lumley, at the Watkins
Express Gas Station in Shelby County. Thereafter, the Shelby
County Grand Jury charged the Defendant with two counts of
aggravated robbery, one count of possessing a firearm as a
convicted felon, and one count of evading arrest.
See Tenn. Code Ann. §§ 39-13-402; -16-603;
-17-1307. The Defendant proceeded to a jury trial for the two
counts of aggravated robbery and one count of evading arrest.
At the conclusion of the trial, the Defendant pled guilty to
one count of possessing a firearm as a convicted felon.
Co-defendant Darryl Gaither was charged similarly and tried
jointly with the Defendant. The trial began in the Criminal
Court for Shelby County on January 11, 2016.
Raupp testified that on December 26, 2013, he and Mr. Lumley
were "head[ed] to play disc golf" at Shelby Forest
and stopped at the Watkins Express Gas Station. Mr. Raupp
testified that he and Mr. Lumley were traveling in Mr.
Raupp's Mitsubishi Galant and that Mr. Raupp was driving.
Mr. Raupp did not remember the exact time they stopped at the
gas station but remembered that "[i]t was
daylight." Mr. Raupp explained that when he and Mr.
Lumley exited their vehicle, two men approached them and
asked if the victims wanted "to buy some weed." Mr.
Raupp and Mr. Lumley declined the offer and entered the
store. Mr. Raupp explained that he went back outside to make
sure his car doors and windows were locked and said that he
noticed that the two men "were up on this hill"
near the gas station. Mr. Raupp said that the men were
"kind of standing there talking with each other and when
they s[aw Mr. Raupp, ] they started walking back down"
the hill. Mr. Raupp went back inside the store where he and
Mr. Lumley purchased drinks and snacks.
Raupp identified these two men as the Defendant and his
co-defendant. When asked what the two men were wearing on the
day of the incident, Mr. Raupp said that one man was wearing
a blue toboggan and that the other was wearing a black
toboggan. He also said that "one of them was wearing
dark jeans and the other one was wearing light jeans."
Raupp explained that he and Mr. Lumley left the store and
returned to his car. As they neared the car, the Defendant
and co-defendant were standing on a corner in close proximity
to Mr. Raupp's vehicle. Mr. Raupp testified that as he
was unlocking his car door, the Defendant "c[ame] up on
[Mr. Raupp] and pull[ed] the pistol out and [told Mr. Raupp]
to get in the car." Mr. Raupp said that he sat
"down in the car" and that the Defendant was
"pointing the gun in [his] face saying to empty [his]
pockets." Mr. Raupp explained that he removed a wallet,
iPod, and a cell phone from his pockets. He stated that in
his wallet, he "had a hundred dollars and a couple of
Raupp said that the co-defendant went to the passenger side
of the car where Mr. Lumley was standing. Mr. Raupp explained
that the co-defendant instructed Mr. Lumley to get into the
car, but the car doors were locked. Mr. Raupp said that the
co-defendant "didn't pull his pistol out" but
that he "kept . . . lifting up his shirt and showing
it." Mr. Raupp stated that he unlocked the car doors,
but Mr. Lumley did not get into the vehicle immediately. He
explained that Mr. Lumley "was pretty upset[, ] and he
started walking around to the other guy" on Mr.
Raupp's side of the car. Mr. Raupp testified that
"the guy on [Mr. Raupp's] side started pointing his
pistol at" Mr. Lumley. He described the pistol as
"silver, like nickel plated." Mr. Raupp did not
recall details about the other gun because the co-defendant
"wouldn't pull [the gun] out, he just kept showing
it, in his waistband."
Raupp said that after the Defendant, who was standing on the
driver's side of the car, pointed the silver pistol at
Mr. Lumley, Mr. Lumley "walked back around to the
passenger side of the car." He said that Mr. Lumley
pulled out his wallet and a bag of peanuts and threw his
peanuts at one of the men. Mr. Raupp testified that one of
the men told them that "they were going to burn"
them and that he felt threatened by this. He explained,
"I thought they were going to shoot us. . . . I was
scared." Mr. Raupp said that the Defendant "reached
in [the] glove box and pulled out the owner's manual to
the car." He said that after that, the Defendant and
co-defendant "took off, once they got what they
Raupp testified that the Defendant and co-defendant ran back
up the hill. When asked what he did after the men ran away,
Mr. Raupp explained "that he was pretty upset" and
that Mr. Lumley suggested they drive after the men. Mr. Raupp
said that he drove down the street in the direction the
Defendant and co-defendant had run and that Mr. Lumley called
the police. He stated that the Defendant and co-defendant
"noticed us coming and so they pulled their guns out
again and pointed them at us[.]" Mr. Raupp explained
that he "turned down a side street and when [he] turned
back around and came up, [the defendants] were gone."
Mr. Raupp said that was approximately the time that he saw
the police driving down another street to the left and that
he met the police in a parking lot. Mr. Raupp said that he
and Mr. Lumley got out of their car and "described to
the police what [the Defendant and co-defendant] were wearing
and what happened." He said that they were instructed to
"follow another police officer back to the gas station
to give a statement." Mr. Raupp explained that he and
Mr. Lumley returned to the gas station and after arriving,
got into the back of the police car to give a statement.
asked how he described the incident to the police officers,
Mr. Raupp responded, "[T]hey took my [i]Pod, my wallet,
my cell phone, they were wearing you know, one had a blue
toboggan, and one had a black toboggan, one had a black
hoodie, . . . one had light colored jeans, and one had dark
colored jeans." Mr. Raupp told the officers that his
assailants were two "[b]lack male[s, ]" who were
"probably between five ten and six" feet tall and
each weighed "about a hundred and fifty pounds."
Mr. Raupp explained that he and Mr. Lumley remained in the
back of the squad car for approximately five minutes before
officers brought two individuals back to the gas station.
Officers brought the two men up to the windows of the squad
car in which Mr. Raupp and Mr. Lumley were seated, and Mr.
Raupp told the officers that they were the men who robbed
asked how he was certain they were the same individuals, Mr.
Raupp replied, "I recognized their face[s]. They had my
property in their pocket." Specifically, it was a black
iPod with "a couple of cracks in the top right screen
and it had a picture of like a smiley face or something when
you turned it on." Mr. Raupp said that after he
identified the Defendant and co-defendant, he was told to
return to the police station where he gave a statement about
the robbery. The prosecutor showed Mr. Raupp a silver gun.
Mr. Raupp said that the gun looked like the weapon the
Defendant used during the robbery, and it was marked as an
exhibit for identification purposes only.
Lumley gave a similar account at trial as Mr. Raupp.
Furthermore, he identified the two defendants as the men who
robbed him and Mr. Raupp that day. Mr. Lumley also testified
that during the robbery, the Defendant demanded, "[G]ive
[him] everything or he was going to burn [them]." Mr.
Lumley said that he understood the Defendant to mean
"[t]hat he was going to shoot [them] if [they]
didn't give him what [they] had." When asked to
describe the weapon that the Defendant had, Mr. Lumley
responded, "It was a nickel plated .380, maybe a [.40
caliber], it wasn't a .22 or something small. It was a
full sized Glock." Additionally, he testified that the
co-defendant had a black gun during the robbery. Mr. Lumley
testified that the co-defendant was wearing "a black
hoodie" and "a blue toboggan, " and that the
Defendant was wearing a "black hoodie, a pair of solid
black pants and a black toboggan." Mr. Lumley said that
the Defendant had a small mustache and that the co-defendant
was "younger, possibly [a] teenager."
Derrick Gary testified that he was employed with the Memphis
Police Department (MPD) and that he responded to an incident
at the Watkins Express Gas Station on December 26, 2013. He
stated that the incident happened at approximately
"midday" and that he found the victims at a carwash
in a shopping center located near the gas station. Officer
Gary said that the victims told him
that they had just stopped at the gas station to buy some
things before they went to Shelby Forest to play disc golf
and were approached by two then unknown . . . black [males]
that produced handguns and demanded their property. They gave
me a list of items that had been taken from them, their
wallets, and an Apple [i]Pod and things of that nature. . . .
I put them in the backseat of my car and they gave me a
description of the two gentlemen responsible for the robbery.
Gary testified that as part of his preliminary investigation,
he "searched for additional witnesses" and
"talked to the store clerk to see if there [was] any
video" of the incident. However, the store clerk
informed Officer Gary that the store had cameracs but that
they were not operational at that time. Officer Gary said
that "[o]nce he was given the confirmation that the
subjects that were detained were the subjects responsible for
the robbery, " a supervisor was called to the scene and
"everybody that was involved with the situation was
taken to the investigative bureau for further
investigation." Officer Gary said that he was with the
victims for approximately one hour. Moreover, he stated that
everything he testified to at trial occurred in Shelby
cross-examination, Officer Gary was asked if it would
"be a surprise to [him] if the owner of the [Watkins
Express Gas Station] said that the cameras were up and had
never not been operational." He responded that "it
would not necessarily be a surprise to [him]. Those store
owners [were] typically not cooperative with law
Langdon Hubbert testified that he was employed with the MPD
on December 26, 2013, as a patrolman. Officer Hubbert said
that he responded to a call and participated in the
investigation involving the robbery at the Watkins Express
Gas Station. Officer Hubbert explained that he helped to
detain the co-defendant outside a house located near the gas
station on "Gilly." Officer Hubbert "placed
him into custody and . . . patted him down for any type of
weapon." Officer Hubbert found no weapons and placed the
man in the back seat of the police car. Officer Hubbert took
the co-defendant to the gas station "where he was
positively identified by both victims."
Onrico Atkins testified that he was employed with the MPD and
participated in a robbery investigation on December 26, 2013.
Officer Atkins explained that he received "a call over
the air via dispatch and [he] was one of the responding
cars." He said that he arrived at the scene, and the two
victims claimed that they had been robbed and "gave a
location" for "where they believed the suspects had
gone." Officer Atkins "went to the house in
question" located on Gilly. Officer Atkins testified
that he located the Defendant in a nearby "storage shed
that was partially open[.]" Officer Atkins then
identified the Defendant as the man he detained on the day of
the robbery. The prosecutor showed Officer Atkins an item,
and Officer Atkins identified it as the blue skullcap that he
took from the Defendant the day of the incident. Counsel for
the co-defendant requested a bench conference regarding the
[Co-defendant's counsel]: Your honor, before this goes in
I think I need to have some . . . clue about the chain of
custody and how it gets from Officer Atkins to the present
. . . .
[Trial court]: Well, . . . [Officer Atkins] said that's
what it was and under [Tennessee Rule of Evidence] 901
it's sufficient if the witness says that's way it is,
so he's authenticated it.
. . . .
[Defense counsel]: It's a question of where it's
been. Is this just a general blue skullcap and there's no
indication of who had custody over time. . . .
[Trial court]: You're welcome to cross[-]examine [Officer
Atkins] about it[, ] but he gets to testify under oath that
was the cap. Now if you want to tell the jury it's not
the cap, it may be someone else's cap and his cap was
different, that's fine but there's no question about
test results being invalid because it wasn't kept safely.
There's no reason for me to have to go through all that.
Now if there were fingerprints taken, DNA taken, serology
taken, that's different, but he testified it was the cap.
the bench conference, the blue cap was entered into evidence.
Officer Atkins testified that the Defendant was patted down
for weapons. No weapons were located, but an iPod was found
in the Defendant's "front right pants pocket."
Atkins testified that he "returned the [D]efendant and
the [i]Pod back to the scene of the robbery[, ]" and one
of the victims identified the iPod "as property taken
from him" during the robbery. Officer Atkins stated that
he did not remember if the iPod was identified before or
after the Defendant was identified. During cross-examination,
Officer Atkins said that he believed the iPod was returned to
the victim. Officer Atkins testified that the events occurred
in Shelby County.
Matthew Pugh testified that he was employed with the MPD and
that he participated in a robbery investigation on December
26, 2013. He testified that he received a broadcast
describing the suspects as "two . . . black [males]
wearing dark clothing. One of them had a black skullcap on
and the other one had a blue skullcap on." Lieutenant
Pugh said that one of the victims "explained that they
had followed the suspects to a house around the corner, so
[Lieutenant Pugh] had [the victims] point out that
house." He testified that the house was located on
Gilly, which was the first street located behind the store.
Lieutenant Pugh testified that as he approached the house,
[t]wo . . . black [males] ran out the back door and [he]
heard them hit the fence and rattle the fence, and
[Lieutenant Pugh] was in the driveway right beside the house
when that happened and [he] observed them jump the fence and
they took off running back westbound in between . . . two
Pugh said that he got on the police radio and explained where
the suspects were located. He stated that "within thirty
seconds Officer Hubbert got on the radio and said he had one
[of the suspects] in custody" and that "Officer
Atkins . . . got on the radio and said he had the other one
in custody on the next street over."
learning that the two suspects had been detained, Lieutenant
Pugh walked through the backyards of the area and "ran
across [a] black bag and one of the suspect's skull
caps[.]" He said that he found the bag behind a house
located "in between the two streets of Corning and off
the corner of Gilly[.]" He said that at that point, he
joined Officer Hubbert and that he "had the suspects
returned to the scene [of the robbery] for
identification." When asked if he recalled what was in
the black bag, Lieutenant Pugh replied, "[S]ome grayish
black gloves and a hangun." Lieutenant Pugh identified a
photograph of the house where he located the bag.
Additionally, he identified the skullcap and the black bag
containing the gloves and handgun, and these items were
entered into evidence. Lieutenant Pugh also testified that
all of the events occurred in Shelby County.
cross-examination, Lieutenant Pugh was asked how he
recognized the gun introduced into evidence. Lieutenant Pugh
reiterated that "it was the weapon that was pulled out
of the bag that day." He further explained that the gun
was unique in that it was "chrome" or "nickel
plated" and had "black electrical tape around the
Mawani testified that he owned the Watkins Express Gas
Station on North Watkins. He said that he had owned the gas
station since 2003. Mr. Mawani identified a photograph of the
inside of the store, which depicted "the register and
the camera system[.]" He testifed that the system
consisted of sixteen cameras. When asked if the system had
ever been out of order or broken, he responded, "Not for
too long. Even if it had, we would have repaired it quickly,
but nothing [wa]s out of order for too long[.]" Mr.
Mawani asserted that there had never been a time when all of
the cameras were broken at once. Mr. Mawani also testified
that the surveillance video recordings were erased
automatically every two weeks. When asked if the police ever
requested video footage from the store's camera system
regarding incidents in the past, Mr. Mawani said, "[W]e
have helped authorities when they needed camera footage for
the outside of the store. And we have helped multiple times
giving them video footage of outside of the store[.]"
conclusion of the trial, the jury convicted the Defendant of
two counts of aggravated robbery and one count of evading
arrest. The Defendant subsequently entered a guilty plea for
one count of being a convicted felon in possession of a