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State v. Wise

Court of Criminal Appeals of Tennessee, Jackson

September 18, 2019

STATE OF TENNESSEE
v.
VICTOR WISE

          Assigned on Briefs July 9, 2019.

          Appeal from the Criminal Court for Shelby County No. 16-06899 James Lammey, Jr., Judge.

         The defendant, Victor Wise, appeals his Shelby County Circuit Court jury convictions of two counts of aggravated robbery, one count of attempted aggravated robbery, and two counts of aggravated assault, challenging the exclusion of certain evidence, the sufficiency of the convicting evidence, and the propriety of the 44-year effective sentence. We affirm the defendant's convictions but conclude that the trial court erred by imposing consecutive sentences. Accordingly, the defendant's total effective sentence is modified to 12 years.

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

          Larry E. Fitzgerald, Memphis, Tennessee, for the appellant, Trenton Ray Forrester.

          Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Jamie Kidd, Assistant District Attorney General, for the appellee, State of Tennessee.

          James Curwood Witt, Jr., J., delivered the opinion of the court, in which Robert W. Wedemeyer and J. Ross Dyer, JJ., joined.

          OPINION

          JAMES CURWOOD WITT, JR., JUDGE.

         The Shelby County Grand Jury charged the defendant, Aaron Cathey, and Cortavius Macklin, aka Cortavius Grove, with two counts of aggravated robbery, one count of attempted aggravated robbery, and two counts of aggravated assault for their roles in the August 4, 2016 "smash-and-grab" robbery at a Memphis pawn shop.

         At the February 2018 trial, Cash America Pawn employee Darnell Smith testified that shortly after the store opened on August 4, 2016, two men entered the store. One man stood at the jewelry case while "the other one was like pacing the floor of the store." The man who had been pacing the store "pulled a gun out on the manager" and demanded cash. The man who had been standing at the jewelry counter then smashed the glass of the jewelry case with a hammer and began taking jewelry. The men took more than 20 individual pieces of jewelry, approximately $700 cash, and a car "amp" from the store.

         Mr. Smith said that he feared for his life during the robbery. He provided a statement to the police and, after viewing two photographic arrays, identified the two men who had entered the store and committed the robbery. The defendant was not one of them.

         Cash America Pawn manager Nichole Keys testified that on August 4, 2016, two men entered the store and one of the men pointed a gun at her while the other "proceeded on to break the jewelry cases and pull jewelry out of the cases." She recalled that the man with a gun said, "'You know what this is about.'" She interpreted this statement to "basically" mean that she should "give him all the money out of the registers," and she did so. At one point, the man with the gun pointed it at another customer who was "trying to make us do a transaction for him not realizing that we were being robbed." The man with the gun ordered the customers onto the floor. Ms. Keys pressed the "hold-up alarm" as she was getting the cash from the registers. She said that she was terrified during the robbery.

         Ms. Keys testified that the jewelry cases taken during the robbery were equipped with global positioning satellite ("GPS") devices. During the robbery, a total of 118 individual pieces of jewelry with a total value of $24,555 was taken.

         Willie Conway was a customer at Cash America Pawn when two men came into the store and "told us to hit the floor - don't look back or they'll bust a cap in our head." Mr. Conway said that one of the men pointed a gun at him and that he feared for his life. The man with the gun took $400 from Mr. Conway.

         Ben Berry was also a customer at Cash America Pawn on August 4, 2016, when the store was robbed at gunpoint. Mr. Berry said that a man with a gun "said, 'All right, you all know what time it is; everybody hit the ground.'" Mr. Berry said that he and another customer got on the floor and that he heard breaking glass. Mr. Berry said that he feared for his life. He recalled that the man with the gun tried to take money from him, but he did not have any money on his person at the time.

         Memphis Police Department ("MPD") Sergeant Richard Rouse testified that when he heard "the broadcast over the radio about the robbery," he "followed directions on the radio from some tracking of the possible suspect vehicle." He explained that officers viewing location information from the GPS devices installed on property taken during the robbery relayed that location information over the radio and that he followed those directions onto the interstate and into West Memphis, Arkansas. Sergeant Rouse said that he did not intend "to continue too much into the next state," so he decided "to take the exit and turn around and come back to Memphis." At the end of the off-ramp, Sergeant Rouse saw a blue Nissan Maxima that matched the description of the suspect vehicle. He followed the car.

         The blue Nissan pulled into the parking lot of the Greyhound Gaming Casino, which was also known as the Southland Gaming Casino ("the Casino"), and parked. Sergeant Rouse parked a short distance away to observe the vehicle. Shortly thereafter, a message came over the radio that "the vehicle was stopped stationary at the southeast corner" of the Casino. Sergeant Rouse immediately radioed to other officers that he had the vehicle in sight and that there were three occupants. At that point, the driver exited the vehicle and began walking toward the Casino. He described the driver as a black male in his late twenties wearing a white t-shirt, gray "camo pattern" shorts, and particularly distinctive "bright blue shoes."

         Surveillance video from outside the Casino captured a man fitting that same description exiting a blue Maxima and entering the Casino. Surveillance video from inside the Casino captured the man coming from what appeared to be the restroom area wearing different pants but the "same blue shoes and same white T-shirt." The man sat down at a slot machine. Officers approached the man and placed him under arrest. Sergeant Rouse identified the defendant as the man who had exited the driver's side of the Maxima, entered the Casino, and changed his clothes while inside.

         Officers from the West Memphis Police Department arrived, and Sergeant Rouse flagged them down to explain the situation. At that point, the two occupants of the Maxima got out of the car and began running away. Sergeant Rouse chased one of the men, while an officer of the West Memphis Police Department pursued the other. The man that Sergeant Rouse was chasing, who was later identified as Cortavius Grove, ran into a nearby field, where Sergeant Rouse later located him with assistance ...


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