Assigned on Briefs July 9, 2019.
from the Criminal Court for Shelby County No. 16-06899 James
Lammey, Jr., Judge.
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
R. App. P. 3; Judgments of the Circuit Court Affirmed as
E. Fitzgerald, Memphis, Tennessee, for the appellant, Trenton
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.
Curwood Witt, Jr., J., delivered the opinion of the court, in
which Robert W. Wedemeyer and J. Ross Dyer, JJ., joined.
CURWOOD WITT, JR., JUDGE.
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.
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.
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.
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.
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
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
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.
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
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."
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.
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