State v. Parker

• Decision Date: 18 March 1996
• Citation: 932 S.W.2d 945
• Parties: STATE of Tennessee, Appellee, v. Mike Boot PARKER, Appellant.
• Court: Tennessee Court of Criminal Appeals

Page 945

932 S.W.2d 945

STATE of Tennessee, Appellee, v. Mike Boot PARKER, Appellant.

Court of Criminal Appeals of Tennessee at Knoxville.

March 18, 1996.

Permission to Appeal Denied by

Supreme Court Sept. 9, 1996.

Francis D. Gibson, III, Maryville, for appellant.

Charles W. Burson, Attorney General and Reporter, Sharon S. Selby, Assistant Attorney General, Nashville, Randall E. Nichols, District Attorney General, Robert L. Jolley, Jr., Andrew Jackson, VI, Assistant District Attorney Generals, Knoxville, for appellee.

OPINION

JONES, Judge.

The appellant, Mike Boot Parker, was convicted of facilitation of aggravated robbery, a Class C felony, by a jury of his peers. The trial court found that the appellant was a standard offender and imposed a Range I sentence of confinement for five (5) years in the Department of Correction.

Several issues are presented for review. The appellant contends:

(1) The Court was in error in failing to grant [a] new trial or grant Judgment of Acquittal for the failure of the Appellee to furnish the pre-trial statement of Donna Owens as exculpatory.

(2) The Court was in error in failing to sustain the objection of the Appellant as to evidence presented by the State inconsistent with the Bill of Particulars and the Court was in further error in failing to find fatal variance with the indictment.

(3) The Court was in error in overruling the objection of the Appellant and in error in allowing the State to go into events occurring after the return of Darrell Easterly to the residence of the Appellant.

(4) The Court was in further error in charging the jury to disregard the testimony of the Appellant concerning the events which took place after the return of Darrell Easterly to the residence and was in error in failing to charge on the attorney client privilege.

(5) The verdict of the jury is contrary to the weight of evidence, not in accordance with the instructions of the Court as to the application of evidence, and obviously compromised and further violated the instructions of the Court.

(6) The verdict of the jury was based upon the uncorroborated testimony of an accomplice. The Court was in error in failing to grant judgment of acquittal at the conclusion of all proof.

(7) The Court erred in finding as a matter of law that the indictment language included the status of aider and abettor and, consequently, the lesser offense of facilitation.

(8) The Court was in error in sentencing by failing to find any mitigating factors, enhancing the sentence on enhancement factors announced as no evidence was presented by the State as to these enhancement factors in the presentation of proof or at the sentencing hearing.

(9) The Court was in error failing to consider the Appellant for judicial diversion or alternative sentencing. The sentence pronounced was cruel and unusual for the verdict of the jury and the facts of this case.

(10) The Court was in error in accepting the verdict of the jury as the Court invaded the province of the jury by the ruling on the verdict by necessity.

The judgment of the trial court is affirmed.

Darrell W. Easterly was employed by the Pizza Hut in the Halls area of Knoxville. Easterly devised a plan to rob the night manager when he left to make a bank deposit. Easterly initially approached a co-employee, Jay R. Denton, Jr., and asked if he was interested in robbing the manager. Denton was not interested.

Easterly was living with the appellant and the appellant's family. He eventually approached the appellant about his robbery plan. They discussed the plan. On the evening of August 23, 1991, the appellant and Easterly decided to execute the plan. The appellant provided Easterly with his .9mm pistol. They subsequently drove to a parking lot adjacent to the rear of the Pizza Hut in the appellant's Corvette. When they arrived, Easterly placed a ski mask over his head, went to the Pizza Hut parking lot, and waited behind a large trash container. Easterly saw the night manager exit the building. When the manager approached his car, the appellant appeared from behind the trash container, pointed the gun at the manager, and told the manager to drop the bank deposit bag. Easterly approached the manager, obtained the bag, and ran back to the appellant's Corvette.

As the appellant pulled from the parking lot, a sheriff's department patrol car appeared. The appellant told Easterly to get down in the seat. The appellant and Easterly then returned to the appellant's home. They divided the cash, which was estimated at $2,800. They subsequently burned the bank deposit bag, the ski mask, and the checks in a small charcoal grill behind the appellant's home.

The appellant manufactured an alibi. He called Easterly's estranged girlfriend, Charlene Abbott, on the evening in question. The appellant told her that if anyone questioned her about her whereabouts that night, she was to tell the person that she and Easterly were at the appellant's home. When Abbott insisted on knowing why she was to relate this story, the appellant told her "Darrell and I robbed a place." Later, Easterly called Abbott. He told her "[m]e and Mike robbed the Pizza Hut."

A few days after the robbery, the appellant called a meeting at his home. Easterly, Abbott, Dixie Malach, the appellant's daughter, Barbara Parker, the appellant's wife, Donna Owens, the appellant's girlfriend, and Bonita Bill, Easterly's mother, attended the meeting. The appellant told these people that if any one questioned them about the robbery, they were to say both Easterly and the appellant were at the appellant's home watching movies all night. The appellant told Charlene Abbott that she was to say she and her young son ate dinner with Easterly at the Parkers that night. Because Easterly had a toothache, Abbott stayed at the Parkers' house with him.

Easterly was the prime suspect because the manager recognized his voice. The manager called him "Darrell" during the robbery. Easterly did not return to work after the robbery. When Easterly was taken into custody for another crime, he was arrested and charged with the robbery. He subsequently gave a statement to officers that implicated the appellant in the robbery.

The appellant and his wife testified that the appellant was at home when the robbery occurred. They testified that Easterly borrowed the Corvette. When he returned, he told the appellant that he had robbed the Pizza Hut and the victim recognized him. Easterly burned the bank deposit bag, ski mask, and checks in the charcoal grill. The appellant emphatically denied that he participated in the robbery. A friend of the appellant, who also worked at the Pizza Hut, testified that he called the appellant at 10:00 p.m., around the time of the robbery, and the appellant was at his home.

I.

A.

When an accused challenges the sufficiency of the convicting evidence, this Court must review the record to determine if the evidence adduced at the trial was sufficient "to support the finding by the trier of fact of guilt beyond a reasonable doubt." ¹ This rule is applicable to findings of guilt based upon direct evidence, circumstantial evidence, or a combination of direct and circumstantial evidence. ²

In determining the sufficiency of the convicting evidence, this Court does not reweigh or reevaluate the evidence. ³ Nor may this Court substitute its inferences for those drawn by the trier of fact from circumstantial evidence. ⁴ To the contrary, this Court is required to afford the State of Tennessee the strongest legitimate view of the evidence contained in the record as well as all reasonable and legitimate inferences which may be drawn from the evidence. ⁵

Questions concerning the credibility of the witnesses, the weight and value to be given the evidence, as well as all factual issues raised by the evidence are resolved by the trier of fact, not this Court. ⁶ In State v. Grace, ⁷ our Supreme Court said: "A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the State."

Since a verdict of guilt removes the presumption of innocence and replaces it with a presumption of guilt, the accused, as the appellant, has the burden in this Court of illustrating why the evidence is insufficient to support the verdicts returned by the trier of fact. ⁸ This Court will not disturb a verdict of guilt due to the sufficiency of the evidence unless the facts contained in the record are insufficient, as a matter of law, for a rational trier of fact to find that the accused is guilty beyond a reasonable doubt. ⁹

B.

Before an accused can be convicted of the facilitation of a felony, the state must prove beyond a reasonable doubt that the accused (a) knew another person was going to commit a specified felony and (b) knowingly furnished substantial assistance in the commission of the felony although the accused did not possess the requisite intent to be guilty of the felony. ¹⁰ In other words, the state must prove the commission of a specified felony and the assistance the accused gave to the person committing the specified felony. ¹¹

In this case, the evidence established that Easterly committed the offense of aggravated robbery. Before the robbery, Easterly and the appellant discussed the commission of this offense. The appellant furnished Easterly with a pistol to commit the robbery. He took Easterly to the parking lot behind the Pizza Hut to commit the crime. After the robbery, the appellant drove Easterly from the situs of the robbery to the appellant's home. These facts, if believed by the jury, were sufficient to find the appellant guilty of the offense of facilitating the felony of aggravated robbery.

C.

The appellant contends that he was convicted based upon the uncorroborated testimony of an accomplice. In this jurisdiction, it is a well-established rule of law that the testimony of an accomplice must be corroborated...