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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON
Assigned on Briefs August 3, 2004 STATE OF TENNESSEE v. MARIO MERRITT
Direct Appeal from the Criminal Court for Shelby County No. 02-05448 James C. Beasley, Jr., Judge

No. W2003-02868-CCA-R3-CD - Filed November 30, 2004

The appellant, Mario Merritt, was convicted by a jury in the Shelby County Criminal Court of especially aggravated robbery. Following a hearing, the trial court sentenced the appellant to twentyfive years in the Tennessee Department of Correction. The appellant now brings this appeal challenging the sufficiency of the evidence to support his conviction. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed. NORMA MCGEE OGLE, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and THOMAS T. WOODALL, J., joined. Marty B. McAfee, Memphis, Tennessee, for the appellant, Mario Merritt. Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; William L. Gibbons, District Attorney General; and Amy Weirich, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION I. Factual Background On the afternoon of June 21, 2001, Anterius Harden, a "Loss Prevention Security" employee at Goldsmith's Department Store, was on duty at the Southland Mall in Memphis. Around 5:00 p.m., Harden was monitoring the store from a control panel located in the men's department, when he noticed two men and a woman enter the men's department through the north doors. According to Harden, the three shoppers caught his attention because they began selecting clothing without checking the size or price of the items. As Harden watched the trio, he observed one of the men, later identified as the appellant, take several items of clothing, walk past the cash register, and proceed toward the north doors.

Harden immediately intercepted the appellant and identified himself as a "Loss Prevention" employee. Harden was wearing "plain clothes" and a badge around his neck. Upon being confronted, the appellant pulled out a pistol and ordered Harden "to get back, get on the ground." Harden remained standing but stepped aside to allow the appellant to "go out the door." Instead, the appellant ran toward Harden and pointed the gun in his face. Harden stated that when he attempted to grab the gun, he and the appellant "tussled" and the appellant fell back. The appellant, with the gun and merchandise in hand, began backing out of the store. Harden explained that as soon as the appellant pulled out the gun, the second man dropped the merchandise he was holding and ran from the store. As the appellant was backing out of the store, Gary Sparks, another loss prevention employee, arrived at the north doors. Sparks held the doors to prevent the appellant from leaving. Thereupon, the appellant reached over his shoulder and shot Sparks, striking him in the left shoulder. Afterward, the appellant ran into the parking lot and fled in a vehicle. Harden took Sparks inside the store and called police, paramedics, and the fire department. Sparks was transported by ambulance to the hospital. Harden spoke with police at the scene and provided them with two videotapes of the incident. One videotape was taken from the podium where he had been standing, and one was from a camera in the security office. At trial, Harden conceded that the videotape from the security office was unclear and difficult to see. Several days later, an officer returned to the store and spoke with Harden and Sparks. Harden and Sparks were asked to identify the perpetrator from a photographic lineup prepared by police.1 Harden selected the appellant's photograph from the lineup which showed six individuals. Sparks was unable to identify the appellant from the lineup, explaining that he saw only the back of the appellant's head and the left side of his face. However, both Harden and Sparks identified the appellant at a pretrial hearing and at trial. At trial, Harden testified that he came face-to-face with the appellant and was able to identify the appellant because of his close proximity to the appellant when the appellant pointed the gun at him. On cross-examination, Harden conceded that his prior testimony regarding the appellant's height was not accurate. However, he stated that the appellant appeared larger at trial, surmising that the appellant had "probably gained a little . . . weight or whatnot." Sparks testified at trial regarding his injuries and showed the jury the scar and disfigurement resulting from the gunshot wound. He related that he continues to have pain and problems with his shoulder, explaining that "[e]very once in awhile it swells up and hurts like when the weather starts acting up." Sparks admitted that he had initially estimated that the perpetrator was five feet, five inches tall, but he explained that the estimate may have been inaccurate because the hat worn by the perpetrator made him appear shorter.

1

The record is unclear as to whether Harden and Sparks viewed the photographic lineup together or individually.

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The appellant was convicted of especially aggravated robbery. Following a hearing, the trial court sentenced the appellant as a Range I violent offender to twenty-five years in the Tennessee Department of Correction, with the sentence to be served consecutively to previously imposed sentences. The appellant now brings this appeal challenging the sufficiency of the evidence to support his conviction. On appeal, the appellant argues that (1) the evidence was insufficient to show serious bodily injury; (2) the evidence was insufficient to sustain a conviction for robbery because the violence did not occur "contemporaneous with" the taking; and (3) the eyewitness identification of the appellant by the security guards was not sufficient to support the conviction. II. Analysis When an appellant challenges the sufficiency of the convicting evidence, the standard for review by an appellate court is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Tenn. R. App. P. 13(e). The State is entitled to the strongest legitimate view of the evidence and all reasonable or legitimate inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions concerning the credibility of witnesses and 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. Id. This court will not reweigh or reevaluate the evidence. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Because a jury conviction removes the presumption of innocence with which a defendant is initially cloaked at trial and replaces it on appeal with one of guilt, a convicted defendant has the burden of demonstrating to this court that the evidence is insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Robbery is defined as "the intentional or knowing theft of property from the person of another by violence or putting the person in fear." Tenn. Code Ann.

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