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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
Assigned on Briefs January 11, 2011 STATE OF TENNESSEE v. TONY RAY BILLINGS
Direct Appeal from the Criminal Court for Davidson County No. 2008-B-868 Seth Norman, Judge

No. M2010-00624-CCA-R3-CD - Filed April 14, 2011

A Davidson County jury convicted the Defendant, Tony Ray Billings, of aggravated robbery, and the trial court sentenced him as a Range II, Multiple Offender to fourteen years in the Tennessee Department of Correction ("TDOC"). On appeal, the Defendant contends that: (1) the trial court erred when it allowed the State to amend the indictment; (2) the trial court committed plain error when it denied the Defendant's motion to exclude identification testimony; and (3) the evidence is insufficient to sustain his conviction. After a thorough review of the record and applicable authorities, we affirm the trial court's judgment. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which D AVID H. W ELLES and J ERRY L. S MITH, JJ., joined. Dwight E. Scott, Nashville, Tennessee, for the Appellant, Tony Ray Billings. Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Dan Hamm, Assistant District Attorney General, for the Appellee, State of Tennessee. OPINION I. Facts This case arises from the Defendant's taking the purse of the victim, Brandy Whitaker, whom he threatened with a knife after she chased him. A Davidson County grand jury indicted the Defendant for aggravated robbery, and the following evidence was presented at his trial: Brandy Whitaker testified that, while she was working at a child care facility on September 19, 2007, she walked next door to a Dollar General store to purchase something

for her lunch. On her way back from the store, she was approached by a man, whom she identified as the Defendant, who asked to use her cell phone. Whitaker denied this request, but the Defendant continued to walk beside her. Whitaker told him that she was going back to work and, feeling both scared and nervous, began walking "kind of fast" to hurry and return to work. The Defendant continued to walk beside her, saying nothing, until she got to the door of the daycare facility. Whitaker recalled that, when she reached the daycare entrance, her grandmother came to open the door for her. Whitaker attempted to signal to her grandmother that she should not allow the Defendant to enter by giving her grandmother a "look." At this point, the Defendant grabbed Whitaker's Coach purse valued at around $450, breaking the straps, and took off running. Whitaker testified that, acting on "instinct," she began running after the Defendant, whom she noticed was wearing a white shirt, jean shorts, and white tennis shoes. When Whitaker caught the Defendant behind the Dollar General store, he pulled out a knife with a five or six-inch blade and told her to "back up or [he would] slit her throat." Whitaker, who was about five feet from the Defendant, stood still and said nothing. The Defendant then unzipped her purse, took out $99 in cash, threw her purse behind her on the ground, and ran off again. Whitaker left her purse on the ground and chased the Defendant to the front of the Dollar General store, where several customers were located. The Defendant got into a plum colored Lexus and left the store parking lot. Whitaker collapsed from exhaustion, and a bystander who had seen her in pursuit of the Defendant began following the man in his truck. The police arrived at the Dollar General store, where Whitaker had remained and told her that they had a suspect in custody. The police took Whitaker to a hotel where the Defendant was located, and she identified him as the person who had robbed her. On cross-examination, Whitaker agreed the Defendant did not brandish a weapon when he first took her purse. Detective Joe Barbill, with the Goodlettsville Police Department, testified he responded to a police dispatch of a robbery suspect driving a Lexus. The suspect had been apprehended at a motel near the robbery. Officers had apprehended the Defendant on a balcony near a room in the motel where he had been staying. After the Defendant was transported to the police station, the Defendant agreed to give a statement, and the detective interviewed him. During the course of the interview, the Defendant admitted robbing Whitaker but denied having a weapon. In the Defendant's motel room, however, police found a pocket knife. Police did not recover any money from the Defendant's room.

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Alex Moore, a detective with Metro Nashville Police Department, testified that on the day of the robbery in this case, he was conducting an unrelated surveillance at the motel where the Defendant was staying. He saw the Defendant, dressed in a "grey muscle shirt" and black shorts, leave the motel driving a silver Lexus. The detective wrote down the tag number on a legal pad in his car. Detective Moore then heard a radio dispatch call about police looking for a vehicle, and the dispatch call provided the tag number. Detective Moore noted that the tag number provided was the same as the tag number he had written down on his legal pad. Detective Moore testified that, as he was leaving the motel after hearing the dispatch call, he saw the Defendant standing in a breezeway of the motel. The detective detained the Defendant until detectives arrived. On cross-examination, Detective Moore testified that he patted the Defendant down when he arrested him, and the Defendant was not in possession of a gun or a knife. Based upon this evidence, the jury convicted the Defendant of one count of aggravated robbery, and the trial court sentenced him to fourteen years in the TDOC. II. Analysis On appeal, the Defendant contends that: (1) the trial court erred when it allowed the State to amend the indictment; (2) the trial court committed plain error when it denied the Defendant's motion to exclude identification testimony; and (3) the evidence is insufficient to sustain his conviction. A. Amendment of Indictment The Defendant contends the trial court erred when it allowed the State to amend the indictment. Acknowledging his failure to object to the amendment, he asserts his failure was "erroneous[]." The State counters that the Tennessee Rules of Criminal Procedure allow the State to amend its indictment, with or without the Defendant's consent, before jeopardy has attached, although the rules do not allow the State to add additional charges. See Tenn. R. Crim. P. 7(b). The record evinces that, before the jury was sworn-in, the State informed the trial court that its indictment contained a typographical error. The indictment correctly listed the Defendant's name as "Tony Ray Billings" on the heading of the indictment but incorrectly listed his name as "Tony Ray Phillips" in the body of the indictment. The State asked to amend the indictment to correct this error. Defendant's counsel was asked if he had any objection, and he responded, "No." The trial court allowed the amendment. -3-

An accused is constitutionally guaranteed the right to be informed of the nature and cause of the accusation. State v. Lindsey, 208 S.W.3d 432, 437-38 (Tenn. Crim. App. 2006) (citing U.S. Const. amend. 6, 14; Tenn. Const. art. I,

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