        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                 March 30, 2010 Session

        STATE OF TENNESSEE v. CHASE COURTLAND POWELL

                  Appeal from the Criminal Court for Knox County
                    No. 89654     Richard Baumgartner, Judge




                No. E2009-01301-CCA-R3-CD - FILED JUNE 2, 2010


A Knox County Criminal Court jury convicted the defendant, Chase Courtland Powell, of
one count of theft and one count of robbery. The defendant appeals, claiming that the trial
court erred by denying his motion for judgment of acquittal and that the convicting evidence
was legally insufficient to support his robbery conviction. We hold that the evidence
supports his robbery conviction, but we note that the judgments of conviction reflect
sentences for both theft and robbery in contravention of the protections against double
jeopardy. Accordingly, the defendant’s conviction judgment for theft is vacated, and the
jury’s guilty verdict for the theft is merged into the judgment of conviction of robbery. The
defendant’s robbery sentence is affirmed, and we remand solely for the correction and entry
of an appropriate judgment consistent with this opinion.

       Tenn. R. App. P. 3; Judgments of the Criminal Court Vacated in Part;
                         Affirmed in Part; and Remanded

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which J OSEPH M.
T IPTON, P.J., and D. K ELLY T HOMAS, J R., J., joined.

Joshua D. Hedrick, Knoxville, Tennessee, for the appellant, Chase Courtland Powell.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney
General; Randall E. Nichols, District Attorney General; and TaKisha Fitzgerald, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

             On May 20, 2007, the defendant entered Michael’s craft store and, after
selecting an item for purchase, approached the cash register. The cashier, Christina
McDaniel, opened the cash register drawer, and the defendant took money from the drawer
and pushed Ms. McDaniel. He escaped the store but was later apprehended by law
enforcement officers during a traffic stop.

              On July 29, 2008, a Knox County grand jury indicted the defendant for two
counts of robbery, see T.C.A. § 39-13-401 (2006), on the basis of the May 20, 2007 incident.1
The first robbery count asserted that the defendant accomplished the theft of money from
Michael’s by the use of violence against Ms. McDaniel. The second robbery count asserted
that he accomplished the theft by putting Ms. McDaniel in fear.

              After a trial, a Knox County petit jury found the defendant guilty in the first
robbery count of the lesser included offense of theft, see T.C.A. § 39-14-103, and guilty in
the second robbery count as charged. The trial court sentenced the defendant to eight years’
incarceration for robbery, a Class C felony, to run concurrently with an 11 month, 29 day
sentence in the county jail for theft, a Class A misdemeanor. The defendant filed a timely
motion for new trial and notice of appeal.

                                                   Trial

                Ms. McDaniel testified that she worked as a cashier at Michael’s on May 20,
2007, when the defendant approached her checkout station. The defendant had a “little bag
for wedding party favors” that cost “under a dollar.” Ms. McDaniel said, “[The defendant]
handed me a bill and I was just going to give him just a few coins back in change.” She
testified that she opened the cash register and that the defendant shoved her “across the chest
just below the neck” with his forearm. She said, “I stepped back and . . . saw him reach in
and take the cash and I just started screaming, ‘Help. I’m being robbed.’” The defendant
then ran out the door, and the manager of the store ran after him. Ms. McDaniel “just kind
of stood there shaking.” She testified that the incident scared her and that she was “in
disbelief.”

              On cross-examination, Ms. McDaniel clarified that the defendant reached for
the compartment of the cash register drawer that contained $20 bills. Defense counsel then
asked the following line of questions:

                Q       And when [the defendant] grabbed the 20’s you pushed
                        on the drawer, closing his hand in the drawer, right?



        1
         The grand jury also indicted the defendant on two counts of aggravated robbery involving a separate
incident on May 10, 2007, but the State had these charges dismissed.

                                                    -2-
              A      I don’t know. I remember trying to shut the drawer. I
                     don’t remember if I caught his hand or not.

              Q      Well, okay. But you remember that . . . when he grabbed
                     the 20’s your reaction was to shut the drawer?

              A      Yes.

              Q      Okay. And you pushed the drawer shut, right?

              A      I tried to. It wouldn’t close.

              Q      You tried to? It didn’t shut all the way because his hand
                     was in there, right?

              A      Yes.

                            ....

              Q      . . . . And it was after that, that’s when you said he
                     pushed you?

              A      Yes.

              Q      Okay. So, he grabs the 20’s, you shut his hand in the
                     drawer, he pushed you, and then when he pushes you,
                     you go back, right?

              A      Yes.

Ms. McDaniel also agreed that she yelled for help as the defendant ran from the store.

                On redirect-examination, Ms. McDaniel said, “To the best of my knowledge
. . . [the defendant] leaned over, I tried to shut the drawer, he pushed me, grabbed cash, and
ran.”

              On recross-examination, defense counsel attempted to impeach Ms. McDaniel
with a tape recording of her preliminary hearing testimony in which she said that the
defendant grabbed the money and then Ms. McDaniel shut the cash register drawer. Counsel
then asked the following line of questioning:

                                             -3-
              Q       We’ll go through the time line bit by bit. Okay? If I go
                      wrong, I want you to stop me. You rang up the item,
                      right?

              A       Yes.

              Q.      Then the drawer popped open, right?

              A.      Yes.

              Q       Then Mr. Powell grabbed some money, right?

              A       Yes.

              Q       Then you pushed on the drawer, right?

              A       Yes.

              Q       Then he pushed you, right?

              A       Yes.

Ms. McDaniel agreed that she stated the sequence of events to the best of her memory.

                Carolyn Murr testified that she was shopping at Michael’s on May 20, 2007.
She testified that she was in line at another register that faced the defendant as he took money
from Ms. McDaniel’s register. She said, “I was paying for my stuff and the . . . other cashier
started yelling, ‘Help, help, I’m being robbed.’ And so when she did that I looked up.” Ms.
Murr saw the defendant “reach[] over and flip[] up the bar and . . . grab[] money.” She
testified that the defendant then ran out of the store.

               On cross-examination, Ms. Murr testified that the defendant used one hand to
flip the bar and then “grabbed” money from the register with both hands. Ms. Murr agreed
that Ms. McDaniel “pushed the drawer up against [the defendant’s] hand.” She testified that
she did not see the defendant push Ms. McDaniel.

             Detective Andrew Boatman of the Knoxville Police Department testified that
he responded to the scene. He said, “I spoke with the clerk/victim, she told me that the
person had come in presented an item for purchase, once she opened the register that the
suspect pushed her out of the way, grabbed the money and took off through the door.”

                                              -4-
Detective Boatman testified that he examined the video from surveillance cameras but that
no video captured the alleged robbery.

              After the State rested, and the defense moved for a partial judgment of acquittal
on the issue of robbery. The defendant argued that the evidence showed that the defendant
had “grabbed th[e] money” before pushing Ms. McDaniel and that, therefore, the theft had
been completed and that the pushing of Ms. McDaniel was a separate assault. The trial court
noted variances in the order of events as described by Ms. McDaniel and reasoned that the
determination of whether the defendant had completed the theft before pushing Ms.
McDaniel was within the purview of the jury. The court denied the motion.

               The defendant testified that he went to Michael’s on May 20, 2007, “with the
intent to grab money from the register.” He testified that he was “kind of scared about doing
it.” He said that he took an item to the register and that Ms. McDaniel picked up the item,
rang it up, and told him the total amount due. He testified that he gave her a one dollar bill
and that the drawer of the register “popped open.” He said that he then reached into the
drawer with both hands to grab “[t]wenties and tens.” The defendant maintained that he
reached in the drawer without harming Ms. McDaniel and that he did not make any
threatening gesture or statement toward her. He testified that Ms. McDaniel then “tried to
shut the drawer while [his] hands were in the drawer.” He maintained that when she closed
the drawer on his hands, he “jerked them back and ran.” He testified that he tightly held the
money in his hands when he removed them from the register drawer.

               The defendant denied shoving Ms. McDaniel and maintained that he neither
possessed nor displayed any weapon. The defendant admitted to previous convictions of
theft, vandalism, and aggravated assault.

               On cross-examination, the defendant admitted that he used the money to buy
illegal drugs. He also admitted lying about his identity to police officers when he was pulled
over later on May 20, 2007.

              The defense rested, and the jury found the defendant guilty of theft in the first
count and guilty of robbery by placing the victim in fear in the second count. The trial court
announced that the two convictions would merge to reflect a single conviction of robbery.2




       2
         As we discuss later in the opinion, the trial court entered two judgments of conviction for the
charges despite its stated intent to merge the convictions.

                                                  -5-
                                       Issues on Appeal

              The defendant first argues that the trial court erred in denying his motion for
judgment of acquittal at the close of the State’s proof. He also argues that the entire body
of convicting evidence was legally insufficient to support the jury’s verdict.

                                  I. Judgment of Acquittal

                The defendant posits that the State’s evidence, viewed in a light most favorable
to the State, does not support a robbery conviction and that the trial court should have granted
his motion for judgment of acquittal after the State rested its case. We need not tarry long
on this issue, however, because the defendant has waived the issue on appeal by presenting
evidence after the close of the State’s proof. Our supreme court has held that “a defendant
waives his . . . right to appeal from a trial court’s refusal to grant a motion for judgment of
acquittal if the defendant continues to participate in the trial after the close of the State’s
proof.” Finch v. State, 226 S.W.3d 307, 316 (Tenn. 2007) (citing Mathis v. State, 590
S.W.2d 449, 453 (Tenn. 1979)). Accordingly, we treat this issue as waived and move on to
examine the legal sufficiency of the entire evidence presented in the case.

                               II. Sufficiency of the Evidence

               In arguing that the convicting evidence was legally insufficient, the defendant
notes that the jury found the defendant guilty of robbery by placing Ms. McDaniel in fear.
The defendant argues that the record fails to show that Ms. McDaniel’s fear of violence was
“precedent to or concurrent with the taking, and that this fear is what made the taking
possible.”

                The standard by which we evaluate the sufficiency of the convicting evidence
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 (1979); see Tenn. R. App. P. 13(e). Of
critical importance in the present case, this court, in determining the sufficiency of the
evidence, will not reweigh or reevaluate the evidence, State v. Matthews, 805 S.W.2d 776,
779 (Tenn. Crim. App. 1990), and questions concerning the credibility of the witnesses, the
weight and value of the evidence, as well as all factual issues raised by the evidence are
resolved by the trier of fact, not the appellate court, State v. Cabbage, 571 S.W.2d 832, 835
(Tenn. 1978). Also, this court may not substitute its inferences for those drawn by the trier
of fact from the evidence. Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956); Farmer v.
State, 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). On the contrary, this court must afford
the State of Tennessee the strongest legitimate view of the evidence contained in the record

                                              -6-
as well as all reasonable and legitimate inferences which may be drawn from the evidence.
Cabbage, 571 S.W.2d at 835.

              Robbery is “the intentional or knowing theft of property from the person of
another by violence or putting the person in fear.” T.C.A. § 39-13-401(a) (2006). Theft
occurs when a person “knowingly obtains or exercises control over . . . property without the
owner’s effective consent” with the intent to deprive the owner of the property. Id. § 39-14-
103. Our supreme court has recently held that, in distinguishing theft from robbery, “the
temporal proximity between the taking of property and the use of violence or fear is the sole
relevant factor.” State v. Kevin Swift, --- S.W.3d ----, No. W2007-00673-SC-R11-CD, slip
op. at 1 (Tenn. March 25, 2010).

               The defendant argues that the evidence does not show that the defendant used
or threatened violence in taking the money from the cash register. He argues that “the
sequence of events is clear. [The defendant] reached across the counter, grabbed the money,
got his hand shut in the drawer, and then pushed the cashier to get free.” He maintains that
because his pushing of Ms. McDaniel occurred while his hand had already secured the
money, the push was a separate, subsequent assault and “not force or fear that allowed him
to exercise control over this property.” The defendant argues that “[t]here is no evidence to
say that [the defendant] placed the cashier in fear at any time prior to the time he grabbed the
money.”

                At oral argument, defense counsel pointed to the recent Tennessee Supreme
Court case of State v. Kevin Swift. In that case the defendant, Swift, entered a Best Buy store
and removed two video games from their packages and concealed them in his pockets. Kevin
Swift, slip op. at 2. Pursuant to company policy, the sales associate who spotted the theft and
the store’s loss prevention specialist approached Swift as he walked toward the exit of the
Best Buy. Id. Upon confronting him, Swift swung a knife at the two men, causing them to
back away. Id. Swift then escaped from the store. Id. The jury found Swift guilty of
aggravated robbery. Id.

               Our supreme court held that Swift had actually completed the “taking” that
accomplished the theft “when [he] removed the games from their cases and concealed them
in his pants, evincing his intent to deprive Best Buy of the property.” Id., slip op. at 5. Thus,
the supreme court reasoned that Swift’s display of a knife occurred “several minutes after the
taking was complete” and that the evidence was, therefore, insufficient to support the
conviction of aggravated robbery. Id.

              We distinguish the instant case from Kevin Swift. First, unlike Swift’s stealthy
stealing of video games in a store, the defendant’s reaching into the cashier’s drawer

                                               -7-
necessitated the defendant’s use of some force or threat of force to obtain the money. In
Kevin Swift, our supreme court found the theft had been completed upon Swift’s concealing
of the property, id.; however, in the instant case the defendant’s placing his hands around the
money in the cash drawer does not evince the same level of possession of the property as
described in Kevin Swift. Further, in the present case, the use of force occurred in the same
short instance as the theft, unlike the passage of several minutes in Kevin Swift.

               Additionally, the sequence of the defendant’s holding the money and pushing
Ms. McDaniel was not as clear-cut as the defendant’s brief suggests. Our review of the
record shows that, on redirect-examination, Ms. McDaniel first testified that the defendant
pushed her then grabbed the money. Defense counsel then recross-examined her and elicited
a version of events where the defendant reached into the cash drawer before pushing her. We
also note the testimony of Ms. Murr that the defendant reached into the cash drawer only
after Ms. McDaniel’s cry for help. The jury was presented with testimony that Ms. McDaniel
was pushed by the defendant in order for him to obtain the cash and that she cried for help
before the defendant took money from the register. The jury was within its purview in
determining that the defendant’s threatening pushing of the victim occurred prior to or in
commission of the theft, and we will not disturb its finding the defendant guilty of robbery.

                             III. Errors in the Judgment Forms

                Lastly, we note that the defendant was charged with two counts of robbery
presenting alternate theories. The jury found him guilty of the lesser included offense of
theft for the first count of robbery by use of violence and found him guilty as charged of the
second count of robbery by threat of force. The trial court correctly ordered from the bench
that the theft conviction be merged into the robbery conviction; however, our record contains
judgments of conviction for each count. The judgments reflect a sentence of 11 months, 29
days for the theft conviction to run concurrently to an eight-year sentence for robbery.

               As a matter of plain error, see Tenn. R. App. P. 36(b); State v. Lewis, 958
S.W.2d 736, 738 (Tenn. 1997), we hold that principles of double jeopardy bar the
defendant’s multiple convictions of robbery and theft, see State v. Hayes, 7 S.W.3d 52, 56
(Tenn. Crim. App. 1999) (stating that theft is an element of aggravated robbery and,
therefore, a lesser included offense of aggravated robbery, with the result that an accused
may not be convicted of both theft and aggravated robbery when the same facts establish the
offenses). The finding of guilty on the theft count should be merged into the judgment of
conviction of robbery. State v. Addison, 973 S.W.2d 260, 267 (Tenn. Crim. App. 1997)
(“Such a merger and imposition of a single judgment of conviction protects against double
jeopardy and preserves the validity of the jury verdicts for future avoidance of problems
related to unnecessarily dismissed ‘charges’ or ‘convictions’”).

                                              -8-
               The trial court’s judgment should reflect its order from the bench to merge the
theft conviction into the robbery conviction. To effect merger, the proper procedure is to
merge the finding of guilt of theft into the judgment of conviction of robbery. See State v.
Timmy Reagan, No. M2002-01472-CCA-R3-CD, slip op. at 20 (Tenn. Crim. App., Nashville,
May 19, 2004) (“[N]either two sentences nor separate judgments of conviction should [be]
entered, and the one judgment of conviction should reflect the merger.”). On remand, the
trial court should vacate the judgment of conviction of theft and amend the judgment of
conviction of robbery to reflect the merger of both the findings of guilt of theft and robbery.

                                       IV. Conclusion

               After a review of the record, we find the evidence sufficient to support the
defendant’s convictions; however, we remand to the trial court to enter a corrected judgment
reflecting the merger of the theft conviction into the robbery conviction.


                                                    _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




                                              -9-
