        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                 July 13, 2010 Session

                STATE OF TENNESSEE V. TERRY JOHNSON

              Direct Appeal from the Criminal Court for Shelby County
                       No. 08-01531     Lee V. Coffee, Judge




             No. W2009-01253-CCA-R3-CD - Filed September 12, 2011


Following a jury trial Defendant, Terry Johnson, was convicted of aggravated robbery of a
Family Dollar Store in Memphis. The offense involved the theft of merchandise from the
store. The trial court sentenced Defendant to serve twenty years in the Tennessee
Department of Correction. In this appeal, relying upon State v. Owens, 20 S.W.3d 634
(Tenn. 2000) and State v. Swift, 308 S.W.3d 827 (Tenn. 2010), Defendant asserts that the
evidence is legally insufficient to support his conviction for aggravated robbery. Defendant
also argues that the trial court erred by overruling his objection to testimony concerning
another theft related offense by Defendant of the same store, also involving merchandise,
which occurred about two weeks prior to the offense in the case sub judice. After a thorough
analysis, we distinguish Owens and Swift. We also conclude that the admission into evidence
of the prior theft related offense was not error. Accordingly, we affirm the judgment of the
trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS and C AMILLE R. M CM ULLEN, JJ., joined.

Robert Wilson Jones, District Public Defender; Barry W. Kuhn, Assistant Public Defender;
Trent Hall, Assistant Public Defender; and Tim Albers, Assistant Public Defender, for the
appellant, Terry Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney
General, William L. Gibbons, District Attorney General; and Pam Fleming, Assistant District
Attorney General, for the appellee, the State of Tennessee.
                                        OPINION

I. Facts

        Alice Cummings testified that she was the store manager of the Family Dollar Store
on Shelby Drive in Memphis on October 12, 2007. At the 8:00 p.m. closing time on that
date, Ms. Cummings was working at a cash register near the entrance to the store. Laquasha
Newsom, a new employee of the store, was near the front door putting merchandise up and
letting customers, who were inside at closing time, out the locked door.

        Ms. Cummings testified concerning an incident involving Defendant which had
occurred at the store about two weeks before October 12, 2007. She said that on that prior
occasion Defendant, who had been one of several people frequently shoplifting at the store
for several months, left the store with an unidentified man, and both men were carrying black
plastic bags of merchandise, and none of the items in the bags had been paid for. Ms.
Cummings followed Defendant and the other man outside the store. She asked the men to
put down the merchandise. Defendant threw “a hunk of concrete” at Ms. Cummings and hit
her on the shoulder. The concrete bounced off her and struck and broke the store’s door.
She reported this incident to police and she was told to call 9-1-1 if she ever saw Defendant
enter the store again. She did not know Defendant’s name at the time.

        Ms. Cummings saw Defendant enter the store at closing time on October 12, 2007.
She promptly told Defendant that she was going to call the police. Unfazed by the warning,
Defendant continued walking on a path toward the back of the store where Ms. Cummings
saw him get a case of bleach and then some children’s clothes. Defendant carried these items
directly to the front door where Ms. Newsom was standing in Defendant’s way and the door
was locked. Ms. Cummings had told Ms. Newsom that she was calling the police and
instructed Ms. Newsom to not let Defendant out of the store.

       Ms. Cummings saw Defendant approach Ms. Newsom at the front door, put the items
of merchandise on the floor and reach into his back pocket. She then saw Ms. Newsom place
her hands into the air. As a result of what she saw, Ms. Cummings told Ms. Newsom to
allow Defendant to exit through the door. Defendant picked up the items on the floor and
walked out the door and left the premises. One of the customers in the line for the cash
register being operated by Ms. Cummings told Ms. Cummings Defendant’s name.

       Laquasha Newsom testified that on October 12, 2007, she was employed by and
working at the Family Dollar Store on Sheby Drive in Memphis. She stated that what had
been a normal day, changed at closing time at 8:00 p.m. She was standing at the locked door
allowing customers who were inside at closing time to get out while at the same time

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preventing other potential customers from entering the store after closing time. Ms. Newsom
recognized Defendant from her neighborhood (though she did not know his name) and
noticed him standing outside of the door “like I guess like a regular customer.” Defendant
“barged in” to the store when Ms. Newsom unlocked the door to allow customers who were
inside the store to get outside. Ms. Newsom testified that Defendant proceeded to the back
of the store, got a box of Clorox and some children’s clothes, and then came to the front door
that was being blocked by Ms. Newsom.

       Defendant told Ms. Newsom twice to move. When Ms. Newsom did not comply,
Defendant placed the merchandise on the floor and then reached into his back pocket and
held up a knife with only the blade displayed. Ms. Newsom moved away from the door out
of the way of Defendant, who turned a knob unlocking the door, picked up the merchandise
from the floor, and exited the store with the merchandise. She testified the knife handled by
Defendant was pointed at her mid-section. A customer in the store at the time of the incident
gave Ms. Newsom Defendant’s name.

       Linda Stinson testified that she was a customer in line at Ms. Cummings’ cash register
at the time of the incident. She saw Defendant in the store and recognized him because
Defendant’s sister had been married to Ms. Stinson’s cousin. She observed Defendant go
toward the door where Ms. Newsom was standing. Defendant had a box and clothing in his
hands. Defendant told Ms. Newsom to move two or three times with an angry tone in his
voice. Ms. Stinson observed Defendant reach behind his back and she saw a knife when
Defendant lifted up his jacket. Ms. Stinson observed Ms. Newsom move out of the way and
then she saw Defendant leave the store with the box and the clothes. She remained at the
store until the police came and gave the police Defendant’s name.

       Memphis Police Department officer Steven Grimsby testified that he was on duty on
the night of October 12, 2007, and went to the Family Dollar Store to investigate the incident
involving Defendant in this case. He met with Ms. Cummings, Ms. Newsom, and Ms.
Stinson, and from them obtained Defendant’s name and the area where he resided. He did
not check for the availability of video surveillance because “[w]e knew who the suspect was,
no need.”

       Officer Grimsby admitted on cross-examination that he had with him at the scene “one
of these hand held devices where [one] can enter the name that was given to you and show
a photo[graph].” Officer Grimsby entered Defendant’s name, his mug shot was displayed,
and the witnesses at the scene identified Defendant.

      Sergeant Kevin Lundy of the Memphis Police Department testified that in October
2007, while employed as a Memphis Police Officer, he was assigned to a federal task force

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known as the Safe Streets Task Force. Sergeant Lundy stated that the task force was
designed to investigate business robberies, car jackings and bank robberies. He was the lead
investigator of the incident involving Defendant at the Family Dollar Store on October 12,
2007. He did not obtain any of the available video surveillance because one of the
employees “said she could identify the individual responsible.” He also testified that he
obtained an identification that included a full name from a witness who was “a family
member” of the Defendant. Sergeant Lundy prepared photograph lineups from which
Defendant was identified by the witnesses. Sergeant Lundy also interviewed Defendant as
a part of his investigation. After waiving his rights, Defendant gave a statement to Sergeant
Lundy, who testified at trial that “[Defendant] advised that he does shoplift at the Family
Dollar a lot, but he did not pull a weapon.”

II. Analysis

                               A. Sufficiency of the Evidence

       In his first issue, Defendant challenges the legal sufficiency of the evidence to support
his conviction of aggravated robbery. Relying on State v. Owens, 20 S.W.3d 634 (Tenn.
2000) in his brief, and upon State v. Swift, 308 S.W.3d 827 (Tenn. 2010) submitted after
briefing as supplemental authority, Defendant argues that the proof shows his theft of the
merchandise was completed before any assault was committed by him with a knife.
Therefore, Defendant asserts, since the use of violence “must precede or be concomitant or
contemporaneous with the taking to constitute robbery,” Owens, 20 S.W.3d at 636, he cannot
be guilty of any degree of robbery.

        The State counters in its brief that Owens and Swift have significantly different facts
from the case sub judice which distinguishes the holdings in those cases. Furthermore, the
State relies upon the unpublished opinion of this Court in State v. Mario Merritt, No. W2003-
02868-CCA-R3-CD, 2004 WL 2726030 (Tenn. Crim. App. Nov. 30, 2004), perm. app.
denied (Tenn. Feb. 28, 2005). In Merritt, which has remarkably similar facts as the case sub
judice regarding the theft aspect of a robbery offense, this Court affirmed the especially
aggravated robbery conviction of the defendant who was in the process of shoplifting
merchandise and had advanced past the cash registers of the store, but had not yet exited the
store when the violence aspect of robbery occurred – the defendant shot one of the store’s
loss prevention employees. As noted from the citation, Merritt was filed about five years
after Owens; this Court distinguish Owens on the facts. Swift was filed about five years after
Merritt.




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        We begin our analysis of this issue by examining what our Supreme Court has said
is not a robbery offense in the context of theft by “shoplifting.” In Owens, the defendant was
convicted of robbery based upon facts summarized by the Supreme Court as follows:

       An employee of Dollar General Store saw Owens take an article of clothing
       from the store without paying. She alerted A.C. Simmons, the Dollar General
       Store security guard, and Derrick Mims, a store supervisor. Both Simmons
       and Mims gave chase on foot. They chased Owens for about a block. At this
       point, Simmons returned to the store to get his car, Mims continued the pursuit
       on foot. After several blocks, Owens stopped, dropped the article of clothing,
       turned towards Mims, and brandished a box cutter. Owens then walked away,
       leaving the clothing where it lay. Simmons, who had retrieved his car,
       returned to the pursuit and apprehended Owens.

Owens, 20 S.W.3d at 637.

       The Court in Owens succinctly stated the issue on appeal as follows:

       We accepted review, therefore, to determine the temporal relationship between
       the taking and the use of violence (fear) as they together constitute the offense
       of robbery as defined in Tenn. Code Ann. § 39-13-401.

Id. at 636.

       After a very thorough analysis, the Supreme Court held, “that the use of violence or
fear must precede or be contemporaneous with the taking of property from the person to
constitute the offense of robbery under Tenn. Code Ann. § 39-13-401.” Id. at 641.

       Examining the facts of the case, in light of the proper rule of law, the Supreme Court
concluded that the violence or fear caused by the defendant was subsequent to the defendant
taking the property and was temporally remote. Id.

       In Swift, the Supreme Court stated the issue on appeal and its holding as follows:

       We granted appeal in this case to clarify whether the location of the use of
       violence or fear is relevant in distinguishing theft from robbery. We hold that
       the temporal proximity between the taking of property and the use of violence
       or fear is the sole relevant factor.

Swift, 308 S.W.3d at 828.

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        In Swift, the evidence was that the defendant committed theft inside a Best Buy store
in Memphis by surreptitiously removing two PlayStation video games from their boxes and
placing them into his pants pocket. As he walked toward the exit, the defendant was
confronted inside the store by two store employees who were aware, in the words of one
employee, that the defendant had “just stole two games.” Id. 308 S.W.3d at 829. When the
store employees tried to restrain the defendant, he swung at both employees. The employees
noticed that the defendant had a knife in his hand, and fearing for their safety, they both
backed away. The defendant then left the store. Id. The jury convicted the defendant of two
counts of aggravated robbery. Pursuant to an agreement by the defendant and the state, the
trial court reduced one of the convictions for aggravated robbery to aggravated assault. The
defendant appealed only the other conviction for aggravated robbery. This Court affirmed,
and the supreme court reversed and modified that aggravated robbery conviction to
aggravated assault.

       In reaching its ruling, the supreme court in Swift addressed the State’s assertions
regarding the inapplicability of Owens. The Court held:

               The State argues that this case is distinguishable from Owens because
       Mr. Swift’s use of violence and fear occurred inside rather than outside the
       store. We disagree. Our analysis in Owens requires us to ascertain whether
       there is evidence sufficient to elevate theft to robbery without regard to the
       location of the use of violence or fear. The temporal proximity between the
       taking of property and the use of violence or fear is the sole relevant factor.

               To assess the temporal proximity between the taking and the use of
       violence or fear, we must ascertain when the taking was complete. The State
       maintains that the taking was not complete until Mr. Swift attempted to exit
       the store without paying for the games because Best Buy consents to its
       customers holding merchandise while they are in the store. Nothing in the
       record suggests, however, that Mr. Swift had Best Buy’s consent to remove the
       games from their cases and conceal them in his pants. To the contrary, Mr.
       Czyrnik told Mr. Odom to watch Mr. Swift because he had just stolen two
       games, and Mr. Czyrnik testified that he and Mr. Odom waited to approach
       Mr. Swift in an effort to minimize commotion in accordance with Best Buy’s
       policy. We therefore conclude that the taking was complete when Mr. Swift
       removed the games from their cases and concealed them in his pants, evincing
       his intent to deprive Best Buy of the property.

Swift, 308 S.W.3d at 831 (citation omitted).



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        Applying the facts in Swift to the law, the supreme court concluded that the defendant
in Swift did not commit acts of violence or fear, swinging his knife at the store’s employees,
until “several minutes after the taking was complete.” Id.

       As noted above, the State relies upon this Court’s opinion in State v. Merritt, which
was filed after Owens, but before Swift. In Merritt, the defendant’s conviction for especially
aggravated robbery was affirmed, and the defendant’s Tennessee Rule of Appellate
Procedure 11 application to appeal to the supreme court was denied. In Merritt, a loss
prevention security employee of a Goldsmith’s Department Store in Memphis, while
monitoring the store from a control panel, observed the defendant “take several items of
clothing, walk past the cash register, and proceed toward the north doors.” Merritt at *1.
The defendant attracted the attention of the store employee because the defendant and two
colleagues who had just entered the store with him began taking clothes without checking
the sizes or prices. The store employee, Mr. Harden, confronted the defendant inside the
store. The defendant pulled out a pistol and told Mr. Harden to get back and to get on the
ground. Mr. Harden stepped aside to allow the defendant to leave the store. Instead, the
defendant ran to Mr. Harden pointing the gun at Mr. Harden’s face. They struggled for the
gun momentarily, and then the defendant began backing out of the store while holding both
the gun and the merchandise. Another loss prevention employee, Mr. Sparks, held the doors
to prevent the defendant from leaving. At this point the defendant shot Mr. Sparks in the
shoulder. The defendant then ran outside the store and fled in a vehicle. Id.

       The defendant argued on appeal, relying upon Owens, that the evidence was
insufficient to support his conviction for especially aggravated robbery. This court in Merritt
summarized the defendant’s argument as follows:

       Next, the appellant argues that his actions constituted theft, not robbery. . . .
       The appellant contends that at the time he took the clothing and proceeded past
       the checkout counter, the theft had already occurred. He argues that he used
       force only when Harden and Sparks attempted to prevent his escape.
       According to the appellant, “[e]vidence that the threat or violence is used to
       retain property already unforcibly taken, or used to escape, is not sufficient to
       sustain a conviction for robbery.”

Merritt, at *4.

       Our court reviewed the facts of Owens and rejected the defendant’s argument,
distinguishing Owens as set forth:




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       Owens is clearly distinguishable from the instance case in which the violence
       was contemporaneous with the taking of the clothing. In the instant case, the
       appellant was intercepted by Harden after he walked past a cash register and
       attempted to exit the store without paying for the merchandise. Upon being
       confronted, the appellant pulled out a pistol and pointed it in Harden’s face,
       ordering him to get on the ground. Thereafter, when Sparks attempted to
       prevent the appellant from leaving the store, the appellant shot him in the
       shoulder. The appellant then ran from the store and fled in a car. This issue
       is without merit.
Id.

        We agree with the State in this case sub judice that the facts in this case regarding the
theft aspect are much more similar to the facts in Merritt rather than the facts in Owens and
Swift. In Owens, the defendant had taken the merchandise outside the store and had been
chased approximately five blocks before any act of violence or fear occurred. In the case sub
judice, Defendant brandished his knife inside the store in order to get past an employee who
was blocking his access to exit the store through the door. In Merritt, the defendant shot the
employee who was blocking his exit from the store. In Swift, the stolen merchandise had
been concealed from view inside the defendant’s pants before he moved to exit the store and
swung a knife at two employees trying to detain him inside the store. In the case sub judice,
Defendant openly carried the merchandise past the cash register to the door before
brandishing a knife at the employee so that he could leave the store with the merchandise.

       However, Swift mandates that we must determine when the “taking” of the
merchandise was complete in order to assess the temporal proximity between the taking of
the merchandise and the use of violence. Swift, 308 S.W.3d at 831. In Owens, although not
specifically addressed, the taking was obviously complete no later than when the defendant
exited the store with the merchandise. In Swift, our supreme court concluded that the
“taking” was completed when the defendant removed the PlayStation games from their cases
and concealed the games in his pants. Swift, 308 S.W.3d at 831. Again, although not
specifically addressed, the implicit conclusion in Merritt is that the taking of the non-
concealed, openly possessed merchandise was not complete at the time that the defendant
brandished his gun after the defendant “walked past a cash register and attempted to exit the
store without paying for the merchandise.” Merritt, at *4.

       Upon our determination of the sole relevant factor, that is, the temporal proximity of
the taking and the violence in this case, we conclude that the violence committed by
Defendant was concomitant or contemporaneous with the taking of the merchandise. See
Owens, 20 S.W.3d at 636. The evidence was sufficient to sustain the conviction of
aggravated robbery. Defendant is not entitled to relief on this issue.

                                               -8-
                               B. Evidence of Another Crime

        Defendant argues that the trial court committed reversible error when it allowed into
evidence, over Defendant’s timely objections, evidence that Defendant had shoplifted items
from the same store two weeks prior to the incident which was the subject of this trial, and
that Defendant had thrown at and hit Ms. Cummings with a piece of concrete when she tried
to stop him outside during that prior shoplifting incident. Defendant filed, pre-trial, a motion
in limine requesting the trial court to enter an order prohibiting the prosecutor for the State
and any witnesses called by the State, during the trial, from making any reference “that
another case is pending against the Defendant involving the same Family Dollar Store.”
Defendant stated the case number of the other charge and alleged that introduction of
evidence of the other incident during the jury trial “would not be probative on any issue at
trial herein and would, in fact, be highly prejudicial to him.”

        The trial court conducted a hearing on the motion in limine prior to the start of the
trial. Alice Cummings, the manager of the Family Dollar Store, was the only witness who
testified. She testified that beginning in the Spring of 2007, and continuing until October of
the same year, Defendant came into the store and shopifted merchandise once or twice each
week. Notably, Ms. Cummings was not questioned on direct or cross-examination as to how
Defendant was able to successfully avoid arrest on so many shoplifting incidents prior to the
incident on the case sub judice.

        Ms. Cummings specifically testified about a single incident in September 2007,
approximately two weeks prior to the October 12, 2007 incident which is the subject of this
appeal. That September, 2007 incident is the occurrence which was the conduct addressed
in Defendant’s motion in limine. According to Ms. Cummings, she observed Defendant with
another man in the store on that September day and they were carrying out big black bags of
merchandise without paying for the items. Ms. Cummings followed the men outside. She
stated that when she got outside the store, Defendant “threw a hunk of concrete, [it] hit me
in the shoulder and bounced off my shoulder and hit my door, broke the door.” After this
September incident, the police told Ms. Cummings to call them whenever Defendant came
into the store again, and that was why she called the police as soon as Defendant came into
the store on October 12, 2007.

       In the trial court, the State argued that proof of the September incident was admissible
during the trial of the October 12, 2007 incident to prove the identity of Defendant as the
perpetrator; to explain why Ms. Cummings called the police on October 12, 2007 before
Defendant even tried to take any merchandise; to explain why Ms. Cummings had Ms.
Newsom move away from the door because she knew of Defendant’s prior violence; and
because the proof was evidence of Defendant’s motive and intent. Defendant argued in the

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trial court that the evidence was being offered solely, and improperly, as “propensity
evidence.”

       The trial court denied Defendant’s motion in limine and ruled that evidence of the
September 2007 “concrete throwing” shoplifting incident was admissible to prove identity
of Defendant, to prove fear by Ms. Cummings and Ms. Newsom, to show the “complete
story” why Ms. Cummings called 9-1-1 as soon as Defendant came into the store on October
12, 2007, to prove a “common scheme or plan” by Defendant, to show Defendant’s intent
to commit aggravated robbery, and to prove Defendant’s guilty knowledge.

      The trial court did rule that neither the State’s prosecutor nor any of the witnesses
could mention that Defendant had been indicted regarding the September 2007 incident.

       Tennessee Rule of Evidence 404(b) provides that evidence of other crimes or acts,
although not admissible to prove the character of a person in order to show action in
conformity with the character trait, may be admissible for other purposes. Prior to allowing
such proof, the trial court should conduct a jury-out hearing, determine whether there is a
material issue other than conduct conforming with the character trait, and must exclude the
evidence if its probative value is outweighed by the danger of unfair prejudice. Tenn. R.
Evid. 404(b); State v. West, 844 S.W.2d 144, 149 (Tenn. 1992).

       Generally, this rule is one of exclusion, but there are exceptions. State v. Jones, 15
S.W.3d 880, 894 (Tenn. Crim. App. 1999). The generally recognized exceptions to the rule
allow evidence offered to prove motive, identity, intent, absence of mistake, opportunity, or
a common scheme or plan. Bunch v. State, 605 S.W.2d 227, 229 (Tenn. 1980). Our standard
of review of the trial court’s determinations under Rule 404(b) is whether the trial court’s
ruling was an abuse of discretion. State v. Dubose, 953 S.W.2d 649, 652 (Tenn. 1997).

        Identity of Defendant as the perpetrator was not a contested issue such that the prior
bad act was admissible for that reason. Two eye witnesses to the crime, including the named
victim of the aggravated robbery, clearly could identify Defendant from knowing of him
prior to commission of the crime. In addition the police declined to even look at film from
surveillance cameras which recorded the crime in progress because identity was not an issue.

        However, the evidence was relevant to prove Defendant’s intent when he “barged”
into the store right at closing time, and openly took possession of merchandise and by-passed
the cash register on his way to the front door. It was also admissible as contextual
background evidence to explain why Ms. Cummings called 9-1-1 before Defendant had even
taken possession of any merchandise. We do not see how the evidence of the prior act
proves a motive for Defendant to commit the later offense on October 12, 2007, except that

                                             -10-
Defendant may have believed he could “get away with the crime again,” which in essence
is inadmissible propensity evidence. Finally, it stretches logic for us to conclude the prior
bad act evidence proves the reason Ms. Cummings told Ms. Newsom to get away from the
door and allow Defendant to exit the store. Indeed, despite knowing very well Defendant’s
capability for violence toward a person trying to impede his exit during a shoplifting incident,
Ms. Cummings still told Ms. Newsom, who was a brand new employee, to stand at the door
and not allow Defendant to leave. Only after she saw Defendant reach behind his back and
Ms. Newsom’s hands go up did Ms. Cummings tell her to move out of the way. However,
despite the fact that some of the reasons given by the trial court in its ruling were in error, the
evidence was admissible for the other reasons stated. Error, if any, was therefore harmless.
Defendant is not entitled to relief on this issue.

                                        CONCLUSION

       After a thorough review we affirm the judgment of the trial court .

                                                      ___________________________________
                                                      THOMAS T. WOODALL, JUDGE




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