         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs November 16, 2004

                  STATE OF TENNESSEE v. ERIC THOMAS NOE

                 Direct Appeal from the Criminal Court for McMinn County
                            No. 03-231    R. Steven Bebb, Judge



                     No. E2004-00550-CCA-R3-CD - Filed January 7, 2005


Following a jury trial, the Defendant was convicted of robbery. He was sentenced to six years in the
Department of Correction. On appeal he challenges the sufficiency of the convicting evidence and
argues that the trial court erred in sentencing him to the maximum term of six years. We affirm the
Defendant’s conviction but modify his sentence to five years.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which NORMA MCGEE OGLE, J., joined.
DAVID G. HAYES, J., filed an opinion dissenting in part.

Lee Ledbetter, Athens, Tennessee and Julie Rice, Knoxville, Tennessee, for the appellant, Eric
Thomas Noe.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
Jerry N. Estes, District Attorney General; and Amy Reedy, Assistant District Attorney General, for
the appellee, State of Tennessee.

                                              OPINION

         At about midnight on June 4, 2003, Dorothy Rice was working as a cashier at a Wal-Mart
store in Athens, Tennessee. Her shift ended at midnight, and she had just emptied the contents of
her cash register drawer into a bag. A co-worker, Debbie McDowell, was standing near her at the
cash register, preparing to assume the duties of cashier at that register for the upcoming shift. At that
moment, a man whom Ms. McDowell identified as the Defendant, came up behind Ms. Rice and
according to Ms. McDowell, “pushed her, reached over her shoulder and grabbed the money bag off
the till.” Ms. McDowell tried to grab the bag, but the Defendant fled out the store with it. Ms.
McDowell testified that she had known the Defendant for two-and-a-half or three years and was
absolutely certain that the man who pushed Ms. Rice and fled with the money bag was the
Defendant.
        Ms. Rice did not see the perpetrator’s face but testified that she had just finished putting the
contents of the cash register into the bag, “[A]nd then somebody pushed me into the counter, and
pushed me on the shoulder, grabbed the bag, and all I saw was a hand. . . .” She testified that the
contact with the Defendant hurt her shoulder, and stated that her shoulder was sore for a couple of
days thereafter. She stated that the force of the Defendant’s contact was such that the cash register
drawer or “till” was knocked to the floor. She also stated that the incident happened very quickly
and that she did not actually become frightened until after the Defendant had fled.

       The next morning the Defendant was arrested at his grandmother’s residence. At the time
the Defendant was arrested, the officers found five hundred and forty-five dollars in cash, some of
which was in his billfold and some of which was behind the chair in which he had been seated. The
Defendant advised the officers that he did not know where the money had come from. Neither the
money bag nor any cancelled checks or credit card receipts were recovered.

        The Defendant was indicted for one count of robbery. See Tenn. Code Ann. § 39-13-401.
A jury found him guilty as charged. Following a sentencing hearing, he was sentenced to six years
in the Department of Correction. This appeal followed.

       As his first issue, the Defendant argues that the evidence presented at trial was insufficient
to support the verdict of guilty of robbery beyond a reasonable doubt.

        Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in criminal
actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support
the findings by the trier of fact of guilt beyond a reasonable doubt.” A convicted criminal defendant
who challenges the sufficiency of the evidence on appeal bears the burden of demonstrating why the
evidence is insufficient to support the verdict, because a verdict of guilt destroys the presumption
of innocence and imposes a presumption of guilt. See State v. Evans, 108 S.W.3d 231, 237 (Tenn.
2003); State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913,
914 (Tenn. 1982). This Court must reject a convicted criminal defendant’s challenge to the
sufficiency of the evidence if, after considering the evidence in a light most favorable to the
prosecution, we determine that any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v.
Hall, 8 S.W.3d 593, 599 (Tenn. 1999).

         On appeal, the State is entitled to the strongest legitimate view of the evidence and all
reasonable and legitimate inferences which may be drawn therefrom. See Carruthers, 35 S.W.3d at
558; Hall, 8 S.W.3d at 599. A guilty verdict by the trier of fact accredits the testimony of the State’s
witnesses and resolves all conflicts in the evidence in favor of the prosecution’s theory. See State
v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions about the credibility of 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, and this Court will not re-weigh or re-evaluate the evidence. See Evans, 108 S.W.3d
at 236; Bland, 958 S.W.2d at 659. Nor will this Court substitute its own inferences drawn from



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circumstantial evidence for those drawn by the trier of fact. See Evans, 108 S.W.3d at 236-37;
Carruthers, 35 S.W.3d at 557.

        Robbery is defined as the intentional or knowing theft of property from the person of another
by violence or putting the person in fear. See Tenn. Code Ann. § 39-13-401. A person commits
theft of property if, with intent to deprive the owner of property, the person knowingly obtains or
exercises control over the property without the owner’s effective consent. See Tenn. Code Ann. §
39-14-103.

        The Defendant’s specific argument on appeal is that the State did not prove beyond a
reasonable doubt that the theft of the property from Wal-Mart was accomplished “by violence or
putting the person in fear,” as required by the definition of robbery. The argument focuses on the
fact that the theft occurred so quickly that neither Ms. Rice nor Ms. McDowell were afraid until after
the theft was over and therefore any “fear” did not occur until after the crime was committed.
Therefore, he argues that the only way the robbery conviction can be upheld is if the State proved
that the theft occurred by “violence.” He asserts that the State’s proof failed in this regard. We
disagree.

        In context of the definition of robbery, our Supreme Court has defined violence as “physical
force unlawfully exercised so as to injure, damage, or abuse.” State v. Fitz, 19 S.W.3d 213, 217
(Tenn. 2000). The evidence presented at trial was uncontroverted that the Defendant pushed Ms.
Rice from behind immediately prior to grabbing the money bag. Ms. Rice testified that he pushed
her on her shoulder with sufficient force to knock her into the counter, causing her to either drop the
cash register drawer or knock it off onto the floor. She stated that the contact hurt her shoulder,
making it sore for a couple of days. Immediately after the incident, she was frightened. We believe
that these facts clearly establish that the theft was committed with violence: physical force
unlawfully exercised so as to injure, damage or abuse. We therefore conclude that the evidence
presented at trial is sufficient to support the jury’s verdict of guilty of robbery beyond a reasonable
doubt.

        In his second issue on appeal, the Defendant argues that the trial court erred by enhancing
his sentence to six years based upon facts not reflected in the jury verdict or admitted by the
Defendant, in contravention of the recent holding of the United States Supreme Court in Blakely v.
Washington, 124 S.Ct. 2531 (2004). In Blakely, the Supreme Court determined that, under the
federal constitution, a defendant’s sentence could be increased only if the enhancement factors relied
upon by the judge were based on facts reflected in the jury verdict or admitted by the Defendant. See
id., 124 S.Ct. at 2537. The Court concluded that “every defendant has the right to insist that the
prosecutor prove to a jury all facts legally essential to the punishment.” 124 S.Ct. at 2543. The
Blakely decision calls into question the validity of Tennessee’s sentencing scheme, insofar as that
scheme permits the trial courts to increase a defendant’s presumptive sentence based upon
enhancement factors found by the trial judge.




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         In this case, the Defendant was convicted of a Class C felony and sentenced as a Range I
standard offender. His sentencing range was thus three to six years, and the presumptive sentence
for his crime was three years. See Tenn. Code Ann. §§ 40-35-112, -210(c). The trial court enhanced
the Defendant’s sentence to the maximum of six years based upon the existence of five enhancement
factors: (1) the Defendant has a previous history of criminal convictions or criminal behavior in
addition to those necessary to establish the appropriate range, (2) the offense involved more than one
victim, (3) a victim of the offense was particularly vulnerable because of age or physical disability,
(4) the Defendant has a previous history of unwillingness to comply with the conditions of a sentence
involving release in the community, and (5) the Defendant, who was provided with a court-appointed
counsel, willfully failed to pay the administrative fee assessed. See Tenn. Code Ann. § 40-35-
114(2),(4),(5),(9), (22). Pursuant to Blakely, it appears that the trial court’s enhancement of the
Defendant’s sentence for any reason other than the Defendant’s previous history of criminal
convictions was erroneous.

        Even if Blakely did not prohibit application of the enhancement factors, based upon our
review of the record, we do not believe the enhancement factors based upon a victim of the offense
being particularly vulnerable because of age or physical disability, or the enhancement factor based
upon the Defendant willfully failing to pay the administrative fee assessed for his court-appointed
counsel, are warranted. We find no evidence in the record sufficient to establish the application of
these factors.

         Nevertheless, the Defendant does have a lengthy and extensive previous history of criminal
convictions. Although the pre-sentence report includes numerous arrests for offenses which do not
reflect convictions, and although the Defendant took issue with some parts of his prior criminal
history as reported in the pre-sentence report, the following convictions are apparent: speeding,
littering, criminal trespass, public intoxication, possession of marijuana, driving while under the
influence, using a false identification, four convictions for theft, and two convictions for burglary.

        The State argues that the Defendant waived any Blakely challenge because he failed to raise
the issue at sentencing based upon Apprendi v. New Jersey, 566 U.S. 466, 490 (2000). The State
also argues that any error the trial court committed in considering improper enhancement factors
based upon Blakely is harmless beyond a reasonable doubt, because these enhancement factors
would have been found by the jury if submitted and therefore the error does not undermine the
purposes of the jury trial guarantee. Nevertheless, it is our view that the Defendant is entitled to have
his sentence modified due to the misapplication of enhancement factors. Therefore, based upon our
de novo review of the record, we have determined that the Defendant’s previous history of criminal
convictions is sufficient to warrant enhancement of his sentence from the presumptive minimum of
three years to the enhanced sentence of five years.

       Accordingly, the Defendant’s conviction for robbery is affirmed. The sentence is modified
from a term of six years to a term of five years, to be served in the Department of Correction.




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      ___________________________________
      DAVID H. WELLES, JUDGE




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