         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs December 4, 2001

                    STATE OF TENNESSEE v. TONY WALKER

                   Direct Appeal from the Circuit Court for Fayette County
                           No. 4859   Jon Kerry Blackwood, Judge



                    No. W2001-00929-CCA-R3-CD - Filed March 25, 2002


The Appellant, Tony Walker, appeals the verdict of a Fayette County jury finding him guilty
of attempted aggravated robbery. On appeal, Walker raises the single issue of whether the evidence
is sufficient to support his conviction. After a review of the record, we affirm.

               Tenn. R. App. P. 3; Judgment of the Circuit Court is Affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and DAVID
H. WELLES, J., joined.

Thomas M. Minor, Somerville, Tennessee, for the Appellant, Tony Walker.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Kim R.
Helper, Assistant Attorney General; and Elizabeth T. Rice, District Attorney General, for the
Appellee, State of Tennessee.

                                             OPINION

                                       Factual Background

        On October 16, 1999, at approximately 10:00 p.m., the Appellant, along with James Hill, Jr.,
entered Wayne’s Grocery, a “mini-mart” store in Fayette County. Hill was armed with a shotgun,
and both men were wearing panty hose type stockings over their faces. Hill “pointed at and waved
[the gun] at everybody,” telling them to “get on the floor.” The Appellant stood in the store entrance
looking outside. At the time, five people were in the store; three customers and two employees.
Because no one in the store followed Hill’s demands, he repeated the instructions several times.

       Upon hearing the commotion, the store owner, Wayne Hampton, emerged from his office
and walked to the front of the store. Hampton observed Hill who was still “waving the shotgun
around” and “telling people to get down on the floor.” Hampton, recognizing Hill’s voice,
exclaimed, “I recognize who you are. And why are you doing this?” At this point, the Appellant
and Hill removed the stockings covering their faces. Hill then pretended he wanted to pawn the
shotgun. Hampton, going along with the pretext, examined the single barrel shotgun and told Hill
that he was not interested. After Hampton returned the shotgun to Hill, he advised Hill that he was
calling the sheriff’s department. At this point, Hill and the Appellant immediately left the store
building. During this entire exchange, the Appellant, who was leaning against the wall beside the
door and standing “there with his arms folded,” did not speak. While the attempted robbery was in
progress, one of the customers came to the cash register, got change, and returned to another part of
the store to continue his game of pool. At some point the cash register was left unattended but the
Appellant, who was within a few feet of the register, never attempted to steal any money.

       On November 22, 1999, the Appellant and Hill were indicted for attempted aggravated
robbery. On August 9, 2000, Hill was found guilty by a jury and a mistrial was declared as to the
Appellant. Upon retrial by a jury on December 14, 2000, the Appellant was found guilty. The
Appellant was sentenced to a term of fifteen (15) years as a Range III persistent offender.

                                                   ANALYSIS

        The Appellant argues that the proof was insufficient to establish that he knowingly attempted
to obtain property from the victim by violence as charged in the indictment. A jury conviction
removes the presumption of innocence with which a defendant is cloaked and replaces it with one
of guilt, so that on appeal, a convicted defendant has the burden of demonstrating that the evidence
is insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). In determining the sufficiency
of the evidence, this court does not reweigh or reevaluate the evidence. State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). Likewise, it is not the duty of this court to revisit questions of
witness credibility on appeal, that function being within the province of the trier of fact. State v.
Adkins, 786 S.W.2d 642, 646 (Tenn. 1990); State v. Burlison, 868 S.W.2d 713, 719 (Tenn. Crim.
App. 1993). Instead, the Appellant must establish that the evidence presented at trial was so
deficient that no reasonable trier of fact could have found the essential elements of the offense
beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.
Ct. 2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994). Moreover, the State is
entitled to the strongest legitimate view of the evidence and all reasonable inferences which may be
drawn therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992).

       In this case, the Appellant and his accomplice were indicted for attempted aggravated robbery
based upon a theory of “violence” as opposed to “fear.”1 In State v. Fitz, 19 S.W.3d 213, 217 (Tenn.


         1
          Robbery is defined as “the intentional or know ing theft of property from the person of another by violence
or putting the person in fear.” Tenn. Code Ann. § 39-13-401(a) (1997). The indictment charged in relevant part as
follows:

         [T]hat James Hill, Jr. And [Appellant] did unlawfully, feloniously and knowingly attempt to comm it
         the criminal offense of Aggravated Robbery, and obtain property from the person of Wayne
                                                                                                       (con tinued...)

                                                         -2-
2000), our supreme court “concluded that the plain meaning of the element of violence as used in
the offense of robbery pursuant to Tenn. Code Ann. § 39-13-401 is evidence of physical force
unlawfully exercised so as to damage, injure or abuse.” The Appellant argues that because his
conduct did not involve physical contact or physical force so as to damage, injure or abuse another,
as required by Fitz, his conviction cannot stand. In a recent decision, State v. Allen, No. E1998-
00416-SC-R11-CD (Tenn. at Knoxville, Feb. 22, 2002) (for publication), our supreme court
provided further guidance with regard to the definition of violence:

       Pointing a deadly weapon at [a] victim is physical force directed toward the body of
       the victim. There is no question that such force is unlawfully exercised so as to
       abuse the victim . . . . We reject the contention that pointing a gun at the victim does
       not constitute violence because there is no physical contact. This court did not hold
       in Fitz that physical contact is the sole means of establishing violence. While
       physical contact may rise to the level of violence, physical contact is not required to
       prove violence . . . .

        Our law provides that “[a] person is criminally responsible as a party to an offense if the
offense is committed by the person’s own conduct, by the conduct of another for which the person
is criminally responsible or by both.” Tenn. Code Ann. § 39-11-401 (1997). The proof in this case
established that the Appellant and his accomplice, both wearing stockings which covered their faces,
entered the grocery with the accomplice brandishing a shotgun and ordering the customers and
employees to “get on the floor.” The acts of the accomplice in “[pointing] at and [waving the
shotgun] at everybody” constituted violence within the meaning of Fitz and Allen. The accomplice’s
display of the shotgun satisfied the element of aggravated robbery which requires that a robbery be
“accomplished with a deadly weapon.” Tenn. Code Ann. § 39-13-402(a) (1997). Moreover, we find
the proof sufficient to permit a rational jury to conclude that the Appellant acted with the intent to
promote or assist in the crime by serving as a “look-out” during the commission of the attempted
aggravated robbery. Accordingly, we find the evidence legally sufficient to support the jury’s
verdict. The Appellant’s judgment of conviction for attempted aggravated robbery is affirmed.




                                                         ___________________________________
                                                         DAVID G. HAYES, JUDGE




       1
        (...continued)
       Hampton, by violence accompanied with a deadly weapon, . . . with the intent to deprive Wayne
       Hamp ton o f the property w ithou t Wa yne Hamp ton’s effective co nsen t.



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