        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs January 10, 2012

            LARRY C. PITTMAN v. HENRY STEWARD, WARDEN

             Direct Appeal from the Circuit Court for Lauderdale County
                      No. 6498 Joseph H. Walker, III, Judge




                  No. W2011-01632-CCA-R3-HC - Filed July 2, 2012


Petitioner, Larry C. Pitman, filed a petition for habeas corpus relief which the trial court
summarily dismissed without an evidentiary hearing. The petition seeks to set aside
Petitioner’s 2006 convictions for especially aggravated kidnapping, aggravated robbery, and
conspiracy to commit aggravated robbery. As pertinent to this appeal, Petitioner alleged that
the indictment for each offense which led to his jury convictions is defective because each
count of the indictment failed to allege at least one essential element of the criminal charge.
After a thorough review of the briefs and the record on appeal, we affirm the judgment of the
habeas corpus court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS and A LAN E. G LENN, JJ., joined.

Larry C. Pittman, Henning, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney
General; and D. Michael Dunavant, District Attorney General, for the appellee, State of
Tennessee.

                                          OPINION

       In his pleadings to the habeas corpus trial court, Petitioner alleges the following
defects in the three counts of the charging indictment. Regarding the charge of aggravated
robbery, Petitioner asserts that this count “did not provide the Petitioner with notice, that the
State would have to prove that he did not have the owner’s effective consent.” Theft is an
element of robbery. Tenn. Code Ann. § 39-13-401(a). Robbery is an element of aggravated
robbery. Tenn. Code Ann. § 39-13-402(a). Theft occurs when “[a] person . . . with the intent
to deprive the owner of property . . . knowingly obtains or exercises control over the property
without the owner’s effective consent.” Tenn. Code Ann. § 39-14-103. The aggravated
robbery count of the indictment alleges in pertinent part that Petitioner and a co-defendant,

         did unlawfully, knowingly, and/or intentionally by putting in fear and/or by
         violence obtain property, to-wit: money from the person of [the victim], an
         employee of LONE STAR STEAKHOUSE, and accomplished with a
         deadly weapon, to-wit: a knife, a more particular description of which to the
         Grand Jurors aforesaid is unknown, with the intent to deprive the owner of
         the property, in violation of T.C.A. § 39-13-402. . . .

       The correct statute for aggravated robbery was alleged in the indictment. As alluded
to above, this states that robbery is an element of aggravated robbery; the statute defining
robbery states that theft is an element of robbery; the theft statute clearly states that the taking
of property must be without the owner’s effective consent. Clearly, Petitioner was put on
notice of what elements the State was required to prove. See State v. Carter, 988 S.W.2d
145, 194 (Tenn. 1999); State v. Ruff, 978 S.W.2d 95, 100 (Tenn. 1998). Furthermore, the
indictment alleges that the money was taken from the victim by putting him in fear and/or
by violence, and was accomplished by the use of a knife. Clearly, these factual allegations
include the situation of taking the money without the effective consent of the victim.

       As to the conspiracy to commit aggravated robbery count, Petitioner asserts in his
habeas corpus petition that this count is fatally defective because it “did not provide the
Petitioner with notice, that the State would have to prove that there was an agreement
between the Petitioner and another party, to commit the offense of aggravated robbery.”
(Emphasis in original).

       Our criminal code provides,

         (a)    The offense of conspiracy is committed if two (2) or more people
                each having the culpable mental state required for the offense that is
                the object of the conspiracy, and each acting for the purpose of
                promoting or facilitating commission of an offense, agree that one
                (1) or more of them will engage in conduct that constitutes the
                offense.

                ...




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        (d)    No person may be convicted of conspiracy to commit an offense,
               unless an overt act in pursuance of the conspiracy is alleged and
               proved to have been done by the person or by another with whom the
               person conspired.

Tenn. Code Ann. § 39-12-103(a) and (d).

       In Petitioner’s case, the conspiracy count of the indictment alleges in part that
Petitioner and his co-defendant did

        willfully conspire to commit Aggravated Robbery, and in furtherance of that
        conspiracy, [Petitioner] and [co-defendant], acting for the purpose of
        promoting or facilitating the commission of Aggravated Robbery, did agree
        that one or more of them would engage in said offense, to-wit: the
        Aggravated Robbery of LONE STAR STEAKHOUSE. . . .

(Emphasis added).

       Clearly, this assertion by Petitioner is without merit.

       Finally, as to the especially aggravated kidnapping count of the indictment,
Petitioner’s allegation in the petition is not as clear about which element(s) is missing. The
petition states as follows:

        In Tennessee especially aggravated kidnapping is separated into five prongs
        or parts. Each prong or part carries an element that is not ascertained in the
        other. More specifically, the Petitioner was charged with especially
        aggravated kidnapping. The same elements found in prong A, [are] also
        found in prong E, and because the indictment failed to provide notice to the
        Petitioner as to what sub-section, prong or part of the statute to which he
        should prepare a defense to [sic]. The indictment was therefore defective,
        and the judgment is now void.

       The especially aggravated kidnapping count of the indictment alleges in part that
Petitioner,

        did unlawfully and knowingly remove and/or confine [the victim] so as to
        interfere substantially with her liberty and accomplished with a deadly
        weapon, to-wit: a knife, a more particular description of which to the Grand
        Jurors aforesaid is unknown, in violation of T.C.A. § 39-13-305.

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       Tennessee Code Annotated section 39-13-305 provides as relevant herein,

         (a)    Especially aggravated kidnapping is false imprisonment, as defined
                in § 39-13-302:

                (1) Accomplished with a deadly weapon. . . ;

       Tennessee Code Annotated section 39-13-302(a) defines false imprisonment as,

         (a)    A person commits the offense of false imprisonment who knowingly
                removes or confines another unlawfully so as to interfere
                substantially with the other’s liberty.

       The especially aggravated kidnapping count of the indictment clearly sets forth
allegations, in conformity with all the elements of the offense, to adequately charge a
criminal offense and put Petitioner on notice of the criminal charge he faced. This issue is
without merit.

       Petitioner also alleged that he was entitled to habeas corpus relief because the
indictment was returned by an illegally impaneled Grand Jury. Petitioner has not raised this
ground for relief on appeal. Also, while Petitioner has tried to maintain his defective
indictment issue on appeal, he has changed his theory on appeal to a theory not presented in
the habeas corpus trial court. On appeal he does not assert that there are missing elements;
instead he argues that each count of the indictment is defective because alternative bases for
elements are alleged. Specifically, Petitioner states in his brief,

         Appellant contends that each of the indictments failed to provide adequate
         notice, by charging and/or, which deprived the Appellant of what to defend
         [sic]. Did he knowingly or intentionally place the victim in fear[?] Did he
         promote [or] facilitate a conspiracy; and did he remove or confine the
         victim[?] Moreover, upon what element was found by the jury, and upon
         what element was judgment pronounced upon the jury verdict[?]

        It is well settled that an appellant cannot change theories for relief from the trial court
to the appellate court. The new theory is waived on appeal. See State v. Dooley, 29 S.W.3d
542, 549 (Tenn. Crim. App. 2000). The indictments in Petitioner’s case meet all the
necessary requirements of Carter and Ruff to be valid charging instruments. Petitioner is not
entitled to relief in this appeal.




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                             CONCLUSION

The judgment of the habeas corpus court is affirmed.


                                  _________________________________________
                                  THOMAS T. WOODALL, JUDGE




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