        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                               November 10, 2009 Session

                STATE OF TENNESSEE v. CLAUDE PHILLIPS

              Direct Appeal from the Criminal Court for Shelby County
                        No. 06-09192    Chris Craft, Judge




                  No. W2008-02810-CCA-R3-CD - Filed July 7, 2010


The defendant, Claude Phillips, appeals from his convictions of aggravated robbery, a Class
B felony, and aggravated assault, a Class C felony. He was sentenced to twenty years as a
Range II, multiple offender for his aggravated robbery conviction and to a consecutive
sentence of fifteen years as a Range III, persistent offender for his aggravated assault
conviction. On appeal, he argues that the evidence was insufficient to support either
conviction and that he was improperly sentenced. After careful review, we affirm the
judgments from the trial court.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the court, in which R OBERT W.
W EDEMEYER and J.C. M CL IN, JJ., joined.

Robert Wilson Jones, District Public Defender, and Barry W. Kuhn and Dianne Thackery,
Assistant Public Defenders, for the appellant, Claude Phillips.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
William L. Gibbons, District Attorney General; and Colin Campbell, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

        The defendant was involved in an incident at a Sears store located in the Hickory
Ridge Mall in Memphis. The defendant removed a box of merchandise from the store and
tried to return the item to a different Sears location. The second Sears location notified the
Hickory Ridge location that someone had attempted to return the merchandise.
       John Lee, a Sears security manager, testified that he reviewed surveillance videotape
from the store and saw the defendant get out of a vehicle, enter the store, and leave with a
white box containing a mosquito fogger. No alarm was attached to the merchandise. A
search of the store revealed an empty spot on the shelf where the item had been. This item
was the only one in the system and had been on the shelf for some time.

       When the defendant attempted to return the merchandise at the original location, it
was discovered that the store number and shipping number on the item matched the item
missing from the inventory. The security manager confronted the defendant. The defendant
refused to go to the office after being confronted, armed himself with a box cutter, took the
merchandise from behind a register, and exited the store. The defendant told the security
manager that he was leaving with the merchandise and threatened to cut anyone that tried to
follow or stop him. When he noticed employees following him to the parking lot, the
defendant dropped the merchandise and ran toward the security manager. Police arrested the
defendant while he was still in possession of the box cutter.

       During the security manager’s testimony, several photographs were admitted into
evidence including photographs of the merchandise, the defendant holding the merchandise,
and the defendant returning the merchandise. There was also a photograph admitted into
evidence showing the security manager with his hand up while the defendant is behind the
register. The security manager said that he had his hand up because the defendant had the
box cutter in his hand. The final photograph admitted into evidence depicted the defendant
exiting the store with the merchandise in his hand while he was approached by Susan Sadler.

       Susan Sadler, the Sears district security manager, also testified that the defendant
threatened her with a box cutter when she tried to detain him.

        Officer Charles Winbush of the Memphis Police Department testified that he was on
patrol on May 24, 2006, when he received a call that a man had stolen some merchandise and
tried to return it the same day to get a refund. When he arrived at the store, the defendant
was kicking the door. He assisted in detaining the defendant and found a box cutter in one
of his pockets.

        Detective Josh Robinson of the Memphis Police Department testified that while he
was on patrol on May 24, 2006, he received a call that officers were holding a prisoner at a
Sears. Robinson arrived on the scene to find Officer Winbush who gave him a box cutter,
a DVD, and the defendant to transport to the jail at 201 Poplar. He transported the defendant
to the jail for processing and took the evidence to the property evidence storage room.




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         Officer Paul Neely of the Memphis Police Department testified that he came into
contact with the defendant on May 25, 2006, while investigating the aggravated robbery case.
He advised the defendant of his rights before they spoke about the events at Sears. The
defendant acknowledged that he had a box cutter at the Sears and characterized the events
as an “incident” rather than a robbery. The defendant said that Sears got the property that
was taken and that he got “a lot of trouble.” The defendant told the officer that he went into
the Sears with a friend and took the merchandise out of the store. He then tried to exchange
it for a gift card. He told the officer that they tried to exchange it at a different store but were
referred back to the Hickory Ridge Mall location. He took the box to the lawn and garden
section of the store. The clerk asked if the merchandise was used or damaged, and the
defendant said he used his box cutter to show that the fogger was in good condition. He told
the officer that until loss prevention intervened, he was under the impression that he was
going to get a gift card.

       The officer testified that the defendant told him he removed the fogger from behind
the counter and took it outside. The defendant told him that he tried to go back in the store
but the doors were locked. He said that he kicked at the doors until the police arrived and
placed him under arrest. The defendant further stated, “I know this wasn’t no robbery. I had
a box cutter and took the fogger, but it wasn’t no robbery.”

       The defendant was convicted of aggravated robbery, a Class B felony, and of the
aggravated assault of Susan Sadler, a Class C felony. He was sentenced to twenty years as
a Range II, multiple offender for the Class B felony and to fifteen years as a Range III,
persistent offender for the Class C felony, with the sentences to run consecutively.

                                             Analysis

       On appeal, the defendant argues that the evidence was insufficient to support his
convictions. 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). A jury
verdict approved by the trial judge accredits the State’s witnesses and resolves all conflicts
in favor of the State. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994). On appeal, the
State is entitled to the strongest legitimate view of the evidence and all legitimate or
reasonable inferences which may be drawn therefrom. Id. This court will not disturb a
verdict of guilt due to the sufficiency of the evidence unless the defendant demonstrates that
the facts contained in the record and the inferences which may be drawn therefrom are
insufficient, as a matter of law, for a rational trier of fact to find the accused guilty beyond
a reasonable doubt. State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996).
Accordingly, it is the appellate court’s duty to affirm the conviction if the evidence, viewed
under these standards, was sufficient for any rational trier of fact to have found the essential

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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).

       Here, the defendant was convicted of aggravated robbery, defined by statute as “the
intentional or knowing theft of property from the person of another by violence or putting the
person in fear,” which is “accomplished with a deadly weapon or by display of any article
used or fashioned to lead the victim to reasonably believe it to be a deadly weapon.” T.C.A.
§ 39-13-402 (2005). We also note a recent decision from the Tennessee Supreme Court, State
v. Kevin Swift, __ S.W.3d __, No. W2007-00673-SC-R11-CD, 2010 Tenn. Crim. App.
LEXIS 158, at *8 (Tenn. March 25, 2010), concluding that the temporal proximity between
the taking of property and the use of violence or fear is the sole relevant factor in a case of
aggravated robbery. The facts underlying the crime in the Swift opinion are distinguishable
from the facts in the instant case because the taking was complete in Swift before the
defendant used violence.

         In the instant case, the defendant did not deny to the police that he took the
merchandise from Sears. The defendant contends on appeal that the offense of theft had
already occurred and that he was actually in the process of escaping the store when the act
of violence occurred. Our review of the record reflects that the defendant took the same
merchandise twice. The first time he took the item, he escaped without the knowledge of the
Sears employees. He then returned to the store with the merchandise and tried to exchange
it for a store gift card. The defendant relinquished possession of the merchandise to the store
employees, who then verified that it was not damaged and that it, in fact, came from the
Hickory Hill location. He was approached by the loss prevention agents of the store, and he
threatened them with violence, stating that he would cut anyone who tried to stop or follow
him. He then retrieved the merchandise from behind the store counter and left the store. He
dropped the item in the parking lot and, brandishing a box cutter, approached the employees
of the store. This evidence, when considered in the light most favorable to the State, was
sufficient to support the defendant’s conviction for aggravated robbery. The defendant
would not have regained possession of the merchandise without the threat of violence.

        The defendant was also convicted of aggravated assault where he intentionally or
knowingly caused Ms. Sadler to reasonably fear imminent bodily injury by using or
displaying a deadly weapon. T.C.A. § 39-13-102(a)(1)(B). The defendant contends that he
was not charged with the aggravated assault of Ms. Sadler. The record reflects that the
defendant was charged in three counts, the two for which he was convicted as well as the
aggravated assault of Nancy Webb, which was count two of the original indictment. The
State dismissed count two of the indictment prior to trial. The trial court renumbered count
three to count two to avoid suggesting to the jury that the defendant had been charged with

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other crimes. This was done without objection by the defendant. Tennessee Rule of
Criminal Procedure 7(b) allows an indictment to be amended at any time before jeopardy
attaches if no additional or different offense is charged and no substantial right of the
defendant is prejudiced. Because the count was amended prior to the jury being sworn and
did not change the charge against the defendant, he was properly convicted of the aggravated
assault of Ms. Sadler. The evidence at trial reflected that the defendant brandished the box
cutter within two feet of the victim and told the victim that she would be harmed if she tried
to follow him. She also testified that she was afraid. The evidence was sufficient to support
the defendant’s conviction for aggravated assault.

       Next, the defendant argues that the trial court improperly imposed consecutive
sentences. A court may order sentences to run consecutively if the court finds by a
preponderance of the evidence that:

       (1)    [t]he defendant is a professional criminal who has knowingly devoted
              the defendant’s life to criminal acts as a major source of livelihood;

       (2)    [t]he defendant is an offender whose record of criminal activity is
              extensive;

       (3)    [t]he defendant is a dangerous mentally abnormal person so declared by
              a competent psychiatrist who concludes as a result of an investigation
              prior to sentencing that the defendant’s criminal conduct has been
              characterized by a pattern of repetitive or compulsive behavior with
              heedless indifference to consequences;

       (4)    [t]he defendant is a dangerous offender whose behavior indicates little
              or no regard for human life, and no hesitation about committing a crime
              in which the risk to human life is high;

       (5)    [t]he defendant is convicted of two (2) or more statutory offenses
              involving sexual abuse of a minor with consideration of the aggravating
              circumstances arising from the relationship between the defendant and
              victim or victims, the time span of [the] defendant’s undetected sexual
              activity, the nature and scope of the sexual acts and the extent of the
              residual, physical and mental damage to the victim or victims;

       (6)    [t]he defendant is sentenced for an offense committed while on
              probation; or



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       (7)    [t]he defendant is sentenced for criminal contempt.

T.C.A. § 40-35-115(b); see also State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002).
Furthermore, in the event the trial court finds that the defendant is a “dangerous offender,”
it must also determine whether the consecutive sentences (1) are reasonably related to the
severity of the offenses committed; (2) serve to protect the public from further criminal
conduct by the offender; and (3) are congruent with general principles of sentencing. State
v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).

        Here, the record supports the trial court’s order of consecutive sentences. The
defendant has two prior convictions of felony aggravated assault and two convictions for
robbery with a deadly weapon. The defendant also has a number of felony and misdemeanor
convictions for theft. Based on the facts of this case and the defendant’s criminal history,
the trial court believed that he had no hesitation to commit a crime when there was a high
risk to human life. The trial court specifically relied on the fact that the defendant pulled a
knife after being apprehended. The trial court described the defendant as a professional
criminal who has knowingly committed his life to criminal acts as a major source of
livelihood and from which society needed to be protected. The record supports the
conclusion that the defendant had an extensive record and was a professional criminal and
that it did not abuse its discretion in imposing a consecutive sentence.

                                         Conclusion

        Based on the foregoing and the record as a whole, we affirm the judgments from the
trial court.




                                                    ___________________________________
                                                    JOHN EVERETT WILLIAMS, JUDGE




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