         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs August 5, 2003

                  STATE OF TENNESSEE v. TITUS CHAMPION

                  Direct Appeal from the Circuit Court for Gibson County
                           No. 7136    Clayburn Peeples, Judge



                  No. W2002-02829-CCA-R3-CD - Filed December 15, 2003


The appellant, Titus Champion, was convicted of robbery pursuant to a bench trial in the Gibson
County Circuit Court. The trial court sentenced the appellant as a Range II multiple offender to six
years incarceration in the Tennessee Department of Correction. On appeal, the appellant contends
that the State did not prove the element of violence as was alleged in the indictment charging the
appellant with robbery. Finding the appellant’s argument to have merit, we modify his conviction
for robbery to a conviction for theft under $500 and remand to the trial court for sentencing.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Modified and
                                       Remanded.

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which THOMAS T. WOODA LL and
ROBERT W. WEDEMEYER , JJ., joined.

Periann S. Houghton, Trenton, Tennessee, for the appellant, Titus Champion.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General;
Garry Brown, District Attorney General; and Edward L. Hardister, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

                                     I. Factual Background

       On January 28, 2002, the Gibson County Grand Jury returned an indictment charging the
appellant with robbery by “unlawfully, knowingly and by violence” obtaining cash from the victim,
Donna Kerns. A bench trial on this charge was held in the Gibson County Circuit Court on June 24,
2002.

       At trial, Donna Kerns testified that on the day of the offense she was working as a Special
Agent for the 30th Judicial District Drug Task Force. At approximately 5:30 p.m. on October 30,
2001, Kerns, who was working undercover, accompanied a female confidential informant “to the
area of Front and Vine” in order to purchase crack cocaine. Kerns drove to the area which was
known for drug activity. Immediately upon arrival, the two women were “waved over” by several
people. An individual approached the front passenger side window of the vehicle and began
conversing with the confidential informant. Meanwhile, the appellant approached the driver’s
window and engaged Kerns in conversation.

        The appellant showed Kerns a small amount of “whitish rock” that, due to her experience as
a police officer, Kerns believed to be crack cocaine. Kerns held $200 in one hand and informed the
appellant that she wanted to purchase $100 worth of crack cocaine. The appellant again displayed
the crack cocaine. Kerns advised the appellant that she would not pay $100 for the small amount
of crack cocaine the appellant possessed. However, Kerns offered the appellant $50 for the crack
cocaine.

       Kerns testified that the appellant “was very interested in the money” that she held in her hand.
Therefore, when Kerns began counting the cash for the purchase of the crack cocaine, she moved
toward the center of the car to avoid the appellant’s reach. The appellant repeatedly attempted to
grab the cash in Kerns’ hand. Kerns informed the appellant that he would have to wait until she
counted the correct amount of cash.

        Kerns stated that the appellant then“reached in and – with one hand and grabbed my hand
and took the money with the other hand and ran.” Kerns elaborated, explaining that “I took out two
twenties and a ten with this hand and I put the other money – just because – he was awfully antsy,
if you know what I mean, and I tucked it under my leg like and then before I could even turn back
around . . . he reached in and snatched the money and took off.” The appellant did not give Kerns
any crack cocaine in exchange for the money. Kerns did not pursue the appellant because she
believed that to do so would be a “bad idea.”

       The appellant testified in his own behalf. He related his own version of events as follows:

               Well, it was one fellow, he was over there serving them some crack
               cocaine and while she was serving, I went to the driver’s side and I
               looked in there and while they was making their exchange she – I
               don’t know what it was. She got the plastic and she did it like this
               here. . . . I guess she was throwing it out the window and I grabbed,
               but wasn’t nothing in it and then she was telling the other lady that I
               had done ripped her off, so I just walked off away from the car and
               then that was that on that.

The appellant maintained that he did not take any money from Kerns, nor did he ever grab her hand.

       At the conclusion of the bench trial, the trial court summarily stated, “It’s a robbery in the
technical sense. I believe it is and I do find you guilty . . . of simple robbery.” At the sentencing


                                                 -2-
hearing, the trial court sentenced the appellant to six years incarceration. The appellant timely
appealed his robbery conviction, arguing that the proof was insufficient to prove robbery by violence
as was alleged in the indictment.

                                            II. Analysis

        On appeal, a jury conviction removes the presumption of the appellant’s innocence and
replaces it with one of guilt, so that the appellant carries the burden of demonstrating to this court
why the evidence will not support the jury’s findings. See State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The appellant must establish that no “reasonable trier of fact” could have found the
essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 2789 (1979); Tenn. R. App. P. 13(e).

        Accordingly, on appeal, the State is entitled to the strongest legitimate view of the evidence
and all reasonable inferences which may be drawn therefrom. See State v. Williams, 657 S.W.2d
405, 410 (Tenn. 1983). In other words, questions concerning the credibility of witnesses and the
weight and value to be given the evidence, as well as all factual issues raised by the evidence, are
resolved by the trier of fact, and not the appellate courts. See State v. Pruett, 788 S.W.2d 559, 561
(Tenn. 1990).

        Tennessee Code Annotated section 39-13-401(a) (1997) (emphasis added) defines robbery
as “the intentional or knowing theft of property from the person of another by violence or putting
the person in fear.” “A person commits theft of property if, with the intent to deprive the owner of
property, the person knowingly obtains or exercises control over the property without the owner’s
effective consent.” Tenn. Code Ann. § 39-14-103 (1997).

        As we noted earlier, the appellant was charged with robbery by “unlawfully, knowingly and
by violence” taking cash from Kerns. In State v. Fitz, 19 S.W.3d 213, 216 (Tenn. 2000), our
supreme court examined what evidence constituted proof of “violence.” The court concluded that
the plain meaning of the element of violence as used in the offense of robbery pursuant to Tennessee
Code Annotated section 39-13-401 is “physical force unlawfully exercised so as to damage, injure
or abuse.” Id. at 217; see also State v. Allen, 69 S.W.3d 181, 186 (Tenn. 2002). The court explained
that “violence and force are obviously related but not synonymous–in effect, violence is a more
severe degree of force. Stated another way, a violent act necessarily involves force but a forcible act
does not necessarily involve violence.” Fitz at 216. For example, the “theft of a wallet from the
pocket or purse of an unknowing or unresisting victim, for example, may require ‘compulsion by the
use of physical power’ but not violence.” Id. at 217 (citing Wayne R. LaFave & Austin W. Scott,
Jr., Criminal Law § 8.11(d), at 781 (2d ed.1986)).

        Applying the reasoning of Fitz, we can discern no evidence of violence in the appellant’s
actions. Kerns stated that the appellant “grabbed” her hand and took her money. While the
appellant’s actions involved force, we do not conclude that the actions constituted a violent act.



                                                 -3-
Therefore, we conclude that the appellant correctly argued that the State failed to prove that he
utilized “violence” in committing the theft of Kerns property.1

       Nevertheless, we also conclude that the State amply proved the elements of theft under $500,
a Class A misdemeanor. See Tenn. Code Ann. § 39-14-103. As we earlier noted, an offender
“commits theft of property if, with the intent to deprive the owner of property, the person knowingly
obtains or exercises control over the property without the owner’s effective consent.” Id. Kerns’
testimony clearly established that the appellant committed the offense of theft and that the amount
of property taken was $50.

                                                  III. Conclusion

       Accordingly, we modify the appellant’s conviction of robbery to a conviction of theft under
$500 and remand to the trial court for sentencing on that offense.



                                                                  ___________________________________
                                                                  NORMA McGEE OGLE, JUDGE




         1
            W e note that the State arguably pro ved that the app ellant comm itted robbe ry by placing K erns in fear. See
Tenn. Code Ann. § 39-14-103. However, the indictmen t charg ing the appellant with robbery solely alleged that the
app ellant co mmitted robbe ry by violence.

                                                           -4-
