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Turner v. State

Court of Criminal Appeals of Tennessee, Knoxville

November 24, 2014

TRAY D. TURNER
v.
STATE OF TENNESSEE

Assigned on Briefs October 21, 2014

Appeal from the Criminal Court for Knox County No. 102127 Bob R. McGee, Judge

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Tray D. Turner.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; Randall E. Nichols, District Attorney General; and TaKisha Fitzgerald, Assistant District Attorney General, for the appellee, State of Tennessee.

James Curwood Witt, Jr., J., delivered the opinion of the Court, in which D. Kelly Thomas, Jr., and Robert L. Holloway, Jr., JJ., joined.

OPINION

JAMES CURWOOD WITT, JR., JUDGE

At the petitioner's jury trial, Ethan Grantham testified that he was the loss prevention associate for the K-Mart located on North Broadway in Knoxville. State v. Tray Turner, No. E2010-02540-CCA-R3-CD, slip op. at 2 (Tenn. Crim. App., Knoxville, Sept. 27, 2011), perm. app. denied (Tenn. Aug. 16, 2012). During his shift on May 13, 2010, a "service desk employee alert[ed] him of a possible shoplifter in the footwear department." Id. When Mr. Grantham found no one suspicious in that department, he proceeded to the service desk, and the service desk employee indicated that the petitioner was the person who had made the shoplifting report. Id. Because the petitioner had merchandise in his shopping cart and was not attempting to pay for it at the service desk, "which was the only operating register open at that point, " Mr. Grantham believed that the petitioner might attempt to steal the merchandise. Id., slip op. at 2-3. Mr. Grantham contacted the loss prevention manager, Michael Johnson, about the potential theft, and, in accordance with K-Mart's policy for the apprehension of shoplifters, Mr. Grantham stationed himself in the vestibule area. Id., slip op. at 3.

Approximately 15 to 20 minutes later, Mr. Grantham observed the petitioner "push the cart full of merchandise into the vestibule area." Id. Mr. Grantham identified himself as the store's loss prevention associate and requested that the petitioner accompany him back inside the store, at which point the petitioner "became 'really nervous.'" Id. The petitioner "started 'reach[ing] in his pocket for something' and 'grabbing in the shopping cart' at the same time, 'grabb[ing] . . . kind of whatever he could.'" Id. The petitioner "then 'pulled out a screwdriver' and began 'leaning it towards'" Mr. Grantham. Id. Because the petitioner was "yelling and cursing and threatening to stab him, " Mr. Grantham backed away. Id. After the petitioner ran outside, "Mr. Grantham 'followed him at a safe distance.'" Id. The petitioner left "the screwdriver and the merchandise behind" and fled in a vehicle that had arrived in front of the store. Id.

Michael Johnson, loss prevention manager for the K-Mart, testified that he had stationed himself outside the store on May 13 after Mr. Grantham had informed him of the potential shoplifter. Id., slip op. at 4. Explaining that "it all happened very quickly, " Mr. Johnson saw "an 'adult male exit . . . the building through the front doors with . . . a bed-in-a-bag, '" while simultaneously a vehicle "'drove quickly up'" and parked near the petitioner. Id. The petitioner "dropped what he was carrying" and got inside the vehicle, which sped away. Id. Mr. Johnson provided law enforcement officers with the vehicle's license plate number and a description of the petitioner. Id.

Knoxville Police Department Officer Rodney Townsend testified that he responded to the call of the shoplifting incident on May 13. Id. When he arrived at the KMart, Mr. Grantham "handed him 'an item, '" explaining that the petitioner had used that item "to 'fend him off' during the robbery." Id. Officer Townsend sealed the item in an evidence bag and "'turned the item into Property.'" Id.

Although the petitioner did not testify or present proof at trial, he maintained the position "during both closing and opening arguments, in the motion for judgment of acquittal, and through effective use of cross-examination" that his actions on May 13 "did not rise to the level of aggravated robbery . . . and the State neither presented nor possessed sufficient proof to convict" him of aggravated robbery. Id., slip op. at 5. During his motion for judgment of acquittal hearing, the petitioner "argued that he was solely guilty of shoplifting; he evinced his intent to deprive K-Mart of the property in question once he walked past all points of sale and pushed the shopping cart into the vestibule area, attempting to exit the store." Id. The petitioner also urged the court to follow the rule in State v. Swift, 308 S.W.3d 827 (Tenn. 2010), even though the petitioner's item was not concealed.[1] Id. If the court did not follow Swift, the petitioner reasoned, it "would result in a rule that turned on the difference between a large item, " such as the petitioner's bed-in-a-bag, "and a small item, one petite enough to conceal on your person." Id. The petitioner further maintained "that he had control over the property before Mr. Grantham ever approached him; therefore, he could not have used violence to take the property from Mr. Grantham because he already had control over it when the confrontation occurred." Id., slip op. at 6. The petitioner claimed "that he only brandished the weapon to facilitate his escape, and because Tennessee has rejected the continuous offense theory, he can neither be guilty of aggravated robbery nor aggravated assault under these facts." Id. (footnote omitted).

A Knox County Criminal Court jury convicted the petitioner of two counts of aggravated robbery and one count of resisting arrest. The trial court merged the aggravated robbery convictions, sentenced the petitioner as a Range II, multiple offender, and imposed an effective sentence of 14 years' incarceration to be served at 100 percent by operation of law. This court affirmed the judgments on direct appeal. See id., slip op. at 1.

On August 16, 2013, the petitioner filed, pro se, a petition for post-conviction relief. Following the appointment of counsel and the amendment of the petition, the post-conviction court held an evidentiary hearing on March 10, 2014. The petitioner testified that trial counsel had met with him prior to trial, and, with respect to plea offers, the petitioner testified that trial counsel

had come and visited me one time, and he had told me that the State had offered me 10 years at 35 percent, and – but it also included counter offers – offer, and, of course, me feeling like I wasn't guilty of robbery, and I – wanted to do as less time as possible, I went to the lower end, instead of 10, I went to six ...

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