Assigned on Briefs February 3, 2015.
Appeal from the Criminal Court for Shelby County No. 12-005228 Lee V. Coffee, Judge.
Terrell L. Tooten, Memphis, Tennessee, for the Defendant-Appellant, Antonio Crenshaw.
Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Alanda Dwyer, Assistant District Attorney General, for the Appellee, State of Tennessee.
Camille R. McMullen, J., delivered the opinion of the court, in which John Everett Williams and Alan E. Glenn, JJ., joined.
CAMILLE R. MCMULLEN, JUDGE.
This appeal stems from the robbery of a Roses Department Store in Memphis on February 17, 2012. Crenshaw was identified as one of the perpetrators and was later indicted.
Cyrine Howard testified that on February 17, 2012, she was the store manager of a Roses Department Store in Memphis. On the morning of February 17, 2012, Monica Foster, one of the office managers, informed Howard that a man, later identified as Antonio Crenshaw, had "got[ten] something, " which meant that Crenshaw was attempting to steal merchandise. Although Howard did not know Crenshaw's name, she recognized him as a regular customer at the store. Howard said that when she had seen Crenshaw in the store on prior occasions, he was "walking real slow, and he'd just look around. So I thought he was on medication or something." When Howard was asked if she believed Crenshaw was "up to something" on those previous occasions, Howard responded, "No ma'am. I just thought he was sick or something, he was on medication." She added, "He had been in the store lots of times, so I didn't think anything about it. I just thought he was a regular customer."
When Foster informed Howard that Crenshaw was attempting to take some merchandise without paying for it, Howard looked up from the work she was doing. The store's cashier, Mary Blaire, approached Crenshaw, who had a trash can full of clothing, and told him to leave it there. When Howard saw that Crenshaw was not going to leave the items, she ran to the entrance of the store to stop him from leaving the store with the store's merchandise, which included both the trash can and the clothing. As soon as she got there, Howard told Crenshaw to leave the merchandise, and Crenshaw informed her that he was not going to leave it. Howard said that at that point, "[Crenshaw] pushed the trash can up against me, and we went to tussling over the trash can." She added, "I thought [Crenshaw] was going to turn loose and hit me, but he didn't." Howard said she believed Crenshaw was going to hit her when he attempted to exit the store's second door to the outside.
Crenshaw refused to release the trash can and informed Howard that he was going to keep the trash can and its contents. During the struggle over the trash can, Foster approached them, and Howard asked her if she was going to help her. Howard said she was unable to hold her grip on the trash can because Crenshaw was relentlessly pulling on it. Finally, Crenshaw snatched the trash can from Howard, ran out of the store, and threw the trash can and its contents into the back seat of a black Chrysler 300 that was waiting nearby. Crenshaw jumped inside the passenger seat of the car, which immediately drove away from the scene. Howard identified Crenshaw at trial as the man who had taken the merchandise from the store on February 17, 2012. A surveillance videotape, which depicted Crenshaw during the incident on February 17, 2012, was shown to the jury.
Howard later identified Crenshaw from a police photographic lineup. Several days after Howard identified Crenshaw in this lineup, Crenshaw approached Howard at the store, told her his name was Tony, and asked her not to press charges against him. Because Howard was frightened that Crenshaw might hurt her, she began talking to him about turning his life around. A few days later, Howard told the prosecutor about Crenshaw returning to the store and about the details of their conversation.
Near the end of Howard's testimony, the trial court relayed the following question to Howard from a juror: "What made you feel as though Antonio Crenshaw was going to hit you?" Howard replied, "He said he wasn't going to let [the trash can with the merchandise] go when I asked him to leave it. And as me being a woman and him being a male, I assumed he would try to hit me. But he didn't."
Monica Foster testified that on February 17, 2012, she was working at the Roses Department Store in Memphis when she observed Crenshaw pulling a garbage can full of merchandise. She told Howard that Crenshaw "ha[d] something, " and Blaire, the cashier, told Crenshaw to stop, although he continued with the merchandise to the front of the store. Howard approached Crenshaw, and Foster followed behind. Foster said Howard told Crenshaw to drop the garbage can, and he refused. At that point, Crenshaw and Howard began fighting over the garbage can. Foster said that she was unable to grab onto the garbage can because of the way they were fighting over it.
When asked if she thought Crenshaw was going to hurt Howard, Foster replied, "The way I was looking-I was like-I didn't know what [Crenshaw] was going to do, but he was determined to get the garbage can." When asked if she was afraid or was watching what was happening, she said, "Well, I [was] watching. I was hoping he wasn't going to do anything to her, you know." Foster said that during the altercation, nearly six hundred dollars of clothing fell out of the garbage can. Despite this, Foster said the garbage can was still nearly full of merchandise when Crenshaw exited the store with it. After Crenshaw fled with the merchandise, Foster notified the police that Crenshaw had dropped his hat and a business card during the incident.
Nancy Trentham, an officer with the Memphis Police Department, testified that she collected a black hat and a business card with Officer Croom's name on it from the Roses Department Store when she investigated this case on February 17, 2012. She later contacted Officer Croom to notify him that his business card was found at the crime scene.
Joshua Croom, an officer with Organized Crime Unit of the Memphis Police Department, testified that he first met Crenshaw during a traffic stop just prior to midnight on February 16, 2012. During this stop, Crenshaw told Officer Croom that he needed a job to make some money, and Officer Croom made him an offer to work as a confidential informant for his unit and gave him his business card. Officer Croom identified the card collected by Officer Trentham as one of his business cards. When he gave Crenshaw his business card, he wrote down Crenshaw's name and date of birth. A few hours later, he received a call from Officer Trentham that his business card had been found at the scene of a robbery. Officer Croom later reviewed a surveillance videotape from the Roses Department Store and identified Crenshaw as the man in the videotape and as the man to whom he gave his card during the traffic stop. He noted that Crenshaw was wearing the same clothes in the videotape as he had been wearing during the traffic stop.
Dexter Moses, a lieutenant with the Memphis Police Department, testified that in February 2012 he worked in the Robbery Bureau. When he learned that Officer Croom's business card had been found at the scene of a robbery at the Roses Department Store on February 17, 2012, he contacted Officer Croom to see if he had recently talked to someone about being a confidential informant. He then asked Officer Croom to look at the surveillance videotape from the robbery. Based on Officer Croom's information, Lieutenant Moses compiled a photographic lineup, which he presented to Howard. He stated that Howard immediately identified Antonio Crenshaw in the lineup and that he later issued an arrest warrant for Crenshaw.
I. Sufficiency of the Evidence.
Crenshaw argues that the evidence is insufficient to support his robbery conviction. Specifically, he claims that the theft was complete prior to the use of any violence or fear and that it was only after Howard attempted to retrieve the merchandise that a physical altercation with her occurred. Because the record shows that Crenshaw used violence and placed Howard in fear in order to take the property in this case, we conclude the proof is sufficient to sustain the conviction for robbery.
When a defendant challenges the sufficiency of the evidence, the standard of review applied by this court is "whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). Similarly, Rule 13(e) of the Tennessee Rules of Appellate Procedure states, "Findings of guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support the finding by the trier of fact of guilt beyond a reasonable doubt." When considering the sufficiency of the evidence on appeal, the State is entitled to the strongest legitimate view of the evidence and all reasonable inferences which may be drawn from that evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011) (citing State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010)). "Because a verdict of guilt removes the presumption of innocence and raises a presumption of guilt, the criminal defendant bears the burden on appeal of showing that the evidence was legally insufficient to sustain a guilty verdict." State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009).
Guilt may be found beyond a reasonable doubt where there is direct evidence, circumstantial evidence, or a combination of the two. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The standard of review for sufficiency of the evidence "'is the same whether the conviction is based upon direct or circumstantial evidence.'" State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting Hanson, 279 S.W.3d at 275). The jury as the trier of fact must evaluate the credibility of the witnesses, determine the weight given to witnesses' testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). Moreover, the jury determines the weight to be given to circumstantial evidence and the inferences to be drawn from this evidence, and the extent to which the circumstances are consistent with guilt and inconsistent with innocence are questions primarily for the jury. Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)). This court, when considering the sufficiency of the evidence, shall not reweigh the evidence or substitute its inferences for those drawn by the trier of fact. Id.
Robbery is "the intentional or knowing theft of property from the person of another by violence or putting the person in fear." T.C.A. ' 39-13-401(a) (Supp. 2011). "A person commits theft of property if, with intent to deprive the owner of property, the person knowingly obtains or exercises control over the property without the owner's effective consent." Id. ' 39-14-103(a) (Supp. 2011). "Owner" is "a person, other than the defendant, who has possession of or any interest . . . in property . . . and without whose consent the defendant has no authority to exert control over the property." T.C.A. ' 39-11-106(a)(26) (Supp. 2011). "Possession may be actual or constructive." State v. Robinson, 400 S.W.3d 529, 534 (Tenn. 2013) (citing State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001)). Actual possession "refers to physical control over an item." State v. Fayne, 451 S.W.3d 362, 370 (Tenn. 2014). On the other hand, constructive possession is established when a person has "'the power and intention at a given time to exercise dominion and control over [an object] either directly or through others.'" Shaw, 37 S.W.3d at 903 (quoting State v. Patterson, 966 S.W.2d 435, 445 (Tenn. Crim. App. 1997)).
"The use of violence or fear elevates theft to robbery." State v. Swift, 308 S.W.3d 827, 830 (Tenn. 2010) (citing State v. Bowles, 52 S.W.3d 69, 80 (Tenn. 2001)). "'If an individual uses violence or puts another in fear to obtain or exercise control over another's property, he or she has committed a robbery." Id. (quoting State v. Owens, 20 S.W.3d 634, 638 (Tenn. 2000)). Accordingly, "'whether a taking is properly characterized as a theft or a robbery is contingent upon whether and when violence or fear is imposed.'" Id. (quoting Owens, 20 S.W.3d at 638). The use of violence or fear must precede or be contemporaneous with the taking of property. Id. (citing Owens, 20 S.W.3d at 641).
Crenshaw relies on State v. Swift, 308 S.W.3d 827 (Tenn. 2010), to argue that the theft was complete, prior to any violence or fear, when he made his intent clear to steal the merchandise. Specifically, he asserts that the theft was complete when he placed the merchandise into the trash can or, at the very least, when the following things occurred: when he passed Foster, who told Howard that he had "got[ten] something, " when Blaire told him to put the merchandise down, or when Howard told him to leave the items. Crenshaw argues that it was only after all these things occurred that Howard tried to retrieve the items he had taken and the physical altercation occurred.
In Swift, the Tennessee Supreme Court considered "whether the location of the use of violence or fear is relevant in distinguishing theft from robbery." 308 S.W.3d at 828. There, an employee saw the defendant, "who was holding merchandise, put his hands behind televisions located on a display shelf." Id. at 829. When the defendant saw the employee watching him, he "quickly removed his hands, put them into his pants, and walked away." Id. The employee assisted another customer for around two minutes as he continued to watch the defendant. Id. The employee then walked to the shelf where the defendant had been standing and found two empty videogame cases on the shelf. Id. He immediately informed the loss prevention specialist at the front of the store that the defendant had "just stole[n] two games." Id. The loss prevention specialist found the defendant on the store's surveillance cameras, and approximately two minutes later, the defendant walked toward the store's front door. Id. When the loss prevention specialist asked to speak to the defendant, the defendant did not respond. Id. As the loss prevention specialist attempted to restrain the defendant, the defendant swung at him, and the loss prevention specialist and the employee reached for the defendant. Id. When the defendant took a second swing at the loss prevention specialist, both employees saw that the defendant had a knife in his hand. Id. Fearing for their safety, they backed away, and the defendant left the store. Id. The employees followed the defendant to the parking lot and saw him get in a car and drive away. Id The video games were never found. Id At trial, the defendant was convicted of aggravated robbery. Id
On appeal, the State argued that Swift's case was distinguishable from State v. Owens, 20 S.W.3d 634 (Tenn. 2000), because the defendant's "use of violence and fear occurred inside rather than outside the store." Id at 831. The Tennessee Supreme Court disagreed, holding that the location of the use of violence or fear was inconsequential and that "[t]he temporal proximity between the taking of property and the use of violence or fear [was] the sole relevant factor." Id The court held that it was necessary to determine when the taking was complete in order to assess the temporal proximity between the taking and the use of violence or fear. Id Although the State argued that the taking was not complete until the defendant tried to exit the store without paying for the merchandise, the court held that the taking was complete when the defendant "removed the games from their cases and concealed them in his pants, evincing his intent to deprive [the store] of the property." Id In considering the temporal proximity between the defendant's taking of the games and the use of violence or fear, the court concluded:
Mr. Swift's use of violence and fear did not precede or occur contemporaneously with the removal and concealment of the games. Mr. Swift walked toward the exit and swung a knife at the Best Buy employees several minutes after the taking was complete. We therefore hold that the evidence is insufficient to support Mr. Swift's conviction for aggravated robbery.
Id. Because the evidence was sufficient to sustain a conviction for aggravated assault, a lesser-included offense of aggravated robbery, the Tennessee Supreme Court vacated the defendant's conviction for aggravated robbery and modified it to aggravated assault. Id. at 831-32.
We conclude that Swift is distinguishable from the instant case and that Crenshaw's case more closely resembles State v. Johnson, 366 S.W.3d 150, 157 (Tenn. Crim. App. 2011), State v. Jonathan Greer, No. W2009-02414-CCA-R3-CD, 2010 WL 4621730 (Tenn. Crim. App. Nov. 12, 2010), and State v. Mario Merritt, No. W2003-02868-CCA-R3-CD, 2004 WL 2726030 (Tenn. Crim. App. Nov. 30, 2004). In the instant case, Crenshaw had yet to "evinc[e] his intent to deprive [the Roses Department Store] of the property" until he had the physical altercation with Howard. See Swift, 308 S.W.3d at 831; T.C.A § 39-14-103. During this altercation, Crenshaw pushed the trash can against Howard, and they began wrestling over the trash can full of clothing. Howard testified that while the confrontation was taking place, she believed that Crenshaw was going to hit her. Crenshaw was only able to complete the "taking" of the property during this confrontation when he snatched the trash can full of clothing out of Howard's hands and exited the store. Unlike the defendant in Swift, Crenshaw never concealed the property on his person prior to using violence or fear. Both Howard and Foster testified that the merchandise, which included the ...