IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

November 4, 2009 Session Heard at Memphis

STATE OF TENNESSEE v. KEVIN SWIFT

Appeal by Permission from the Court of Criminal Appeals, Western Section

Criminal Court for Shelby County

No. 05-07079 James M. Lammey, Judge

No. W2007-00673-SC-R11-CD - Filed March 25, 2010

We granted appeal in this case to clarify whether the location of the use of violence or fear

is relevant in distinguishing theft from robbery. We hold that the temporal proximity

between the taking of property and the use of violence or fear is the sole relevant factor.

Applying this analysis to the facts of this case, we conclude that the evidence is insufficient

to support the defendant’s conviction for aggravated robbery and therefore reverse the

judgment of the Court of Criminal Appeals. The evidence, however, supports a conviction

for the lesser included offense of aggravated assault. We therefore vacate the defendant’s

conviction for aggravated robbery, modify the conviction to aggravated assault, and remand

this case to the trial court to conduct a new sentencing hearing.

Tenn. R. App. P. 11 Appeal by Permission;

Judgment of the Court of Criminal Appeals Reversed

JANICE M. HOLDER, C.J., delivered the opinion of the Court, in which CORNELIA A. CLARK,

GARY R. WADE, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined.

Nathan A. Bicks and C. Farris DeBoard, Memphis, Tennessee, for the appellant, Kevin

Swift.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;

and J. Ross Dyer, Assistant Attorney General, for the appellee, the State of Tennessee.
OPINION

Factual and Procedural History

On October 6, 2005, a Shelby County grand jury indicted the defendant, Kevin Swift,

on two counts of aggravated robbery. The indictment resulted from events that occurred on

May 27, 2004, at a Best Buy in Memphis, Tennessee. On October 23, 2006, a jury trial was

held in the Criminal Court of Shelby County. Included in the evidence presented by the State

was the testimony of two Best Buy employees, Todd Czyrnik and Curtis Odom. Mr. Swift

presented no evidence.

Mr. Czyrnik was working in an aisle of Best Buy when he saw Mr. Swift, who was

holding merchandise, put his hands behind televisions located on a display shelf. When Mr.

Swift saw Mr. Czyrnik watching him, Mr. Swift quickly removed his hands, put them into

his pants, and walked away. Mr. Czyrnik helped another customer for approximately two

minutes while continuing to watch Mr. Swift. Mr. Czyrnik walked to the display shelf where

Mr. Swift had been standing and found two empty cases on the shelf that had contained

PlayStation games valued at $19.99 each. Mr. Czyrnik testified that Best Buy required its

employees to approach a suspected thief at the front door to minimize potential

“commotion.” Accordingly, Mr. Czyrnik walked to the loss prevention desk located at the

front of the store and told Mr. Odom, the loss prevention specialist, that Mr. Swift “just stole

two games.” Mr. Odom proceeded to locate Mr. Swift on the surveillance cameras.

Approximately two minutes later, Mr. Swift walked toward the store exit. Mr. Odom

asked Mr. Swift if he could speak to him, but Mr. Swift did not respond. When Mr. Odom

attempted to restrain Mr. Swift, Mr. Swift swung at Mr. Odom, and both store employees

reached for Mr. Swift. Mr. Swift swung a second time at Mr. Czyrnik, and the employees

noticed that Mr. Swift had a knife in his hand. Both store employees feared for their safety

and backed away. Mr. Swift left the store. Mr. Czyrnik and Mr. Odom followed Mr. Swift

to the parking lot and observed him leave in a gray Ford Taurus. Neither of the games was

ever recovered.

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The jury found Mr. Swift guilty on both counts of aggravated robbery. Pursuant to

an agreement between the parties, the trial court reduced the second count of aggravated

robbery to aggravated assault and sentenced Mr. Swift to nine years on that offense. Mr.

The testimony of Mr. Czyrnik and that of Mr. Odom regarding the events described in this

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paragraph are not entirely consistent. The surveillance tape depicting these events was shown to the jury,

however, and is included in the record on appeal. The recitation of facts in this paragraph is consistent with

our review of the videotape.

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Swift has not appealed his conviction on the second count of aggravated robbery nor has he

appealed the parties’ agreement to reduce that conviction to aggravated assault. The trial

court sentenced the defendant to eleven years on the first count of aggravated robbery. Mr.

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Swift appealed his conviction on the first count of aggravated robbery to the Court of

Criminal Appeals, which affirmed the judgment of the trial court.

We granted Mr. Swift’s application for permission to appeal.

Analysis

In Tennessee, “[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.” Tenn. Code Ann. § 39-14-103 (2006). “Robbery

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is the intentional or knowing theft of property from the person of another by violence or

putting the person in fear.” Tenn. Code Ann. § 39-13-401(a) (2006). Robbery becomes

aggravated if it is “[a]ccomplished 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.” Tenn. Code

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Ann. § 39-13-402(a)(1). The use of violence or fear elevates theft to robbery. 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.

Therefore, whether a taking is properly characterized as a theft or a robbery is contingent

upon whether and when violence or fear is imposed.” State v. Owens, 20 S.W.3d 634, 638

(Tenn. 2000).

In this case, we must determine whether the evidence is sufficient to support Mr.

Swift’s conviction for aggravated robbery. Evidence issufficient to support a finding of guilt

in a criminal action if “‘any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.’” State v. Jackson, 173 S.W.3d 401, 408 (Tenn. 2005)

The trial court ordered that Mr. Swift’s sentences be served consecutively for an effective sentence

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of twenty years. Mr. Swift appealed this decision. He also argues on appeal that the trial court erred by

applying an enhancement factor at sentencing that was not found by the jury beyond a reasonable doubt. In

light of our decision to vacate Mr. Swift’s conviction on the first count of aggravated robbery, modify the

conviction to aggravated assault, and remand this case to the trial court for a new sentencing hearing, we do

not address these issues.

Theft is a Class A misdemeanor if the value of the property is $500 or less. Tenn. Code Ann. 3

§ 39-14-105(1) (2006).

Robbery also becomes aggravated if “the victim suffers serious bodily injury.” Tenn. Code Ann. 4

§ 39-13-402(a)(2) (2006).

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(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Tenn. R. App. P. 13(e). In making

this determination, we consider only the evidence introduced by the State, take the strongest

legitimate view of that evidence, and draw all reasonable inferences in favor of the State.

State v. White, 269 S.W.3d 903, 906 (Tenn. 2008). Moreover, because a guilty verdict

replacesthe defendant’s presumption of innocence with a presumption of guilt, the defendant

has the burden of demonstrating that the evidence was insufficient to support the conviction.

State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008); State v. Buggs, 995 S.W.2d 102,

105-06 (Tenn. 1999). Finally, “[q]uestions about the credibility of witnesses, the weight and

value of the evidence, as well as all factual issues raised by the evidence are resolved by the

trier of fact, and this Court does not re-weigh or re-evaluate the evidence.” State v. Evans,

108 S.W.3d 231, 236 (Tenn. 2003).

In State v. Owens, we examined the temporal relationship required between the taking

of property and the use of violence or fear to elevate theft to robbery. 20 S.W.3d 634. The

defendant in Owens took an article of clothing from a store and fled without paying for it.

A store employee chased the defendant for several blocks before the defendant dropped the

merchandise, turned, and brandished a box cutter. In determining whether the evidence was

sufficient to support the charge of robbery, we adopted the common law rule requiring that

the violence or fear precede or be contemporaneous with the taking. Id. at 641. We

specifically rejected the continuous offense theory under which robbery is defined to extend

to situations in which force is used after the taking, such as to retain property or facilitate

escape. Id. at 640-41. We concluded in Owens that “the use of violence or fear was

subsequent to the taking and temporally remote.” Id. at 641. We therefore vacated the

defendant’s conviction for robbery and modified it to a conviction for theft.

The State argues that this case is distinguishable from Owens because Mr. Swift’s use

of violence and fear occurred inside rather than outside the store. We disagree. Our analysis

in Owens requires us to ascertain whether there is evidence sufficient to elevate theft to

robbery without regard to the location of the use of violence or fear. See id. The temporal

proximity between the taking of property and the use of violence or fear is the sole relevant

factor.

To assess the temporal proximity between the taking and the use of violence or fear,

we must ascertain when the taking was complete. The State maintains that the taking was

not complete until Mr. Swift attempted to exit the store without paying for the games because

Best Buy consents to its customers holding merchandise while they are in the store. Nothing

in the record suggests, however, that Mr. Swift had Best Buy’s consent to remove the games

from their cases and conceal them in his pants. To the contrary, Mr. Czyrnik told Mr. Odom

to watch Mr. Swift because he had just stolen two games, and Mr. Czyrnik testified that he

and Mr. Odom waited to approach Mr. Swift in an effort to minimize commotion in

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accordance with Best Buy’s policy. We therefore conclude that the taking was complete

when Mr. Swift removed the games from their cases and concealed them in his pants,

evincing his intent to deprive Best Buy of the property. See Tenn. Code Ann. § 39-14-103.

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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.

In determining the proper remedy, it is important to note that “sequential jury

instructions” were submitted to the jury in this case. See generally State v. Davis, 266

S.W.3d 896, 910 (Tenn. 2008) (expressly approving of sequential jury instructions). With

regard to the first count of aggravated robbery, the jury was instructed that it could convict

the defendant “of only one of the [following] named offenses,” in this order: aggravated

robbery, robbery, aggravated assault, assault, and theft. The jury was further instructed that,

if the first count of aggravated robbery could not stand, it was to review the lesser included

offenses sequentially to determine whether the evidence was sufficient to support any one

of those offenses.

We have concluded that the first count of aggravated robbery could not stand because

Mr. Swift’s use of violence and fear did not occur prior to or contemporaneously with his

taking of the games. For the same reason, the offense of robbery cannot stand. The proper

remedy, therefore, is a modification of Mr. Swift’s aggravated robbery conviction to

aggravated assault, the first offense listed in the jury instructions that is supported by the

evidence. According to the surveillance tape and the testimony of the Best Buy employees,

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 Cf. Tenn. Code Ann. § 39-14-146(a)(1)-(2) (2006) (stating that, for purposes of the theft statute,

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a person commits theft of merchandise “if the person, with the intent to deprive a merchant of the stated price

of merchandise, knowingly . . . [c]onceals . . . [r]emoves, takes possession of, or causes the removal of

merchandise”).

Aggravated assault is a lesser included offense of aggravated robbery. State v. Franklin, 130 6

S.W.3d 789, 798 (Tenn. Crim. App. 2003). Assault occurs when a person “(1) [i]ntentionally, knowingly

or recklessly causes bodily injury to another;(2) Intentionally or knowingly causes another to reasonably fear

imminent bodily injury; or (3) Intentionally or knowingly causes physical contact with another and a

reasonable person would regard the contact as extremely offensive or provocative.” Tenn. Code Ann.

§ 39-13-101(a)(1)-(3) (2006 & Supp. 2009). Aggravated assault is committed when a person “(1)

[i]ntentionally and knowingly commits an assault as defined in § 39-13-101 and: (A) Causes serious bodily

injury to another; or (B) Uses or displays a deadly weapon; or (2) Recklessly commits an assault as defined

in § 39-13-101(a)(1), and: (A) Causes serious bodily injury to another; or (B) Uses or displays a deadly

(continued...)

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as Mr. Swift exited the store he swung a knife first at Mr. Odom and then at Mr. Czyrnik.

See State v. Pelayo, 881 S.W.2d 7, 9-10 (Tenn. Crim. App. 1994) (“If a criminal actor

displays a deadly weapon . . . to more than one person, that conduct would justify convictions

for each victim involved.”). Because the evidence is sufficient to support a conviction for

the lesser included offense of aggravated assault, we vacate the defendant’s conviction for

aggravated robbery, modify the conviction to aggravated assault, and remand this case to the

trial court to conduct a new sentencing hearing.

Conclusion

For the reasons articulated above, we vacate the defendant’s conviction for aggravated

robbery, modify the conviction to aggravated assault, and remand this case to the trial court

to conduct a new sentencing hearing. The judgment of the Court of Criminal Appeals

therefore is reversed. Costs of this appeal are assessed against the appellee, the State of

Tennessee.

_________________________________

JANICE M. HOLDER, CHIEF JUSTICE

 (...continued) 6

weapon.” Tenn. Code Ann. § 39-13-102(a)(2006 & Supp. 2009). Aggravated assault under Tennessee Code

Annotated section 39-13-102(a)(1), (b), or (c) is a Class C felony. Tenn. Code Ann. § 39-13-102(e)(1).

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