### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs D ecember

4, 2001 STATE OF TENN ESSEE v. TONY WAL KER Direct Appeal from the Circuit Court for F ayette County No. 4859 Jon Kerry Blackwood, Judge

No. W2001-00929-CCA-R3-CD - Filed March 25, 2002
The Appe llant, Ton y Walker , appea

ls the ver dict of a Fayette Co

unty jury f

inding him guilty of attempte d aggrav ated rob bery. On appeal, Walker raises the single issue of whether the evidence is suffic ient to sup

port his c onviction . After a review o f the re cord, we

affirm. Tenn. R. App.P. 3; Judgm ent of the Circuit C ourt is Af

firmed.
D AVID G. H AYES , J., delive red the o pinion of t

he court , in which G ARY R. W ADE , P.J., and D AVID H. W ELLES , J., joined. Thomas M. Minor, Somerville, Tennessee, for the Appellant, Tony Walker.
P aul G. Summ ers, Atto

rney Ge neral a nd Report

er; Micha el Moore , Solicitor

Genera l; Kim R. Helper, Assistant Attorney General; and Elizabeth T. Rice , Distric t Attorney General, for the Appellee, State of Tennessee. OPINION Factual Ba

ckground On October 16, 1999, at approximately 10:00 p.m., the Appellant, along with James Hill, Jr., entered Wayne’s Grocery, a “mini-mart”store in Fayette County. Hill was armed with a shotgun, and both men were wearing panty hose type stockings over the ir faces. Hill “pointed at and waved [the gun] at everybody,” telling the m to “get o n the floo

r.” The Appellan t stood in the store entrance looking outside. At the time, five people were in the store; three customers a nd two employee s. Because no one in th

e store f ollowed H

ill’s dema nds, he re peated t he instru ctions several tim es. Upon hearing the commotion, the store owner, Wayne Hampton, emerged from his office and walked to the front

of the store. Hampton observed Hill who was still “waving the shotgun around” and “telling people to ge t down on the floor.” Hampton, recognizing Hill’s voice, exclaimed, “I recognize who you are. And why are you doing this?” At this point, the Appellant1 Robbery i s def ined a s “the int enti onal or know ing theft of property f rom the person of another by vi olence or putti ng the person i n fear.” Tenn. Code Ann. § 39-13-401(a) (1997). The indictment charged in rel ev ant part as follow s: [T]hat James Hill, Jr. And [Appell ant] did unl awfull y, fe loni ously and knowingl y att empt to co mm it the cri minal of

fense of Aggravat ed Robbe ry, and obta in prope rty f rom the per son of Wayne (con tinue d...) -2- and Hill removed the stockings covering their faces . Hill then pretended he wanted to pawn the shotgun. Hampton, going along with the pretext, examined the single barrel shotgun and told Hill that he was not interested. After Hampton returned the shotgun to Hill, he advised Hill thathe was calling the sheriff’s department. At this point, Hill and the Appellan t immediately left the store building. During this entir e excha nge, the A

ppellant , who was leaning a gainst the wall beside the door and stand ing “ther e with his a

rms folded,” did not speak. While the attempted robbery was in progres s, one of the customers came to the cash register, got c hange, and returned to another part of the store to

continue his game of pool. At some point the cash register was left unattended but the Appellant, who was within a few feet of the register , never attempted to steal any money. On Nov ember 22, 1999, the Appellant and Hill were indicted for attempted a ggrav ate d robbery. On August

9, 2000, Hill was found guilty by a jury and a mistrial was declared as to the Appellan t. Upon retrial by a

jury on Dec ember 14, 2000, the Appellant was found guilty. The Appellant was sentenced to a term of fifteen ( 15) years as a Range III persistent off ender. ANALYSIS The Appellant argues that the proof was insufficient to establish that he knowingly attempted to obtain pr

operty f rom th e vict im by violence as charged in the indictment. A jury conviction removes the presumption of innocence with which a defendant is cloake d and replaces it with one of guilt, so that on appeal, a convicted defendant has the burden of demonstrating that the evidence is insufficient. State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982). In determining the sufficiency of the evidence, this court doe s not re weigh or reevaluate the evidence

. State v. Cabbage , 571 S.W.2d 832, 835 ( Tenn. 197 8). Likewise, it is no t the duty o f this c ourt to re visi t questions of w itness credibility on appeal, that function being within the province of the trier of fact. State v

. Adkins , 786 S.W.2d 642, 646 ( Tenn. 199 0); State v. Burlison , 868 S.W.2d 713, 719 (Tenn. Cr im. App. 1993). In stead, the Appella nt must esta

blish that t

he evide nce pre sented a

t t rial wasso deficient that no reasonable trier of fact could have found the essen tial elem ents of the offen se beyond a reasona ble doubt. Tenn. R. App. P. 13(e); Jackson v. Virgini

a , 443 U.S. 307, 319, 99 S. Ct. 2781, 27 89 (1979) ; State v. Cazes , 875 S.W.2 d 253, 259 (Tenn. 199 4). More over, the State is entitled to the stro ngest leg itimate vie w of the e vidence and all r easonab le inferences which maybe drawn therefr

om. State v. H

arris , 839 S.W.2d 54, 75 (Tenn. 1992).
In this case, the Appellant and his ac complice were indicted fo r attempted aggravated robbery basedupon a the ory of “v

iolence ” as oppo sed to “fear.” 1 In State v. F itz , 19 S.W.3d 213, 217 (Tenn.1 (.. .continued) Hampton, by viol ence ac companied wit h a deadl y weapon, . . . with t he int ent t o depri ve Wayne Ha mp ton o f the p rop erty w ithou t Wa yne Ha mp ton’ s effec tive co nsen t.

-3- 2000), our supreme court “concluded that the plain mea

ning of the

element o f violenc e as used in the offense of robbery pursuant to Tenn. Code Ann. § 39-13- 401 is evidence of physical force unlawfully exercised s o as to damage, injure or abuse.”The Appe

llant arg ues that b ecause

his conduct did not involve physical contact or physical force so as to damage, injure or abuse another, as required by Fitz , his conviction cannot stand. In a recent decision, State v. A llen , No. E19 98- 00416-SC- R11-CD (Tenn. at Knoxville, F e b. 22, 2002) (for publication), our supreme court provided further guidance with regard to the de finition of violence: Pointing a deadly weapon at [a] victim is physical force directed toward the body of the victim. There is no question that suc h force i s unlawfu lly exer cised so a s to abuse the victim . . . . We reject the contention that pointing a gun at the victim does notconstitute

violence because there is no physica

l contac t. This cour

t did not hol d in Fitz that physical contact is the sole means of establishing vi ol ence. W hile physical contact may rise to the level of violence, physical contact is not req uired to prove violence . . . . Our law provides that

“[a] pers on is criminally responsible as a party to an offense if the offense is committed by the person’s own conduct, by the conduct of another for which

the person is criminally responsible or by both.” Tenn. CodeAnn. § 39-11-4 01 (1997) . The pro of in this c ase established that the Appellant and his accomplice, both wearing stockings which covere d their fa

ces, entere d the grocer y with the accomplice brandishing a shotgun and ordering the customers and employees to “get on the floor.” The acts of the acc omp lice in “[pointing] at and [waving the shotgun] at everybody” constituted violence within the meaning of Fitz and Allen . The accomplice’s display of the shotgun satisfied the element of aggravated robbery which requires th at a

robbery be “accomplished

with a deadly weapon.” Tenn. Code Ann. § 39-13-402(a ) (1997). Moreover, we find the proof sufficient

to permit a rational jury to conclude that theAppellan t acted w ith the inte

nt to p romote or assist in the crime by serving as a “look-out” during the commission of the attempte d aggravated

robbery . Accor

dingly, we

find the e

vidence legall y sufficient to support the jury’s verdict. The Appellant’s judgment of conviction for attempted aggra vated robbery is affirmed.

___________________________________ DAVID G. HAYES, JUDGE