IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

November 10, 2009 Session

STATE OF TENNESSEE v. CLAUDE PHILLIPS

Direct Appeal from the Criminal Court for Shelby County

No. 06-09192 Chris Craft, Judge

No. W2008-02810-CCA-R3-CD - Filed July 7, 2010

The defendant, Claude Phillips, appeals from his convictions of aggravated robbery, a Class

B felony, and aggravated assault, a Class C felony. He was sentenced to twenty years as a

Range II, multiple offender for his aggravated robbery conviction and to a consecutive

sentence of fifteen years as a Range III, persistent offender for his aggravated assault

conviction. On appeal, he argues that the evidence was insufficient to support either

conviction and that he was improperly sentenced. After careful review, we affirm the

judgments from the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER and J.C. MCLIN, JJ., joined.

Robert Wilson Jones, District Public Defender, and Barry W. Kuhn and Dianne Thackery,

Assistant Public Defenders, for the appellant, Claude Phillips.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;

William L. Gibbons, District Attorney General; and Colin Campbell, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

The defendant was involved in an incident at a Sears store located in the Hickory

Ridge Mall in Memphis. The defendant removed a box of merchandise from the store and

tried to return the item to a different Sears location. The second Sears location notified the

Hickory Ridge location that someone had attempted to return the merchandise.
John Lee, a Sears security manager, testified that he reviewed surveillance videotape

from the store and saw the defendant get out of a vehicle, enter the store, and leave with a

white box containing a mosquito fogger. No alarm was attached to the merchandise. A

search of the store revealed an empty spot on the shelf where the item had been. This item

was the only one in the system and had been on the shelf for some time.

When the defendant attempted to return the merchandise at the original location, it

was discovered that the store number and shipping number on the item matched the item

missing from the inventory. The security manager confronted the defendant. The defendant

refused to go to the office after being confronted, armed himself with a box cutter, took the

merchandise from behind a register, and exited the store. The defendant told the security

manager that he was leaving with the merchandise and threatened to cut anyone that tried to

follow or stop him. When he noticed employees following him to the parking lot, the

defendant dropped the merchandise and ran toward the security manager. Police arrested the

defendant while he was still in possession of the box cutter.

During the security manager’s testimony, several photographs were admitted into

evidence including photographs of the merchandise, the defendant holding the merchandise,

and the defendant returning the merchandise. There was also a photograph admitted into

evidence showing the security manager with his hand up while the defendant is behind the

register. The security manager said that he had his hand up because the defendant had the

box cutter in his hand. The final photograph admitted into evidence depicted the defendant

exiting the store with the merchandise in his hand while he was approached by Susan Sadler.

Susan Sadler, the Sears district security manager, also testified that the defendant

threatened her with a box cutter when she tried to detain him.

Officer Charles Winbush of the Memphis Police Department testified that he was on

patrol on May 24, 2006, when he received a call that a man had stolen some merchandise and

tried to return it the same day to get a refund. When he arrived at the store, the defendant

was kicking the door. He assisted in detaining the defendant and found a box cutter in one

of his pockets.

Detective Josh Robinson of the Memphis Police Department testified that while he

was on patrol on May 24, 2006, he received a call that officers were holding a prisoner at a

Sears. Robinson arrived on the scene to find Officer Winbush who gave him a box cutter,

a DVD, and the defendant to transport to the jail at 201 Poplar. He transported the defendant

to the jail for processing and took the evidence to the property evidence storage room.

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Officer Paul Neely of the Memphis Police Department testified that he came into

contact with the defendant on May 25, 2006, while investigating the aggravated robbery case.

He advised the defendant of his rights before they spoke about the events at Sears. The

defendant acknowledged that he had a box cutter at the Sears and characterized the events

as an “incident” rather than a robbery. The defendant said that Sears got the property that

was taken and that he got “a lot of trouble.” The defendant told the officer that he went into

the Sears with a friend and took the merchandise out of the store. He then tried to exchange

it for a gift card. He told the officer that they tried to exchange it at a different store but were

referred back to the Hickory Ridge Mall location. He took the box to the lawn and garden

section of the store. The clerk asked if the merchandise was used or damaged, and the

defendant said he used his box cutter to show that the fogger was in good condition. He told

the officer that until loss prevention intervened, he was under the impression that he was

going to get a gift card.

The officer testified that the defendant told him he removed the fogger from behind

the counter and took it outside. The defendant told him that he tried to go back in the store

but the doors were locked. He said that he kicked at the doors until the police arrived and

placed him under arrest. The defendant further stated, “I know this wasn’t no robbery. I had

a box cutter and took the fogger, but it wasn’t no robbery.”

The defendant was convicted of aggravated robbery, a Class B felony, and of the

aggravated assault of Susan Sadler, a Class C felony. He was sentenced to twenty years as

a Range II, multiple offender for the Class B felony and to fifteen years as a Range III,

persistent offender for the Class C felony, with the sentences to run consecutively.

Analysis

On appeal, the defendant argues that the evidence was insufficient to support his

convictions. In determining the sufficiency of the evidence, this court does not reweigh or

reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). A jury

verdict approved by the trial judge accredits the State’s witnesses and resolves all conflicts

in favor of the State. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994). On appeal, the

State is entitled to the strongest legitimate view of the evidence and all legitimate or

reasonable inferences which may be drawn therefrom. Id. This court will not disturb a

verdict of guilt due to the sufficiency of the evidence unless the defendant demonstrates that

the facts contained in the record and the inferences which may be drawn therefrom are

insufficient, as a matter of law, for a rational trier of fact to find the accused guilty beyond

a reasonable doubt. State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996).

Accordingly, it is the appellate court’s duty to affirm the conviction if the evidence, viewed

under these standards, was sufficient for any rational trier of fact to have found the essential

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elements of the offense beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253,

259 (Tenn. 1994).

Here, the defendant was convicted of aggravated robbery, defined by statute as “the

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

person in fear,” which is “accomplished 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.” T.C.A.

§ 39-13-402 (2005). We also note a recent decision from the Tennessee Supreme Court, State

v. Kevin Swift, __ S.W.3d __, No. W2007-00673-SC-R11-CD, 2010 Tenn. Crim. App.

LEXIS 158, at *8 (Tenn. March 25, 2010), concluding that the temporal proximity between

the taking of property and the use of violence or fear is the sole relevant factor in a case of

aggravated robbery. The facts underlying the crime in the Swift opinion are distinguishable

from the facts in the instant case because the taking was complete in Swift before the

defendant used violence.

In the instant case, the defendant did not deny to the police that he took the

merchandise from Sears. The defendant contends on appeal that the offense of theft had

already occurred and that he was actually in the process of escaping the store when the act

of violence occurred. Our review of the record reflects that the defendant took the same

merchandise twice. The first time he took the item, he escaped without the knowledge of the

Sears employees. He then returned to the store with the merchandise and tried to exchange

it for a store gift card. The defendant relinquished possession of the merchandise to the store

employees, who then verified that it was not damaged and that it, in fact, came from the

Hickory Hill location. He was approached by the loss prevention agents of the store, and he

threatened them with violence, stating that he would cut anyone who tried to stop or follow

him. He then retrieved the merchandise from behind the store counter and left the store. He

dropped the item in the parking lot and, brandishing a box cutter, approached the employees

of the store. This evidence, when considered in the light most favorable to the State, was

sufficient to support the defendant’s conviction for aggravated robbery. The defendant

would not have regained possession of the merchandise without the threat of violence.

The defendant was also convicted of aggravated assault where he intentionally or

knowingly caused Ms. Sadler to reasonably fear imminent bodily injury by using or

displaying a deadly weapon. T.C.A. § 39-13-102(a)(1)(B). The defendant contends that he

was not charged with the aggravated assault of Ms. Sadler. The record reflects that the

defendant was charged in three counts, the two for which he was convicted as well as the

aggravated assault of Nancy Webb, which was count two of the original indictment. The

State dismissed count two of the indictment prior to trial. The trial court renumbered count

three to count two to avoid suggesting to the jury that the defendant had been charged with

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other crimes. This was done without objection by the defendant. Tennessee Rule of

Criminal Procedure 7(b) allows an indictment to be amended at any time before jeopardy

attaches if no additional or different offense is charged and no substantial right of the

defendant is prejudiced. Because the count was amended prior to the jury being sworn and

did not change the charge against the defendant, he was properly convicted of the aggravated

assault of Ms. Sadler. The evidence at trial reflected that the defendant brandished the box

cutter within two feet of the victim and told the victim that she would be harmed if she tried

to follow him. She also testified that she was afraid. The evidence was sufficient to support

the defendant’s conviction for aggravated assault.

Next, the defendant argues that the trial court improperly imposed consecutive

sentences. A court may order sentences to run consecutively if the court finds by a

preponderance of the evidence that:

(1) [t]he defendant is a professional criminal who has knowingly devoted

the defendant’s life to criminal acts as a major source of livelihood;

(2) [t]he defendant is an offender whose record of criminal activity is

extensive;

(3) [t]he defendant is a dangerous mentally abnormal person so declared by

a competent psychiatrist who concludes as a result of an investigation

prior to sentencing that the defendant’s criminal conduct has been

characterized by a pattern of repetitive or compulsive behavior with

heedless indifference to consequences;

(4) [t]he defendant is a dangerous offender whose behavior indicates little

or no regard for human life, and no hesitation about committing a crime

in which the risk to human life is high;

(5) [t]he defendant is convicted of two (2) or more statutory offenses

involving sexual abuse of a minor with consideration of the aggravating

circumstances arising from the relationship between the defendant and

victim or victims, the time span of [the] defendant’s undetected sexual

activity, the nature and scope of the sexual acts and the extent of the

residual, physical and mental damage to the victim or victims;

(6) [t]he defendant is sentenced for an offense committed while on

probation; or

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(7) [t]he defendant is sentenced for criminal contempt.

T.C.A. § 40-35-115(b); see also State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002).

Furthermore, in the event the trial court finds that the defendant is a “dangerous offender,”

it must also determine whether the consecutive sentences (1) are reasonably related to the

severity of the offenses committed; (2) serve to protect the public from further criminal

conduct by the offender; and (3) are congruent with general principles of sentencing. State

v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).

Here, the record supports the trial court’s order of consecutive sentences. The

defendant has two prior convictions of felony aggravated assault and two convictions for

robbery with a deadly weapon. The defendant also has a number of felony and misdemeanor

convictions for theft. Based on the facts of this case and the defendant’s criminal history,

the trial court believed that he had no hesitation to commit a crime when there was a high

risk to human life. The trial court specifically relied on the fact that the defendant pulled a

knife after being apprehended. The trial court described the defendant as a professional

criminal who has knowingly committed his life to criminal acts as a major source of

livelihood and from which society needed to be protected. The record supports the

conclusion that the defendant had an extensive record and was a professional criminal and

that it did not abuse its discretion in imposing a consecutive sentence.

Conclusion

Based on the foregoing and the record as a whole, we affirm the judgments from the

trial court.

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JOHN EVERETT WILLIAMS, JUDGE

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