IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

September 25, 2019 Session

WILLIAM BOATWRIGHT v. STATE OF TENNESSEE

Appeal from the Criminal Court for Knox County

No. 102783 G. Scott Green, Judge

No. E2018-02185-CCA-R3-PC

The Petitioner, William Boatwright, appeals from the Knox County Criminal Court’s 

denial of his petition for post-conviction relief from his especially aggravated robbery,

aggravated robbery, aggravated burglary, and two aggravated assault convictions, for 

which he is serving a forty-seven-year sentence. The Petitioner contends that he received 

the ineffective assistance of counsel. We conclude that the Petitioner received the 

ineffective assistance of counsel, reverse the judgment of the post-conviction court, and 

remand this case for a limited motion for a new trial regarding the sufficiency of the 

evidence issues addressed in the appeal. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed; 

Case Remanded

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which ROBERT 

W. WEDEMEYER, J., joined. THOMAS T. WOODALL, J., filed an opinion concurring in part 

and dissenting in part. 

Joshua Hedrick, Knoxville, Tennessee, for the appellant, William Boatwright. 

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant 

Attorney General; Charme P. Allen, District Attorney General; and Leslie Nassios, 

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

This case initially arose from the Petitioner’s participation in a home invasion of 

an apartment in which multiple people were present. See State v. William Ray 

Boatwright, No. E2012-00688-CCA-R3-CD, 2013 WL 775787 (Tenn. Crim. App. Feb. 

28, 2013), perm. app. denied (Tenn. June 12, 2013). The trial court merged the 

aggravated assault convictions with the especially aggravated robbery conviction and 

03/10/2020
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sentenced the Petitioner to forty-nine years in incarceration. In the appeal from the 

conviction proceedings, this court summarized the facts as follows: 

This case arises out of a home invasion/robbery that occurred very 

early on the morning of May 22, 2008, at the Knoxville apartment of 

Christy Hines. Hines was at home with her mother, Jamesina Thompson; 

her friend, Alora Williams; her cousin, Stephon Matthews; and her two 

young children when someone knocked on the door. Matthews cracked the 

door open and a group of armed, masked men rushed in, terrorizing the

occupants, robbing Matthews of his cash, and taking a carton of cigarettes 

and a camcorder from the apartment. Just before leaving, one of the men, 

whom Williams later identified as the defendant, delivered a violent blow 

with his gun to Matthews’ head, fracturing his skull. The Knox County 

Grand Jury subsequently returned a five-count indictment charging the 

defendant with especially aggravated robbery, aggravated robbery, 

especially aggravated burglary, and two counts of aggravated assault.

At the defendant’s trial, Stephon Matthews testified that in May of 

2008, he was seventeen years old, a high school football player, and living 

with his cousin, Christy Hines, in her Knoxville apartment. On the night of 

the burglary, he and his family were at home when someone knocked on 

the door. They asked who it was, and a person answered “Mike.” He 

opened the door and four men rushed in, knocking him to the floor as they 

“slung the door open.” He heard someone say, “[C]’mon Strong,” and the 

men twice searched his pockets for his money as he lay on the floor. They 

were unable to get it, so he took $200 out of his pocket and threw it on the 

table for the men to take, saying, “[H]ere.” Before the intruders left, one of 

the men who was standing over him said, “I’m sorry I’ve got to do this to 

you, Cuz,” and then hit him in the head with a gun. Matthews testified that 

his skull was fractured, which required him to undergo emergency surgery 

and spend a week in the hospital. He said that his memory was impaired by 

his head injury and that he was no longer able to play football.

On cross-examination, Matthews acknowledged that his testimony at 

the preliminary hearing was that the man who struck him was wearing a 

blue bandana.

Jamesina Thompson testified that on May 21, 2008, she and her 

daughter, Christy Hines, spent the afternoon sitting outside with her 

daughter’s two children and a “bunch of little kids” from the community 

holding a dance contest for the children, which her daughter recorded on 

her camcorder. During that time, the defendant arrived with three other 
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men, said hello to them, and then went up the steps to the neighbors that he 

was visiting.

Later that night, her daughter’s friend, Alora Williams, came over to 

visit and Matthews, who had been out, returned home. Thompson testified 

that Hines was “getting her hair done” and the rest of them were watching 

television when someone knocked at the door. She twice asked who it was, 

and each time the person replied, “Mike.” She explained that she asked 

twice because the next-door neighbor was named Mike, but he was 

Caucasian and she knew that it was not his voice at the door. Suspicious, 

she peeked out the window and saw that the person was not standing in 

front of the door where she could see him but instead beside the door 

wearing a hood. In the meantime, Matthews had gotten up to answer the 

door. She and her daughter both called out a warning to him, but he moved 

fast and they were too late to prevent him from opening the door, with his 

foot behind it so that he could peek out. As soon as he did so, there was a 

“big kaboom” as the door was burst all the way open.

Thompson testified that she got behind a large speaker in the living 

room and remained there without moving the entire time that the intruders 

were in the home. She heard someone say, “[Y]ou already know what time 

it is,” followed by “[I]s there anybody else in here? If there’s anybody else 

in here, come out now or I’ll shoot everybody in here.” At that point, 

Williams, who had fled from the room when the door burst open, came 

from around the corner and stood against the living room wall. After that, 

Thompson heard people rummaging back and forth throughout the home, 

one of the intruders call her granddaughter by name as he asked her if 

anyone else was in the apartment; someone asking her granddaughter why 

the light was so dim and telling her not to cry; Matthews[’] volunteering to 

give up his money and one of the intruders saying, “[T]hat’s good”; one of 

the intruder[’]s instructing another one to get a box of Newport cigarettes; 

the sound of feet moving away; a period of silence; one of the intruder[’]s 

saying, “[S]orry I got to do this to you, Cuz”; and then the sound of 

Matthews[’] groaning.

Thompson testified that after the intruders left, Williams ran to shut 

the front door and she went to assist Matthews, who had “staggered up 

from the floor” and was lying slumped on the couch with blood running 

down his face. About eight or nine minutes later, Matthews’ voice became 

garbled and he appeared to be having a seizure, so they called an 

ambulance, which transported him to the hospital for emergency surgery. 

Thompson testified that, in addition to Matthews’ cash and the carton of 

cigarettes, the intruders took the camcorder that her daughter had been 
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using earlier that afternoon. She said that the next day they found the

camcorder, which had been broken “to shreds,” behind a neighbor’s house.

Thompson testified that she informed the police officers who 

investigated the crimes that one of the [intruders’] voices sounded very 

familiar to her. After the police left, she found two slugs on the carpet, 

which she turned over to the police. Thompson said that she heard a 

clicking sound at the time one of the intruders threatened to shoot everyone 

in the apartment, and she therefore assumed that the slugs fell from his gun 

at that time.

Christy Hines testified that at the time of the burglary she made 

money by selling crack cocaine from her Knoxville apartment. She said 

that on the afternoon of May 21, 2008, she was sitting outside in the 

parking lot with her mother and her children “making her sales” and 

videotaping the children when the defendant arrived with James Cade and 

two other men. She stated that the defendant and Cade remained at the 

complex for a couple of hours and saw her making drug sales during that 

time.

Hines testified that she, her family, and her friend, Alora Williams, 

were inside her apartment later that night when a man wearing a hood 

knocked at the door and identified himself as “Mike.” She said she was 

standing right behind her cousin when he cracked the door open, and she 

saw James Cade pulling a blue bandana over his face just before he and the 

other men rushed into the apartment. She stated that she got down on the 

floor between the wall and the couch, where she heard the intruders say a 

number of things, including: “[Y]’all mother fuckers know what it is”; 

“[W]here the shit at”; “[C]’mon, Strong”; and “[B]itch, get out [of] the 

kitchen and come back in there or I’m shooting everybody in the house.” 

She also heard one of the men direct another to get the carton of Newports, 

and one of them say, just before leaving, “I hate to do you like this, Cuz,” 

which was followed by a sound like an egg splattering and Matthews 

moaning.

Hines testified that the men took Matthews’ cash, her camcorder, 

and the carton of cigarettes. She described finding the two bullets in the 

living room after the police left her apartment and her discovery of the 

smashed camcorder behind the neighboring building the next day. She said 

that she described Cade to the police and later picked his photograph out of 

a photographic lineup. She also testified that she told the police she 

recognized the defendant’s voice and that she gave them his name.
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Alora Williams testified that she fled to the kitchen when the door of 

the apartment was burst open, but “the next thing [she] kn[e]w, a big gun 

was in [her] face” and one of the intruders threatened to shoot everyone in 

the apartment if she did not come out. She, therefore, put her hands in the 

air and returned to the living room, where she slumped against a wall and 

watched everything that transpired. She said that two men ran to the back 

of the apartment while two remained in the front. One of those two was 

wearing a blue bandana and the other one was wearing a stocking cap 

pulled down over his eyes. While the men in the back of the apartment 

were making noises that sounded as if they were tearing the rooms apart, 

the man in the stocking cap asked her questions about herself such as her 

name and where she was from, which she found odd. After the two men in 

the back ran to the front of the apartment and the men were heading out the 

door, the man who had been talking to her turned back and said, “I hate to 

do this to you, Cuz,” before striking Matthews on the head with his gun.

Williams made a positive courtroom identification of the defendant 

as the man who struck Matthews in the head and said that Matthews had 

already given his money to the defendant before the defendant struck him. 

She said that she could see “straight through” the defendant’s stocking cap 

and that she also recognized him by his voice. Williams explained that she 

had met the defendant before the burglary at a local mall, where he had 

engaged her in a couple of brief conversations and asked for her telephone 

number. They never went out on a date, however.

On cross-examination, Williams reiterated that she was able to see 

through the defendant’s stocking cap, which, she said, was made of “seethrough mesh.” She testified that the defendant was the only one who 

talked and that her attention was concentrated on his mouth and his 

distinctive teeth, which consisted of front teeth that “stuck out” and bottom 

teeth that were discolored, rotting, and “kind of wrangled.” On redirect 

examination, she testified that she identified the defendant from a 

photographic lineup about a week after the burglary and at a preliminary 

hearing held several weeks after the burglary.

James Cade testified that he was with the defendant in the parking 

lot of Hines’s apartment complex for about thirty minutes early in the 

evening of May 21, 2008, before leaving by himself. Later that day, the 

defendant called to ask where he could get some drugs, and he gave him 

Hines’s name. He and the defendant returned to the complex, met Hines as 

she was coming out of her apartment, and asked her about her drugs. She 

informed them that she did not have any at that time, so they left the 
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complex again and he dropped the defendant off before going home and 

then to bed.

At about 1:30 or 2:00 a.m. the next morning, the defendant called to 

ask for a ride. Cade testified that he picked up the defendant and two men 

who were with the defendant and took them to Hines’s apartment. All four 

of them walked up to Hines’s porch, and the defendant knocked on the door 

and announced that he was “Mike.” When the door opened “a little bit,” 

the defendant took out a gun and he and his two friends “bum-rushed in.” 

Cade said that he initially “froze up,” but then returned to his car and went 

home and back to bed. The next morning, the defendant called to ask why 

he had deserted them and he explained to the defendant that he “didn’t 

know it was going to go down like that.” The defendant then told him that 

he had to hit Matthews in the head with his pistol “so he couldn’t remember 

nothing” because Matthews had gotten too close to him when he was taking 

his money.

Cade, who said he had no criminal record before his charges in the 

instant case, testified that he had pled guilty to facilitation of especially 

aggravated robbery for his role in the crimes. On cross-examination, he 

acknowledged that he was originally charged with not only especially 

aggravated robbery, but also aggravated robbery and especially aggravated 

burglary. He further acknowledged that he had agreed to testify against the 

defendant in exchange for being allowed to plead guilty to the lesserincluded offense of facilitation of especially aggravated robbery and the 

dismissal of the other charges against him.

Investigator Tiffany Copley of the Knoxville Police Department’s 

Forensic Unit identified the bullets collected from the crime scene as well 

as various photographs of the apartment and Matthews’ head injury and 

testified that she was unable to obtain any usable fingerprints from the 

apartment.

Matthews’ medical records, which included a discharge summary 

noting that he had surgery for a skull fracture, were admitted as an exhibit 

by stipulation of the parties and published to the jury.

Investigator Charles Lee of the Knoxville Police Department’s 

Major Crimes Unit testified that he showed Williams a photographic lineup 

on May 30, 2008, from which she positively identified the defendant. On 

that same day, he showed Hines a separate photographic lineup from which 

she made a positive identification of James Cade.
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Following the trial court’s denial of the defendant’s motion for 

judgment of acquittal, Ebony Wright testified on the defendant’s behalf that 

the defendant was with her at a nightclub from approximately 11:30 to 

11:45 p.m. on May 21, 2008, until 3:45 a.m. the next day. On crossexamination, Wright testified that her earlier preliminary hearing testimony 

in which she said that she and the defendant were together on the night of 

May 22, 2008, was a “miscommunication.” She acknowledged having 

testified at that hearing that she had been watching the Cavaliers play the 

Lakers on the night the defendant came to visit her. When informed that 

the game did not occur on that night, she testified that “it might’ve been a 

different team.” Finally, she acknowledged that she had been convicted of 

shoplifting in June 2000.

The defendant elected not to testify and rested his case without 

presenting any additional evidence. Following deliberations, the jury 

convicted him of the indicted charges.

Id. at *1-5. On appeal, this court modified the Petitioner’s conviction for especially 

aggravated burglary to aggravated burglary and modified his effective sentence to fortyseven years’ incarceration. The judgments of the trial court were affirmed in all other 

respects. 

The Petitioner sought post-conviction relief, alleging multiple instances of 

ineffective assistance of trial counsel, and the post-conviction court denied relief. On 

appeal, this court summarized the facts as follows: 

. . . [T]rial counsel testified that he had practiced law since 2003. 

Counsel stated that he could not recall whether he spoke with the 

Petitioner’s previous attorney about the case, that he was unaware previous 

counsel had hired an investigator, and that he did not discuss the 

Petitioner’s case with previous counsel’s investigator. Counsel said that he 

did not review witness statements or recordings prepared by previous 

counsel’s investigator and that he was unaware Ms. Williams “recanted her 

identification” of the Petitioner to the investigator before the trial. 

Trial counsel testified that he investigated the case and that his fee 

for investigating may have been included with the “prepare for trial” or 

“discovery” fee claim entries. Counsel stated that he reviewed the 

evidence, that he and the Petitioner, along with the Petitioner’s girlfriend, 

discussed the case, and that he spoke with the State during his investigation. 

Counsel said that he did not interview the victims but that the victims’ 

testimony was “consistent with what [the Petitioner] said they were going 

to testify to, [and] with what the State said they were going to testify to.” 
-8-

Counsel stated that codefendant Cade was an accomplice, that the trial 

transcript did not reflect that counsel requested an accomplice jury 

instruction, and that he did not know if the issue was raised in a motion for 

a new trial. Counsel stated that he raised the lack of an instruction on 

appeal but agreed that if an issue were not raised in a motion for a new trial, 

it was generally waived.

Trial counsel testified that the “heart of the case” was the especially 

aggravated robbery charge and that he was aware the robbery statute stated 

the taking must be concurrent with or preceded by force. When asked 

whether he was “familiar with cases such as Owens and Swift about a 

taking followed later in time by an assault and how it’s distinguished from 

a robbery,” counsel said that he had not been presented with that issue and 

was unaware of the issue at the time of the Petitioner’s trial. The following 

exchange occurred between the post-conviction court, post-conviction 

counsel, and the State:

THE COURT: Was sufficiency of the evidence an issue 

litigated on appeal? 

THE STATE: The [court of criminal appeals] found, your 

Honor, please, that there was sufficient evidence to support 

the convictions and just – I think the only thing that changed 

was that I convicted him of especially aggravated burglary 

and especially aggravated robbery, and so the [court of 

criminal appeals] decided that that was duplicative and so 

they reduced the especially aggravated burglary to aggravated 

burglary and adjusted his sentence.

. . . 

[POST-CONVICTION COUNSEL]: Sufficiency was 

litigated. This – the exact issue of the timing of the force was 

not.

THE COURT: But how would sufficiency of the evidence not 

subsume that issue?

[POST-CONVICTION COUNSEL]: . . . [I]f no party pressed

it to the [c]ourt, the court of appeals cannot be expected to 

reach into that issue without having been asked and find 

essentially that nobody’s complained about the timing of the 
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force, but we’ve decided that we’re going to deal with the 

timing of the force.

. . .

THE COURT: Well, go ahead. Go ahead.

Trial counsel stated that he did not argue that the serious bodily injury 

occurred after the taking and that he could not remember if he argued the 

Petitioner committed an aggravated robbery rather than especially 

aggravated robbery during his closing argument. 

Trial counsel testified that the Petitioner received a twelve-year 

sentence on the aggravated robbery of Ms. Williams. Counsel was shown a 

transcript of Ms. Williams’s testimony and was asked what property was 

taken from Ms. Williams. The following exchange occurred: 

[THE STATE]: Your Honor, let me just object at this point –

THE COURT: Why should I not sustain that, [PostConviction Counsel], if the court of criminal appeals has 

ruled on the sufficiency of the evidence within this record to 

sustain these convictions, has this not been previously 

determined? Where are we going?

. . . 

[POST-CONVICTION COUNSEL]: Your Honor, the issue 

before the Court is, in this case, whether or not it was argued 

to the trial court level and argued on appeal whether that issue 

was raised. Now, I recognize that the court of criminal 

appeals was asked as a general proposition to review the 

sufficiency of the evidence, but as this [c]ourt is aware our 

position is that a court, a trial court, or an appellate court, 

should not be expected to on its own parse through the issues 

when the issues are not pressed by the litigants. 

. . . 

THE COURT: All right. Well, I’ll give you a little latitude. I 

know what the issue is here and you know where I stand on –

[POST-CONVICTION COUNSEL]: I do.
-10-

THE COURT: – the sufficiency of the evidence.

Trial counsel testified that the fee claim reflected he spent one and 

one half hours with the Petitioner before the trial. Counsel stated that he 

spoke with the Petitioner about testifying and the Petitioner’s criminal 

record and that “whether it was a [thirty] second discussion or a [thirty] 

minute discussion, [the Petitioner] knew he could not testify.” Counsel 

stated that whether to testify was the Petitioner’s decision “but with his 

record, it would’ve been devastating to any sort of defense.” 

Trial counsel testified that this case was all about “identification” 

and that Ms. Williams was the only witness who could “sort of identify” the 

Petitioner. Counsel agreed that the identification of the Petitioner 

“basically turned on Ms. Williams’s somewhat identification and the 

testimony of [codefendant] Cade” and that Ms. Williams had selected the 

Petitioner from a photograph lineup a few weeks after the incident. 

On cross-examination, trial counsel testified that he did not represent 

the Petitioner at the preliminary hearing, that he received a transcript of the 

preliminary hearing, and that Ebony Wright testified as a defense witness at 

the hearing and at the trial. Counsel stated that previous counsel withdrew

because the Petitioner was uncooperative. 

Trial counsel testified that he learned codefendant Cade was going to 

testify days before the trial, that he cross-examined codefendant Cade about

his hope to receive a lesser sentence in exchange for his testimony, and that 

codefendant Cade’s testimony was corroborated by other evidence. 

Counsel said Ms. Williams identified the Petitioner on the night of the 

robbery in a photograph lineup and at the preliminary hearing. Counsel 

stated that Ms. Williams said she first met the Petitioner at a shopping mall 

and that she recognized the Petitioner’s teeth and voice during the robbery. 

Counsel said that Ms. Hines and Ms. Thompson testified that they saw the 

Petitioner and codefendant Cade in their neighborhood on the day of the 

robbery and that Ms. Hines said she recognized the Petitioner’s voice. 

Counsel stated that Ms. Williams and Mr. Matthews were inside the 

apartment when the robbery occurred and that Ms. Williams did not suffer 

serious bodily injury. 

Trial counsel testified that the State filed a notice of intent to seek 

enhanced punishment based on the Petitioner’s criminal record, which 

included crimes of violence and dishonesty, including theft. Counsel stated 

that he agreed with the Petitioner’s decision not to testify and that the 

Petitioner would have had “major credibility issues” if he had testified. 
-11-

Trial counsel testified that his primary focus was to challenge the 

Petitioner’s identity and codefendant Cade’s testimony. Counsel said that 

he called Ms. Wright as an alibi witness but that her testimony did not 

provide a “complete alibi.” Counsel stated that it was possible his fee claim 

did not include all of his work in the case. Counsel said that he filed a 

timely motion for a new trial and a notice of appeal. On redirect 

examination, counsel testified that he did not challenge the admissibility of 

the Petitioner’s previous convictions before the trial. 

Private Investigator Thomas Ham testified that previous counsel

hired him to investigate the Petitioner’s case and that he interviewed Ms. 

Williams by telephone. A transcript of the interview was introduced as an 

exhibit and reflected that Ms. Williams told Mr. Ham that the incident was 

“so long ago [she didn’t] remember anything” and that she could not 

recognize the Petitioner’s voice. Mr. Ham stated that he met with previous 

counsel and the Petitioner on one occasion and that he created a 

memorandum of the meeting. Mr. Ham said trial counsel never contacted 

him, asked for his records, or requested that he continue investigating. On 

cross-examination, Mr. Ham testified that he was unaware Ms. Williams

identified the Petitioner from a photograph lineup. 

William Boatwright v. State, No. E2017-00211-CCA-R3-PC, 2018 WL 2324369, at *1-6 

(Tenn. Crim. App. May 22, 2018).

On appeal, this court remanded the case to the post-conviction court for findings 

of fact and conclusions of law related to the Petitioner’s allegations that trial counsel 

provided ineffective assistance by failing to challenge the sufficiency of the especially 

aggravated robbery conviction on the basis that Mr. Matthews did not suffer serious 

bodily injury until after the taking had occurred and by failing to assert that the 

aggravated robbery conviction relative to Ms. Williams should have been dismissed 

because Ms. Williams did not possess the property when it was stolen. The present 

appeal is limited to these allegations of ineffective assistance of trial counsel.

On September 27, 2018, the post-conviction court determined, without receiving 

additional evidence, that the injury inflicted upon the Mr. Matthews occurred “during 

with and concurrent with the taking of the property.” Relative to whether Ms. Williams 

possessed the property taken during the incident, the court determined that the trial court, 

as the thirteenth juror, concluded the evidence was sufficient to support the Petitioner’s 

conviction for the aggravated robbery of Ms. Williams, relying in part upon the pattern 

jury instruction definition of “owner.” As a result, the court determined that the 

Petitioner failed to establish he received the ineffective assistance of counsel.
-12-

Although the post-conviction court requested that post-conviction counsel prepare 

a proposed order based upon the court’s determinations, an order was not entered, and on 

November 9, 2018, trial counsel was recalled for further testimony.

Trial counsel testified that Mr. Matthews, the victim of the especially aggravated 

robbery conviction, gave the Petitioner, who held a pistol, and the codefendants 

approximately $200. Counsel agreed that Mr. Matthews was struck in the head with the 

pistol, which counsel referred to as “pistol whipped,” as the Petitioner and the other 

perpetrators “were on their way out” of the apartment. Counsel said that he would not 

dispute the trial evidence if it showed that Mr. Matthews was assaulted after “they had 

the money.” Counsel said that the basis for the serious bodily injury was Mr. Matthew’s 

skull fracture.

Trial counsel testified, when asked if he were aware of our supreme court’s Owens

and Swift opinions, that he was aware of the case, which he did not identify by name, that 

predated the Petitioner’s trial but that the other case was “an unpublished opinion that 

may have not quite been run through yet or just been decided” by this court. Counsel 

agreed that he previously testified that he was not aware of any issue related to the timing 

of the taking and the infliction of serious bodily injury upon Mr. Matthews. Counsel said 

that the chosen defense was identity and that to argue an especially aggravated robbery 

did not occur because of the timing of the force used to inflict serious bodily injury would 

have been disingenuous to the jury. Counsel agreed he neither raised the issue in the 

motion for a new trial nor on appeal. Counsel disagreed that if a court determined that 

the taking preceded the force, an especially aggravated robbery could not have occurred.

Trial counsel testified that the offense had not been completed before the injury 

was inflicted upon Mr. Matthews because the incident occurred inside an apartment, 

rather than on the street. When asked if he considered whether the facts supported an 

especially aggravated robbery conviction, counsel stated, 

A lot of things were considered. The identification of [the Petitioner] was 

the basis [of] our defense. That’s the route we both chose to go down. He 

had his alibi witness. He’s not there, so we did not go down other routes 

that would’ve been a little difficult to sustain to a judge or a jury.

Counsel said, though, that he did not know if he considered but chose not to raise the 

issue. Counsel agreed that his testimony was that he was unaware of this issue at the time 

of the trial and that he neither raised the issue in the motion for a judgment of acquittal 

nor on appeal. Counsel explained, 

The crime would have not been completed in order to have been able to 

make that argument. I need to have factual basis for me to make an 

argument to this Court, to that Court, to an Appellate Court, I’m not going 
-13-

to make an argument that I don’t believe is a credible argument based in 

fact and in law when you combine the facts to the law, so that decision was 

made. 

Counsel said this decision was made when he filed the appeal. When asked when 

counsel became aware of the issue before seeking appellate relief, he stated, “I don’t 

know. I don’t know whenever. I don’t know.” He said that he analyzed this issue “after 

the hearings we’ve had and the appeal briefs that [post-conviction counsel] filed and I 

looked at, I had to apply those to figure out what [post-conviction counsel] was after.” 

Counsel did not think he was “wrong in what [he] did back then.” Counsel stated that the 

sufficiency of the especially aggravated robbery conviction “just wasn’t anything that we 

were focused on until it came up afterwards.”

Trial counsel testified that $200 was taken from Mr. Matthews and that a 

camcorder, cigarettes, and a PlayStation console were taken from the apartment. Counsel 

did not dispute that Ms. Williams did not live in the apartment. Counsel disagreed with 

the assertion that if Ms. Williams did not own any of the property taken during the 

incident and did not have possession of the property, she could not have been a robbery

victim. Counsel stated that he assumed everyone inside the apartment owned “everything 

in the apartment, if I don’t know who owns specific things.” Counsel agreed the jury was 

able to assume that everyone inside the apartment owned everything inside the apartment. 

He did not recall whether he questioned Ms. Williams about whether she owned any of 

the property taken during the incident. Counsel said that he neither raised this issue in 

the motion for a judgment of acquittal, the motion for a new trial, nor on appeal. Counsel 

said he did not know why he did not raise the issue.

The post-conviction court concluded from the bench that trial counsel exercised 

“sound trial strategy not to be questioning and raising these issues in the presence of the 

jury when the whole defense is identification.” The court determined that counsel did not 

provide ineffective assistance “in his representation for how he tried the case in the 

presence of the jury, i.e., the questions and the focus being is this the guy who did it?” 

The court found that the issue was whether counsel should have raised the issues to the 

trial court in the motion for a judgment of acquittal and on appeal.

Trial counsel testified further that the evidence showed Ms. Williams was not in 

actual possession of the items taken during the incident but that Ms. Williams was in 

constructive possession because she was inside the apartment. Counsel agreed that if Ms. 

Williams had not been in constructive possession, the charge regarding Ms. Williams 

would have been dismissed as a matter of law, which would have decreased the 

Petitioner’s sentence by twelve years.
-14-

On cross-examination, trial counsel testified that three people were involved in the 

home invasion and that two people were prosecuted. Counsel agreed the victims testified 

that all three perpetrators possessed firearms and ransacked the apartment. Counsel 

stated that Mr. Matthews was struck in the head as the perpetrators were “on the way to 

the door.” Counsel agreed Mr. Matthews was a large person who could have “protected 

the women or tried to stop” the perpetrators.

The post-conviction court entered a written order denying relief. Relative to 

whether trial counsel provided ineffective assistance by failing to “argue/litigate the 

sufficiency question(s) to the jury,” the court determined that counsel made reasonable 

tactical decisions not to “argue whether the State proved the elements of each indicted 

offense,” based upon the chosen defense of mistaken identity. The court stated, “If one’s 

client was not present and took no part in the crime or crimes, it matters not what 

occurred at the scene of the crime.”

Relative to whether trial counsel provided ineffective assistance by failing to 

“raise/argue the sufficiency question to the trial court” in a motion for a judgment of 

acquittal and on appeal, the post-conviction court determined that the Petitioner’s reliance 

on State v. Owens, 20, S.W.3d 634, 637 (Tenn. 2000), and State v. Swift, 308 S.W.3d 

827, 829 (Tenn. 2010), was misplaced and “easily distinguishable from the facts of this 

case.” The court, relying on State v. Henderson, 531 S.W.3d 687 (Tenn. 2017), 

determined that it was reasonable to infer from the evidence that the Petitioner and the 

other perpetrators each had “a continuous larcenous intent” at the time Mr. Matthews was 

struck. The court determined that Swift and Owens would have been controlling authority 

at the time of the Petitioner’s trial and that trial counsel could not be faulted for not 

having the benefit of Henderson. The court concluded that counsel had not provided 

ineffective assistance.

Relative to whether trial counsel provided ineffective assistance by failing to 

allege in a motion for a judgment of acquittal and on appeal that insufficient evidence 

supported the aggravated robbery of Ms. Williams, the post-conviction court determined 

that Ms. Williams was present inside the apartment when multiple armed perpetrators 

entered the apartment and took multiple items at gunpoint. The court found that the 

evidence supported the conviction. The court concluded that counsel had not provided 

ineffective assistance. This appeal followed.

Post-conviction relief is available “when the conviction or sentence is void or 

voidable because of the abridgement of any right guaranteed by the Constitution of 

Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103 (2012). A

petitioner has the burden of proving his factual allegations by clear and convincing 

evidence. Id. § 40-30-110(f) (2012). A post-conviction court’s findings of fact are 

binding on appeal, and this court must defer to them “unless the evidence in the record 

preponderates against those findings.” Henley v. State, 960 S.W.2d 572, 578 (Tenn. 
-15-

1997); see Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction 

court’s application of law to its factual findings is subject to a de novo standard of review 

without a presumption of correctness. Fields, 40 S.W.3d at 457-58.

To establish a post-conviction claim of the ineffective assistance of counsel in 

violation of the Sixth Amendment, a petitioner has the burden of proving that (1) 

counsel’s performance was deficient and (2) the deficient performance prejudiced the 

defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell, 

506 U.S. 364, 368-72 (1993). The Tennessee Supreme Court has applied the Strickland

standard to an accused’s right to counsel under article I, section 9 of the Tennessee 

Constitution. See State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

A petitioner must satisfy both prongs of the Strickland test in order to prevail in an 

ineffective assistance of counsel claim. Henley, 960 S.W.2d at 580. “[F]ailure to prove 

either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective 

assistance claim.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). To establish the 

performance prong, a petitioner must show that “the advice given, or the services 

rendered . . . , are [not] within the range of competence demanded of attorneys in criminal 

cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); see Strickland, 466 U.S. at 

690. The post-conviction court must determine if these acts or omissions, viewed in light 

of all of the circumstances, fell “outside the wide range of professionally competent 

assistance.” Strickland, 466 U.S. at 690. A petitioner “is not entitled to the benefit of 

hindsight, may not second-guess a reasonably based trial strategy by his counsel, and 

cannot criticize a sound, but unsuccessful, tactical decision.” Adkins v. State, 911 S.W.2d 

334, 347 (Tenn. Crim. App. 1994); see Pylant v. State, 263 S.W.3d 854, 874 (Tenn. 

2008). This deference, however, only applies “if the choices are informed . . . based upon 

adequate preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). 

To establish the prejudice prong, a petitioner must show that “there is a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the proceeding 

would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.” Id.

I. Especially Aggravated Robbery

The Petitioner contends that trial counsel provided ineffective assistance by failing 

to challenge the especially aggravated robbery conviction on the basis that the force used 

to inflict serious bodily injury upon Mr. Matthews did not occur until after the theft had 

been completed. The State responds that counsel was not ineffective in this regard

because “the law regarding the timing of the serious bodily injury” was not resolved until 

after the Petitioner’s trial.
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As this court stated in its previous opinion in this post-conviction matter, “[t]he 

issue of whether the evidence is sufficient to establish a defendant’s identity as the 

perpetrator is distinct from whether trial counsel provided deficient performance by 

failing to challenge a conviction on a specific basis.” William Boatwright, 2018 WL 

2324369, at *8. In the appeal from the conviction proceedings, trial counsel contended 

that the evidence was insufficient to support the Petitioner’s convictions, generally, 

because the “only evidence linking him to the crimes [was] the uncorroborated testimony 

of his alleged accomplice, James Cade.” William Ray Boatwright, 2013 WL 7757787, at 

*6. Counsel argued that the photograph lineup was flawed and that the Petitioner’s face 

was never seen during the incident, asserting that the Petitioner’s identity was not 

sufficiently established by the evidence. This court’s analysis of the sufficiency of the 

evidence was limited to whether codefendant Cade’s identification of the Petitioner was 

supported by sufficient independent evidence, and this court concluded that the testimony 

of the victims supported the identity of the Petitioner. This court did not consider 

whether the State presented sufficient evidence of the individual elements of the 

conviction offenses because such an allegation was not raised on appeal. See id. at *6-7. 

To the extent that the post-conviction court denied relief on the basis that sufficiency of 

the evidence was raised in the appeal from the conviction proceedings, this court based 

its determination upon the Petitioner’s limited challenge to the sufficiency of the identity 

evidence.

As relevant here, especially aggravated robbery is a robbery accomplished with a 

deadly weapon and in which the victim suffers serious bodily injury. T.C.A. § 39-13-403 

(2018). Robbery is defined as “the intentional or knowing theft of property from the 

person of another by violence or putting the person in fear.” Id. § 39-13-403 (2018). A 

deadly weapon includes “[a] firearm or anything manifestly designed, made or adapted 

for the purpose of inflicting death or serious bodily injury[.]” Id. § 39-11-106(a)(5) 

(Supp. 2011) (subsequently amended). Serious bodily injury includes bodily injury that 

involves a substantial risk of death. Id. § 39-11-106(a)(34)(A).

In State v. Owens, 20 S.W.3d 634, 641 (Tenn. 2000), our supreme court 

determined that to sustain a robbery conviction, the State was required to establish that 

“the use of violence or fear must precede or be contemporaneous with the taking of 

property from the person.” The defendant in Owens shoplifted from a retail store and 

fled the scene. After running approximately five blocks, the defendant stopped, turned 

toward a store employee who had given chase, and displayed a box cutter to the 

employee. Id. The court rejected the argument that the robbery statute included using 

force to retain property or to escape a crime scene. Id. at 640. Our supreme court 

determined that the evidence was insufficient to establish that the act of violence or fear 

preceded or was contemporaneous with the taking and that the act of violence or fear was 

“temporally remote.” Id. at 641. As a result, the court modified the defendant’s robbery 

conviction to theft. Id. at 641-42.
-17-

In State v. Swift, 308 S.W.3d 827, 828-31 (Tenn. 2010), our supreme court 

considered whether the location of the use of violence or fear was relevant to 

distinguishing between theft and robbery, and it concluded that “the temporal proximity 

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

in determining whether a robbery occurred. The defendant in Swift shoplifted from a 

retail store by taking items and placing them inside his pants, and when store employees 

attempted to stop the defendant from leaving the store with the merchandise, the 

defendant swung a knife at the employees, causing them to back away from the defendant 

out of fear. Id. at 829. In determining that the evidence was insufficient to sustain an 

aggravated robbery conviction, the Swift court determined that the location of the use of 

violence or fear was irrelevant to whether a robbery occurred and that the critical inquiry 

was determining “when the taking was complete.” Id. at 831. The Swift court 

determined that the taking was complete when the defendant “removed” and “concealed” 

items inside his pants, showing intent to deprive the retail store of its property, and that 

the use of violence “did not precede or occur contemporaneously with the removal and 

concealment” of the property. Id. As a result, the court determined that a robbery had 

not occurred and modified the conviction offense from aggravated robbery to aggravated 

assault.” Id.

In Eldridge Hill v. State, No. W2009-01481-CCA-R3-PC, 2010 WL 4027728, at 

*1, 7 (Tenn. Crim. App. Oct. 14, 2010), perm. app. denied (Tenn. Feb. 17, 2011), this 

court considered a petitioner’s allegation of ineffective assistance of counsel in that 

counsel failed to challenge the petitioner’s especially aggravated robbery conviction on 

the basis that the robbery had been completed before the use of force resulting in serious 

bodily injury. The evidence showed that, while holding a gun to the victim’s head, the 

petitioner took money from the victim and attempted to ascertain the location of the 

victim’s marijuana. As the petitioner attempted to learn the location, the victim ran, and 

the petitioner “immediately” shot the victim. Id. at *1, 12. The Eldridge Hill court 

concluded, after considering Owens and Swift, that the act of violence, which resulted in 

serious bodily injury, occurred during the commission of the theft and that as a result, the 

evidence supported the especially aggravated robbery conviction. Id. at *12. The court 

determined that although the petitioner had taken the victim’s money before the serious 

bodily injury was inflicted, the petitioner thought the victim was hiding marijuana and 

that the petitioner was attempting to take the marijuana when the victim ran and the 

petitioner shot him.

1

 Id. We note that subsequent to Eldridge Hill, this court has applied 

the same analysis. See State v. Harold Allen Vaughn, No. W2016-00131-CCA-R3-CD, 

2018 WL 1597421, at *4 (Tenn. Crim. App. Mar. 29, 2018) (concluding that the evidence 

was insufficient to show that serious bodily injury was inflicted before or during a 

 

1 Although filed after the Petitioner’s August 2, 2011 trial, our supreme court discussed Eldridge Hill in 

State v. Henderson, 531 S.W.3d 687, 696-97 (Tenn. 2017). The court stated that this court correctly 

determined the evidence supported an especially aggravated robbery conviction based upon “not only the 

timing of the events at issue, but the [petitioner’s] intent during the course of conduct.” Id. at 697. 
-18-

robbery because the defendant shot the victim approximately thirty seconds after the 

defendant had taken all the victim’s property at gunpoint and after the defendant knew 

the victim did not have any additional property to take); State v. Charles Steven Shivers, 

No. M2009-02079-CCA-R3-CD, 2011 WL 6382552, at *7-8 (Tenn. Crim. App. Dec. 11, 

2011) (concluding that the act of violence, which resulted in serious bodily injury, was 

contemporaneous with the taking when the victim was shot before the perpetrators “rifled 

through” the victim’s pants and demanded that the victim identify the location of the 

victim’s money), perm. app. denied (Tenn. Apr. 11, 2012); see also State v. Jamaal 

Austin, No. W2017-01632-CCA-R3-CD, 2018 WL 4849141, at *6 (Tenn. Crim. App. 

Oct. 5, 2018), perm. app. denied (Tenn. Feb. 25, 2019).

After the Petitioner’s trial, a panel of this court in State v. Antonio Henderson and 

Marvin Dickerson, No. W2015-00151-CCA-R3-CD, 2016 WL 3390627, at *7 (Tenn. 

Crim. App. June 10, 2016), considered, in relevant part, the sufficiency of the evidence 

supporting an especially aggravated robbery conviction. The panel concluded that 

serious bodily injury could be inflicted before, during, or after the taking of property from 

a person. In reversing this conclusion, our supreme court determined that none of the 

language in the especially aggravated robbery statute supports the determination that 

serious bodily injury could be inflicted after the conclusion of the taking accomplished 

with a deadly weapon. Henderson, 531 S.W.3d at 697. In fact, our supreme court stated 

that this court’s holding “adopted the continuous offense theory that the Owens court 

rejected.” The court concluded that 

robbery accomplished with a deadly weapon is complete once the accused 

has completed his theft of the property he intended to steal. If the victim 

suffers serious bodily injury during the commission of the robbery, the 

offense may constitute especially aggravated robbery. It is appropriate to 

consider the accused’s conduct and intent when determining whether the 

underlying theft has been completed. 

Id. at 698. (Emphasis added). In applying Owens and Swift, the court reiterated that “the 

‘temporal proximity’ required by the robbery offenses would focus . . . on the 

circumstances indicative of the defendant’s conduct and the intent to determine whether, 

at the moment in time at issue, the defendant has definitively completed every element of 

the underlying theft,” which includes an analysis of whether the defendant had completed 

the “theft of all the property he intended to steal.” Id. at 696.

The parties do not dispute that Mr. Matthews suffered serious bodily injury. 

Therefore, the critical inquiry in this case is whether trial counsel provided deficient 

performance by failing to challenge the sufficiency of the evidence of the Petitioner’s 

especially aggravated robbery conviction on the basis that the act of violence or force, 

which resulted in serious bodily injury to Mr. Matthews and elevated the charged offense 

to especially aggravated robbery, occurred after the taking was complete. 
-19-

The trial evidence reflects that multiple armed men “rushed” into Ms. Hines’s 

apartment, that the men searched Mr. Matthews for money, that the men were 

unsuccessful in locating money, and that Mr. Matthews retrieved $200 from his pocket 

and threw the money on a table. Ms. Thompson testified that she hid behind a speaker 

during the incident but heard the men rummaging through the apartment before Mr. 

Matthews retrieved the money from his pocket. Ms. Thompson then heard one man

instruct the others to take cigarettes before she heard the “sound of feet moving away.” 

After a period of silence, Ms. Thompson heard one man say, “[S]orry I got to do this to 

you, Cuz.” Ms. Hines similarly testified that “just before” the men left, she heard one 

man say, “I hate to do you like this, Cuz.” Ms. Hines said that she next heard Mr. 

Matthews moaning. 

Ms. Williams witnessed the entire incident from her vantage point and testified 

that after the men forced their way into the apartment, she stood against a wall. She saw 

two men run to the back of the apartment while two men remained in the front of the 

apartment. She stated that the men in the back made noises as though they were “tearing 

rooms apart,” that one of the men who remained in the front asked her questions, and that 

the two men in the back returned to the front. Ms. Hines said that after the two men 

returned to the front of the apartment and “the men were heading out the door,” the man 

who had asked her questions “turned back” and said, “I hate to do this to you, Cuz,” 

before assaulting Mr. Matthews. Ms. Williams testified that “[Mr.] Matthews had 

already given his money” to the Petitioner before the assault. In addition to the cigarettes 

and Mr. Matthews’s money, the victims realized after the incident that a camcorder and a 

PlayStation console had been taken. Codefendant Cade testified that the Petitioner 

admitted striking Mr. Matthews on the head with a pistol “so he couldn’t remember 

nothing” because Mr. Matthews “had gotten too close” when the Petitioner took the 

money. 

As a result, the trial evidence reflects that the perpetrators had taken all of the 

property they intended to take and were leaving the apartment when the Petitioner turned 

and struck Mr. Matthews. The taking was complete at the time of the force used to inflict 

serious bodily injury. Likewise, the intent behind the force was not intended to 

accomplish a theft or taking. The intent of the force was to prevent Mr. Matthews from 

identifying the Petitioner and, therefore, to prevent the Petitioner’s prosecution.

Furthermore, we disagree with the post-conviction court’s determination that the 

Petitioner’s reliance on Owens and Swift is misplaced. Although the offenses in Owens

and Swift occurred in retail establishments, Swift made clear that the location of where the 

events occur is irrelevant. Swift, 308 S.W.3d at 831. The critical inquiry of any robbery 

offense is “when the taking was complete.” Id. Owens and Swift had been published 

before the Petitioner’s trial and provided a legal basis for challenging the sufficiency of 

the evidence of all robbery offenses. Furthermore, this court’s opinion in Eldridge Hill, 
-20-

applying the principles of Owens and Swift to especially aggravated robbery and to the 

very issue in this case, was likewise available at the time of the Petitioner’s trial.

The record reflects that trial counsel testified at the initial post-conviction hearing 

that he was aware the robbery statute stated the force or act of violence must precede or 

be concurrent with the taking. However, when asked about his familiarity with Owens

and Swift, counsel stated that “he had not been presented with that issue and was unaware 

of the issue at the time of the Petitioner’s trial.” Counsel testified that the critical issue 

and the chosen defense theory was the identity of the Petitioner as one of the perpetrators, 

not whether the elements of each offense were established beyond a reasonable doubt.

After this case was remanded to the post-conviction court, trial counsel’s initial 

testimony relative to his knowledge of Owens and Swift was vague, at best, but counsel 

admitted he was not aware of any issue related to the timing of the taking and the force, 

which resulted in serious bodily injury. Rather, counsel’s focus was only the Petitioner’s 

identity. Counsel rejected any notion that the timing of the force, which resulted in 

serious bodily injury, was an issue in this case because the incident occurred inside an 

apartment. However, based upon Swift, this is an inaccurate statement of the law. 

Furthermore, counsel admitted that he did not analyze the timing between the force 

resulting in serious bodily injury and the taking until after the initial post-conviction 

hearing and the previous appeal. 

As a result, the record does not support the post-conviction court’s determination 

that trial counsel made a strategic decision not to challenge the sufficiency of the 

evidence based upon the failure to prove that the use of force, which resulted in serious 

bodily injury, occurred before the taking was complete. We note that although the 

defense theory at the trial focused on the Petitioner’s identity, nothing prevented the 

defense from challenging the sufficiency of the convicting evidence as a matter of law 

after the State had rested its case-in-chief in a motion for a judgment of acquittal, after 

the trial in a motion for a new trial, and on appeal, if necessary. Counsel had an 

obligation to ensure that the State proved beyond a reasonable doubt each element of the 

offense, and counsel’s failure in this regard resulted in deficient performance. Based 

upon the state of the law at the time of the trial, which included Owens, Swift, and 

Eldridge Hill, the Petitioner has shown that counsel’s deficient performance resulted in 

prejudice because a reasonable probability exists that the trial court or this court would 

have acted in the Petitioner’s favor if the issue had been raised in the conviction 

proceedings.

In reaching this conclusion, we have not overlooked the post-conviction court’s 

determination that trial counsel could not be faulted for not having the benefit of the most 

recent supreme court decision in Henderson. However, Henderson does not create new 

law but rather applies the legal principles in Owens and Swift, and it approves of this 

court’s opinion in Eldridge Hill, regarding the timing and intent of the act of violence, as 
-21-

required for any robbery offense, in the context of especially aggravated robbery. The 

State was required to show at the time of the trial that the act of violence, which resulted 

in serious bodily injury, occurred before or during the taking of the property. The 

evidence does not support such a conclusion in this case. The witness testimony shows 

that the taking had been completed and that the men were leaving the apartment when the 

Petitioner turned and struck Mr. Matthews. The assault was not committed to effectuate 

the taking of Mr. Matthews’s money or the additional property because the taking was 

complete at the time Mr. Matthews was assaulted.

We likewise reject the State’s argument that, at the time of the Petitioner’s trial, 

the question of when the serious bodily injury must occur had not been resolved. This 

argument lacks merits for three reasons. First, Owens and Swift, as the State notes in its 

brief, addresses the temporal connection between the taking and the act of violence in 

order for theft to constitute robbery. The State asserts, though, that Owens and Swift did 

not address the timing of the infliction of the bodily injury. Although our supreme court 

did not explicitly address when serious bodily injury must be inflicted in an especially 

aggravated robbery until Henderson, logic necessitates that bodily injury, serious or 

otherwise, cannot be inflicted without an act of violence or the use of force. Without an 

act of violence, serious bodily injury cannot be inflicted, and any robbery offense 

requires that the act of violence precede or be contemporaneous with a taking pursuant to 

Owens and Swift. The relevant distinction between robbery and especially aggravated 

robbery is that the force or act of violence results in serious bodily injury, not when 

serious bodily injury occurred. Therefore, the force or violence resulting in serious 

bodily injury must occur before the completion of the theft. Henderson states this 

principle explicitly and reiterates that the focus is on the temporal relationship between 

the act of violence, which in this case resulted in serious bodily injury, and the 

completion of the taking. Second, Eldridge Hill analyzed Owens and Swift in the context 

of especially aggravated robbery, which was filed before the Petitioner’s trial, and 

reached the same conclusion that our supreme court would later adopt in Henderson. 

Third, at the time of the trial, no conflict in the law existed.

Furthermore the State’s reliance on State v. Mario Merritt, No. W2003-02868-

CCA-R3-CD, 2004 WL 2726030 (Tenn. Crim. App. Nov. 30, 2004), to show that the 

“timing issue” of the serious bodily injury had not been resolved at the time of the 

Petitioner’s trial is misplaced. The defendant in Mario Merritt attempted to leave a retail 

store without paying for various items he had in his possession. When a store employee 

confronted the defendant upon leaving, the defendant displayed a firearm and ordered the 

employee to get back and to get on the floor. A panel of this court upheld the defendant’s 

conviction for aggravated robbery after determining that the act of violence was

contemporaneous with the taking. Id. at *1-4. However, the Mario Merritt opinion was 

filed six years before Swift, which made clear that the act of violence or fear, such as 

displaying a weapon, must occur before the taking is complete. In applying Swift to the 

facts of Mario Merritt, the theft had been completed at the time of the act of violence or 
-22-

fear. In any event, at the time of the Petitioner’s trial, the law was clear that the act of 

violence or fear required for any robbery offense must occur before the taking is 

complete, and the act of violence must precede the infliction of any injury.

We conclude that the record does not support the post-conviction court’s 

determinations and that the Petitioner has established his claim of ineffective assistance 

of counsel. Therefore, the Petitioner is entitled to a limited motion for a new trial, at 

which time counsel is permitted to raise his sufficiency of the evidence claim relative to 

the especially aggravated robbery conviction for the trial court’s consideration. 

II. Aggravated Robbery 

The Petitioner contends that trial counsel provided ineffective assistance by failing 

to argue that the aggravated robbery conviction relative to Ms. Williams should have 

been dismissed. The Petitioner argues that $200 cash, a camcorder, cigarettes, and a 

PlayStation console were taken and that Ms. Williams did not possess the property when 

it was stolen. The State responds that counsel did not provide ineffective assistance 

because Ms. Williams constructively possessed the camcorder and cigarettes by virtue of 

her presence inside the apartment.

The trial evidence reflects that Ms. Williams was a guest inside the apartment. 

The camcorder belonged to Ms. Hines, the owner of the apartment, and the evidence does 

not establish to whom the cigarettes or the PlayStation console belonged. Likewise, the 

evidence did not establish from where the PlayStation console, the camcorder, and the 

cigarettes were taken during the incident. Therefore, the critical inquiry is whether Ms. 

Williams constructively possessed the PlayStation console, the camcorder, and the 

cigarettes based upon her presence inside the apartment.

A “taking from the person may be either actual or constructive. It is actual when 

the taking is immediately from the person and constructive when in the possession of the 

victim or in the victim’s presence.” State v. Miller, 608 S.W.2d 158, 160 (Tenn. 1980). 

“Constructive possession requires that a person knowingly have the power and the 

intention at a given time to exercise dominion and control over an object, either directly 

or through others. In essence, constructive possession is the ability to reduce an object to 

actual possession.” State v. Copeland, 677 S.W.2d 471, 476 (Tenn. Crim. App. 1984). 

“The mere presence of a person in an area where [an object is] discovered is not, alone, 

sufficient to support a finding that the person possessed the object.” State v. Cooper, 736 

S.W.2d 125, 129 (Tenn. Crim. App. 1987).

A robbery can involve the taking of property from the physical body of a person, 

in which a person has actual possession of the property, or from a person’s immediate 

presence or the general area in which the victim is located, in which the person has 

constructive possession of the property. See Jones v. State, 383 S.W.2d 20, 24 (Tenn. 
-23-

1964) (concluding that the theft of items while the victim was restrained in another room 

constituted robbery); Morgan v. State, 415 S.W.2d 879, 881 (Tenn. 1967) (concluding 

that the “fact the goods and money were not taken from the person of the victims is no 

defense” to robbery when the victims were restrained while their house was ransacked); 

State v. Howard, 693 S.W.2d 365, 368 (Tenn. Crim. App. 1985) (citing Jones, 383 

S.W.2d at 20; Miller, 608 S.W.2d at 158); see also State v. Nix, 922 S.W.2d 894, 900 

(Tenn. Crim. App. 1995) (detailing the limitations of the phrase “from the person of 

another” in Tennessee jurisprudence).

This court has concluded that in cases of multiple robbery convictions, “the proper 

unit of prosecution for robbery in Tennessee is the number of takings, i.e. the number of 

thefts,” and that defendants who put multiple victims in fear during the course of one 

theft may be convicted of aggravated assault in addition to the robbery conviction to 

acknowledge each victim. State v. Franklin, 130 S.W.3d 789, 797-98 (Tenn. Crim. App. 

2003); see State v. Michael Lebron Branham, No. E2014-02071-CCA-R3-CD, 2016 WL

106603, at *11 (Tenn. Crim. App. Jan. 8, 2016) (holding that convictions for aggravated 

robbery of a male victim and aggravated assault of a female victim were proper when 

money was only taken from the male victim); see also T.C.A. § 39-13-101, -102 (2018).

The trial evidence reflects that although Ms. Williams was inside the apartment at 

the time of the incident, the evidence does not support a conclusion that Ms. Williams 

had any interest in or right to the items taken from the apartment, and her presence as a 

guest alone cannot establish that she had a greater right to possess the items than the 

Petitioner. See State v. Christopher Shane Harrell, No. E2005-01531-CCA-R3-CD, 

2007 WL 595885, at *2, 11 (Tenn. Crim. App. Feb. 26, 2007) (concluding that the victim 

of an especially aggravated robbery had constructive possession of a truck belonging to 

and being driven by her son because the truck was titled in her and her son’s names); see 

also State v. Joel Christian Parker, No. M2001-00773-CCA-R3-CD, 2002 WL31852850 

at *2-3 (Tenn. Crim. App. Dec. 18, 2002) (concluding that pawn shop employees have a 

possessory interest in the store items taken at gunpoint). Likewise, the lack of trial 

evidence regarding from where the items were taken precludes a conclusion that the 

items were taken from her immediate presence and control.

Although the State asserts that Ms. Williams had a greater property right or 

interest in the camcorder and the cigarettes than the Petitioner, the evidence does not 

show that she had any authority to exercise control over the property, that she had any 

interest or right to the property, and that the property was within her immediate control. 

Ms. Williams was a bystander, and she had no more or less interest in the property than 

the Petitioner. Her mere presence during a home invasion does not create an interest 

superior to the Petitioner or anyone else. As a result, the record does not establish that 

Ms. Williams constructively possessed any of the property taken during the incident.
-24-

Trial counsel testified regarding the aggravated robbery conviction that he 

assumed everyone inside the apartment owned everything inside the apartment, although 

counsel knew Ms. Williams had been a guest at the time of the incident. Counsel thought 

that Ms. Williams had constructive possession of the items taken because she was inside 

the apartment, which is an inaccurate statement of the law. Although the chosen defense 

was mistaken identity, nothing prevented the defense from challenging the sufficiency of 

the convicting evidence as a matter of law after the State had rested its case-in-chief in a 

motion for a judgment of acquittal, after the trial in a motion for a new trial, and on 

appeal, if necessary. Counsel had an obligation to ensure that the State proved beyond a 

reasonable doubt each element of the offense, and counsel’s failure in this regard resulted 

in deficient performance.

As a result, the record does not support the post-conviction court’s determination 

that trial counsel provided the effective assistance of counsel. Based upon the state of the 

law, the Petitioner has shown that counsel’s deficient performance resulted in prejudice 

because a reasonable probability exists that the trial court or this court would have acted 

in the Petitioner’s favor if the sufficiency issue had been raised in the conviction 

proceedings. The Petitioner has established his ineffective assistance claim. Therefore, 

the Petitioner is entitled to a limited motion for a new trial, at which time counsel is 

permitted to raise his sufficiency of the evidence claim relative to the aggravated robbery 

conviction for the trial court’s consideration.

In consideration of the foregoing and the record as a whole, we reverse the 

judgment of the post-conviction court. We remand this case to the trial court for a 

limited motion for a new a trial at which time counsel is permitted to raise the sufficiency 

allegations addressed in this appeal and any additional issues that might arise in 

connection with these limited issues. 

 ____________________________________

 ROBERT H. MONTGOMERY, JR., JUDGE