IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON OCTOBER SESSION, 1998
FILED STATE OF TENNESSEE, ) October 19, 1998 ) No. 02C01-9712-CC-00486 Appellee ) Cecil Crowson, Jr. ) TIPTON COUNTY Appellate C ourt Clerk
vs. ) ) Hon. JOSEPH H. WALKER, Judge TONY FITZ, ) ) (Robbery) Appellant )
For the Appellant: For the Appellee:
Frank Deslauriers John Knox Walkup P. O. Box 1156 Attorney General and Reporter Covington, TN 38019 Clinton J. Morgan Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493
Elizabeth T. Rice District Attorney General
Walt Freeland Asst. District Attorney General 302 Market Street Somerville, TN 38068
OPINION FILED:
AFFIRMED
David G. Hayes Judge OPINION
The appellant, Tony Fitz, appeals, as of right, the verdict of a Tipton County
jury finding him guilty of robbery for which a sentence of seven years and six months
was subsequently imposed. The sole issue raised on appeal is whether the
evidence is sufficient to support the conviction.
After review of the record, we affirm the judgment entered by the trial court.
Background
On November 8, 1996, sometime after 11:00 p.m., Charles Rice, an
employee at the Bull Market convenience store in Munford, was stationed at the
cash register, waiting on customers. The appellant, appearing very nervous,
entered the store, approached Rice, and asked if he would be able to cash a check.
Rice replied that he could if it was a local check and if the appellant had
identification. The appellant then began to write what appeared to be a check.
However, before he could finish, Rice asked the appellant to step to the side to
finish as there were customers waiting in line behind him and he was holding up the
line. Rice proceeded to wait on the next customer. When the register drawer
opened, the appellant jumped up and pushed Rice with both hands in the shoulders
“hit[ting] [him] hard enough to knock [him] back into the wall and the cigarette
counter behind [him].” He then put both of his hands into the cash register and
started “grabbing money out of it.” Rice, who was “stunned” and “scared” by the
appellant’s initial actions, regained his “wits,” ran toward the appellant and pushed
him back. The appellant then “went out the door.”
2 Charles Rice testified that the appellant had taken between forty and fifty
dollars out of the cash register. He also stated that, after the appellant had left, he
discovered the appellant’s wallet on the counter containing various forms of
identification, including the appellant’s parolee identification card and the appellant’s
pay stub from the Munford Gin.
Based upon this proof, the jury found the appellant guilty of robbery.
Analysis
Again, the appellant challenges the sufficiency of the convicting evidence.
Although the appellant concedes that the proof is sufficient to establish theft of
property, 1 he contends that the State failed to prove, beyond a reasonable doubt,
that “violence occurred in the commission of a theft by the Defendant,” elevating the
offense to robbery.2 Specifically, he asserts that “violence constitutes more than
force and the actions of Defendant arise to a level no higher than force.”
The appellant, alluding to our Code’s failure to define the term “violence,”
urges this court to adopt a definition of violence requiring more than “force.” “Force,”
as defined in Tenn. Code Ann. § 39-11-106 (a)(12) (1996), “means compulsion by
the use of physical power or violence and shall be broadly construed to accomplish
the purposes of this title.” (emphasis added). See also BLACK’S LAW DICTIONAR Y
644 (6th ed. 1990) (defining force as “[p]ower, violence, compulsion or constraint
1 A person commits a theft of property if, with intent to deprive the owner of property, the person know ingly obtains o r exercis es con trol over the property w ithout the ow ner’s co nsent. Tenn. Code Ann. § 39-14-103(1990). The difference between robbery and theft is, therefore, the use of v iolence o r fear to ob tain the victim ’s proper ty. Comp are Tenn. Code Ann. § 39-14-103 with Tenn. Code A nn. § 39-13-401 (1990).
2 In the present case, the State conceded at trial that, because the element of “fear” was not included in the indictment, this element should not be instructed to the jury. The record reflects that the trial court did not instruct the jury on the element of “fear.”
3 exerted upon or against a person. . .”). Thus, the question now before this court is
whether the term “force,” as defined in our Code, is sufficient to establish the
element of “violence” necessary to support a conviction for robbery. We hold that it
is.
When asked to interpret a term essential to the overall purpose of penal
legislation, this court’s primary objective is to reconcile legislative intent with the
questioned term. See State v. Smith, 893 S.W.2d 908, 917 (Tenn. 1994), reh’g
denied, (Tenn. 1995), cert. denied, 516 U.S. 829, 116 S.Ct. 99 (1995). In doing so,
we must construe the challenged term according to its fair import, including
reference to judicial decisions and common law interpretations, to promote justice,
and effect the objectives of the criminal code. Tenn. Code Ann. § 39-11-104 (1997).
Moreover, it is a well settled rule of statutory construction that the court should
construe the statute to reconcile different code provisions in order to give them a
consistent meaning. See State v. Banks, 875 S.W.2d 303, 308 (Tenn. Crim. App.
1993).
As codified in our current criminal code, robbery is the intentional or knowing
theft of property from the person of another by violence or by putting the person in
fear. Tenn. Code Ann. § 39-13-401. At common law, robbery was defined as the
taking of goods or money from the person or presence of another by means of force
or intimidation. See 77 C.J.S. Robbery § 2 (1994). The force by means which
robbery may be committed includes all violence inflicted directly on the person
robbed.3 See 67 AM . JUR . 2d Robbery §22 (1985).
With consideration of the common law definition of robbery, we again look to
the current code’s definition of “force,” which contains the provision that this
3 “Violence” is defined as the “[u]njust or unwarranted exercise of force . . .[p]hys ical force unlawfully exercised; abuse of force. . . [and ] [t]he e xertio n of a ny phys ical force so as to injure, damage or abuse.” B L A C K’S L AW D ICTIONAR Y 1570 (6 th ed. 199 0) (em phasis a dded).
4 definition “shall be broadly construed to accomplish the purposes of this title.” Tenn.
Code Ann. § 39-11-106(a)(12) (emphasis added). Additionally, we note that this
court has, on prior occasions, given its approval to the definition of “violence”
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON OCTOBER SESSION, 1998
FILED STATE OF TENNESSEE, ) October 19, 1998 ) No. 02C01-9712-CC-00486 Appellee ) Cecil Crowson, Jr. ) TIPTON COUNTY Appellate C ourt Clerk
vs. ) ) Hon. JOSEPH H. WALKER, Judge TONY FITZ, ) ) (Robbery) Appellant )
For the Appellant: For the Appellee:
Frank Deslauriers John Knox Walkup P. O. Box 1156 Attorney General and Reporter Covington, TN 38019 Clinton J. Morgan Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493
Elizabeth T. Rice District Attorney General
Walt Freeland Asst. District Attorney General 302 Market Street Somerville, TN 38068
OPINION FILED:
AFFIRMED
David G. Hayes Judge OPINION
The appellant, Tony Fitz, appeals, as of right, the verdict of a Tipton County
jury finding him guilty of robbery for which a sentence of seven years and six months
was subsequently imposed. The sole issue raised on appeal is whether the
evidence is sufficient to support the conviction.
After review of the record, we affirm the judgment entered by the trial court.
Background
On November 8, 1996, sometime after 11:00 p.m., Charles Rice, an
employee at the Bull Market convenience store in Munford, was stationed at the
cash register, waiting on customers. The appellant, appearing very nervous,
entered the store, approached Rice, and asked if he would be able to cash a check.
Rice replied that he could if it was a local check and if the appellant had
identification. The appellant then began to write what appeared to be a check.
However, before he could finish, Rice asked the appellant to step to the side to
finish as there were customers waiting in line behind him and he was holding up the
line. Rice proceeded to wait on the next customer. When the register drawer
opened, the appellant jumped up and pushed Rice with both hands in the shoulders
“hit[ting] [him] hard enough to knock [him] back into the wall and the cigarette
counter behind [him].” He then put both of his hands into the cash register and
started “grabbing money out of it.” Rice, who was “stunned” and “scared” by the
appellant’s initial actions, regained his “wits,” ran toward the appellant and pushed
him back. The appellant then “went out the door.”
2 Charles Rice testified that the appellant had taken between forty and fifty
dollars out of the cash register. He also stated that, after the appellant had left, he
discovered the appellant’s wallet on the counter containing various forms of
identification, including the appellant’s parolee identification card and the appellant’s
pay stub from the Munford Gin.
Based upon this proof, the jury found the appellant guilty of robbery.
Analysis
Again, the appellant challenges the sufficiency of the convicting evidence.
Although the appellant concedes that the proof is sufficient to establish theft of
property, 1 he contends that the State failed to prove, beyond a reasonable doubt,
that “violence occurred in the commission of a theft by the Defendant,” elevating the
offense to robbery.2 Specifically, he asserts that “violence constitutes more than
force and the actions of Defendant arise to a level no higher than force.”
The appellant, alluding to our Code’s failure to define the term “violence,”
urges this court to adopt a definition of violence requiring more than “force.” “Force,”
as defined in Tenn. Code Ann. § 39-11-106 (a)(12) (1996), “means compulsion by
the use of physical power or violence and shall be broadly construed to accomplish
the purposes of this title.” (emphasis added). See also BLACK’S LAW DICTIONAR Y
644 (6th ed. 1990) (defining force as “[p]ower, violence, compulsion or constraint
1 A person commits a theft of property if, with intent to deprive the owner of property, the person know ingly obtains o r exercis es con trol over the property w ithout the ow ner’s co nsent. Tenn. Code Ann. § 39-14-103(1990). The difference between robbery and theft is, therefore, the use of v iolence o r fear to ob tain the victim ’s proper ty. Comp are Tenn. Code Ann. § 39-14-103 with Tenn. Code A nn. § 39-13-401 (1990).
2 In the present case, the State conceded at trial that, because the element of “fear” was not included in the indictment, this element should not be instructed to the jury. The record reflects that the trial court did not instruct the jury on the element of “fear.”
3 exerted upon or against a person. . .”). Thus, the question now before this court is
whether the term “force,” as defined in our Code, is sufficient to establish the
element of “violence” necessary to support a conviction for robbery. We hold that it
is.
When asked to interpret a term essential to the overall purpose of penal
legislation, this court’s primary objective is to reconcile legislative intent with the
questioned term. See State v. Smith, 893 S.W.2d 908, 917 (Tenn. 1994), reh’g
denied, (Tenn. 1995), cert. denied, 516 U.S. 829, 116 S.Ct. 99 (1995). In doing so,
we must construe the challenged term according to its fair import, including
reference to judicial decisions and common law interpretations, to promote justice,
and effect the objectives of the criminal code. Tenn. Code Ann. § 39-11-104 (1997).
Moreover, it is a well settled rule of statutory construction that the court should
construe the statute to reconcile different code provisions in order to give them a
consistent meaning. See State v. Banks, 875 S.W.2d 303, 308 (Tenn. Crim. App.
1993).
As codified in our current criminal code, robbery is the intentional or knowing
theft of property from the person of another by violence or by putting the person in
fear. Tenn. Code Ann. § 39-13-401. At common law, robbery was defined as the
taking of goods or money from the person or presence of another by means of force
or intimidation. See 77 C.J.S. Robbery § 2 (1994). The force by means which
robbery may be committed includes all violence inflicted directly on the person
robbed.3 See 67 AM . JUR . 2d Robbery §22 (1985).
With consideration of the common law definition of robbery, we again look to
the current code’s definition of “force,” which contains the provision that this
3 “Violence” is defined as the “[u]njust or unwarranted exercise of force . . .[p]hys ical force unlawfully exercised; abuse of force. . . [and ] [t]he e xertio n of a ny phys ical force so as to injure, damage or abuse.” B L A C K’S L AW D ICTIONAR Y 1570 (6 th ed. 199 0) (em phasis a dded).
4 definition “shall be broadly construed to accomplish the purposes of this title.” Tenn.
Code Ann. § 39-11-106(a)(12) (emphasis added). Additionally, we note that this
court has, on prior occasions, given its approval to the definition of “violence”
provided in Funk and Wagnall’s Standard Desk Dictionary (1977), i.e., “the exertion
of physical force so as to injure or abuse.” State v. Watson, No. 01C01-9606-CC-
00260 (Tenn. Crim. App. at Nashville, Jan. 14, 1998) (citing State v. Black, 745
S.W.2d 302, 304 (Tenn. Crim. App. 1987)). Although the precise terminology may
differ, see 77 C.J.S. ROBBERY § 13 (statutes defining robbery ordinarily include
force and intimidation or some phrase thereof), there is no doubt that by the very
definitions of these words, the guidance provided by the code’s definition of “force,”
and the harm sought to be prevented by making robbery a criminal offense that the
terms “force” and “violence” may be used interchangeably and synonymously. 4
Accordingly, the element of “violence,” as contemplated by Tenn. Code Ann. § 39-
13-401, is satisfied by a showing that the perpetrator exerted some type of physical
force upon the victim.
When there is a challenge to the verdict based upon the sufficiency of the
evidence, this court must review the evidence in the light most favorable to the
prosecution and determine whether "any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia,
443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253,
259 (Tenn. 1994), cert. denied, 513 U.S. 1086, 115 S.Ct. 743 (1995); Tenn. R. App.
P. 13(e). We do not reweigh or reevaluate the evidence; these are issues resolved
by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
4 See, e.g., Doug las v. State , 267 A.2d 291, 294 (Md. C t. Spec. A pp. 1970 ), cert. denied, (Md. 19 70) (violen ce is by the a pplication o f physical fo rce); King v. Sta te, 527 So.2d 641, 646 (Miss. 1 988) (“viole nce is syn onym ous with fo rce”); State v. Fuentes, 888 P.2d 986, 990 (N.M. App. 19 94), cert. denied, 889 P.2d 203 (N .M. 199 5); Sm ith v. State , 737 P.2d 1206, 1215 (Okla. Crim . App.), cert. denied, 484 U.S. 959, 108 S.Ct. 358 (1987) (“force” is actually used to define “violence ”); Comm onwealth v. Mlinarich, 498 A.2d 395, 400 (Pa. Sup er. 1985 ), aff ’d, 542 A.2d 1335 (Pa. 1988) ( per curium) (force a nd violenc e synonym ous); W isdom v. State , 708 S.W.2d 840, 843 n.3 (Tex. Crim . App. 1986) (en banc) (violence and forc e are syno nymo us); City of Pasco v. Ross, 694 P.2d 37, 39 (W ash. App. Div. 3 1985) (sam e).
5 Furthermore, a guilty verdict accredits the testimony of the witnesses for the State,
and a presumption of guilt replaces the presumption of innocence. State v. Grace,
493 S.W.2d 474, 476 (Tenn. 1973). The appellant bears the burden of proving that
the evidence is insufficient to support the jury verdict in his case. State v. Tuggle,
639 S.W.2d 913, 914 (Tenn. 1992). In the present case, the cashier testified that
the appellant physically struck him upon the shoulders and pushed him into a
cigarette display. These actions undeniably permitted the appellant to “grab” money
out of the open cash register. We find these facts sufficient to establish the element
of “violence.” Accordingly, this issue is without merit.
The judgment of the trial court is affirmed.
____________________________________ DAVID G. HAYES, Judge
CONCUR:
______________________________________ JOHN H. PEAY, Judge
______________________________________ L. T. LAFFERTY, Special Judge