State v. Owens

• Decision Date: 20 June 2000
• Docket Number: 97-00237
• Citation: 20 S.W.3d 634
• Parties: STATE OF TENNESSEE v. DAVID L. OWENSIN THE SUPREME COURT OF TENNESSEE AT JACKSON
• Court: Tennessee Supreme Court

STATE OF TENNESSEE v DAVID L. OWENS

No. W1997-00237-SC-R11-CD

IN THE SUPREME COURT OF TENNESSEE AT JACKSON

Decided June 20, 2000

Appeal from the Criminal Court for Shelby County No. 96-04584

Joseph B. Dailey, Judge

FOR PUBLICATION

David L. Owens, the defendant, entered a Dollar General Store, grabbed an article of clothing, and left without making payment. Owens was chased for several blocks by two store employees. When one employee closed in, Owens dropped the clothes, turned toward the employee, and brandished a box cutter. Owens then walked away, but he was subsequently apprehended and charged. He was convicted of robbery and sentenced to nine years in the Department of Correction. His conviction was affirmed by the Court of Criminal Appeals. In this Court, Owens contends that the robbery conviction is not, as a matter of law, sustainable under Tenn. Code Ann. § 39-13-401 because the violence occurred at the end of the chase--not at the time of the taking. We accepted review, therefore, to determine the temporal relationship between the taking and the use of violence (fear) as they together constitute the offense of robbery as defined in Tenn. Code Ann. § 39-13-401. We hold that the use of violence (fear) must precede or be concomitant or contemporaneous with the taking to constitute robbery under Tenn. Code Ann. § 39-13-401. Applying this rule to the facts of this case, we hold that the evidence is insufficient to support Owens's robbery conviction. There is ample evidence, however, to support a conviction of theft under Tenn. Code Ann. § 39-14-103. Thus, we vacate the robbery conviction and modify the defendant's conviction to theft as defined in Tenn. Code Ann. § 39-14-103; we remand the cause to the trial court for sentencing as appropriate.

Tenn. R. App. P. 11 Appeal by Permission from the Appellate Court to the Supreme Court; Judgment of the Trial Court Reversed and Modified; Remanded for Resentencing

Robert M. Brannon, Jr., Memphis, Tennessee, for the appellant, David L. Owens.

Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Erik W. Daab, Assistant Attorney General, for the appellee, State of Tennessee.

Birch, J., delivered the opinion of the court, in which Anderson, C.J., and Drowota and Holder, JJ., joined. Barker, J., not participating.

OPINION

On January 22, 1996, David L. Owens, the defendant, entered a Dollar General Store, grabbed an article of clothing, and left without making payment. Owens was chased for several blocks by a supervisor and a security guard. When the supervisor closed in, Owens dropped the article of clothing, turned toward the supervisor, brandished a box cutter, and then walked away. He was later apprehended by the security guard and taken into custody. He was subsequently indicted and tried upon a charge of robbery.¹

Owens was convicted as charged, and the trial judge imposed a sentence of nine years to the Department of Correction. Owens appealed, contending, inter alia, that the evidence adduced at trial was insufficient to sustain a robbery conviction. Finding the evidence sufficient to support the conviction, the Court of Criminal Appeals affirmed the conviction.

We accepted review of this case in order to determine the temporal relationship required between the taking and the act of violence or putting a person in fear as they together constitute the offense of robbery defined in Tenn. Code Ann. § 39-13-401. This is an issue we address for the first time.

After an exhaustive review of the relevant authorities, we adopt the common law rule and hold that the act of violence or of putting a person in fear must precede or be concomitant to or contemporaneous with the taking of property to constitute robbery under Tenn. Code Ann. § 39-13-401. Applying this rule to the facts of this case, we find that there is insufficient evidence to support the robbery conviction. We find, however, ample evidence to support a conviction of theft under Tenn. Code Ann. § 39-14-103. Thus, in reversing Owens's conviction for robbery we modify the trial court's judgment to show a conviction for theft and remand the case to the trial court for resentencing.

II

Only a brief recitation of the facts is necessary. An employee of Dollar General Store saw Owens take an article of clothing from the store without paying. She alerted A. C. Simmons, the Dollar General Store security guard, and Derrick Mims, a store supervisor. Both Simmons and Mims gave chase on foot. They chased Owens for about a block. At this point, Simmons returned to the store to get his car; Mims continued the pursuit on foot. After several blocks, Owens stopped, dropped the article of clothing, turned towards Mims, and brandished a box cutter. Owens then walked away, leaving the clothing where it lay. Simmons, who had retrieved his car, returned to the pursuit and apprehended Owens.

A jury convicted Owens of robbery, and the trial judge sentenced him to nine years to the Department of Correction. On appeal to the Court of Criminal Appeals, he contended that the evidence at trial was insufficient to support his conviction. Finding his contention unsupportable, the intermediate appellate court upheld Owens's conviction.

Here, Owens contends that his confrontation with Mims occurred after the taking had occurred; thus, the taking had not been accomplished by violence or fear. He insists, therefore, that this conduct does not constitute robbery under Tenn. Code Ann. § 39-13-401. The State, on the other hand, contends that the act of theft continues for as long as the thief exercises control over the property. The State insists, therefore, that Owens was properly convicted of robbery under Tenn. Code Ann. § 39-13-401 because he used violence or fear while exercising control over the clothing he took from Dollar General Store.

III

As stated, robbery requires a taking of property by violence or by putting the person in fear. Our first question is how closely connected in time must the taking and the violence be? Because this question is one of law, our review is de novo, without a presumption of correctness as to the lower court's conclusions of law. See Myint v. Allstate Ins. Co., 970 S.W.2d 920, 924 (Tenn. 1998); see also Comdata Network, Inc. v. Tennessee Dept. of Rev., 852 S.W.2d 223, 224 (Tenn. 1993).

In Tennessee, a "[r]obbery is the intentional or knowing theft of property from the person of another by violence or putting the person in fear." Tenn. Code Ann. § 39-13-401 (1997). "A person commits a theft of property if, with the intent to deprive the owner of property, the person knowingly obtains or exercises control over the property without the owner's effective consent." Tenn. Code Ann. § 39-14-103 (1997). The element which distinguishes theft from robbery is the use of violence or fear. If an individual uses violence or puts another in fear to obtain or exercise control over another's property, he or she has committed a robbery. Therefore, whether a taking is properly characterized as a theft or a robbery is contingent upon whether and when violence or fear is imposed. State v. Holley, 604 A.2d 772, 775 n.2 (R.I. 1992).

For common law robbery,² the force³ used in the taking of property must "precede or be concomitant or contemporaneous with the taking. Violence or intimidation by the thief subsequent to the taking will not render the act robbery." State v. Aldershof, 220 Kan. 798, 800-01, 556 P.2d 371, 373 (1976) (emphasis in original).⁴ The theft of property, therefore, must be the result of the force or fear or must have been facilitated or made less difficult by the violence. See Register v. State, 232 Miss. 128, 131-33, 97 So.2d 919, 921-22 (1957) (citations omitted). Force used to retain property already unforcibly taken or force used to escape, however, is not the force essential to satisfy the element of force required for robbery. Holley, 604 A.2d at 774. Thus, "'subsequent violence or putting in fear will not make a precedent taking, effected clandestinely, or without either violence or putting in fear, amount to robbery.'" Register, 232 Miss. at 132, 97 So.2d at 922 (citation omitted). Several jurisdictions currently adhere to the common law rule.⁵ Moreover, a number of these jurisdictions have statutes similar to our own.⁶

Many jurisdictions, however, have rejected the common law rule in favor of the "continuous offense theory."⁷ These jurisdictions interpret robbery as a continuous offense "that is not complete until the perpetrator reaches a place of temporary safety." Ball, 347 Md. at 185, 699 A.2d at 1184. Under this theory, "a robbery is committed, not only if the perpetrator uses force or intimidation to 'take' possession of the property, but also if force or intimidation is used to retain possession immediately after the taking, or to carry away the property, or to facilitate escape." Myers, 620 So.2d at 1163 (citing 4 Charles E. Torcia, Wharton's Criminal Law § 478 (14th ed. 1981)).

Although a majority of jurisdictions have adopted the continuous offense theory, an overwhelming majority have done so with the help of statutes which specifically define robbery to include the use of force to retain property or to escape.⁸ For example, under many of these statutory provisions a person commits a robbery if he or she uses force "in the course of committing" a theft. Ky. Rev. Stat. Ann. § 515.030 (Michie 1999).⁹ Force is used in the course of committing a theft "if it occurs in an attempt to commit theft or in flight after the attempt or commission." Pa. Cons. Stat. Ann. § 3701 (West 1983) (emphasis added).¹⁰ Other statutory provisions define robbery to include the use of force or fear "either to obtain or retain possession of the property or to prevent or overcome resistance to the taking"¹¹ or to "assist . . . the [perpetrator's] escape. . . ." Iowa Code Ann. § 711.1 (West 1993).¹²

To determine whether we should adopt the common law...