State of Tennessee v. Kevin Swift ( 2008 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs March 4, 2008
STATE OF TENNESSEE v. KEVIN SWIFT
Appeal from the Criminal Court for Shelby County
No. 05-07079 James M. Lammey, Jr., Judge
No. W2007-00673-CCA-R3-CD - Filed September 4, 2008
In October 2005, the Shelby County Grand Jury indicted the defendant, Kevin Swift, on two counts
of aggravated robbery, a Class B felony. Following a jury trial in Shelby County Criminal Court,
the defendant was convicted on both counts of the indictment; however, upon stipulation of the
parties one of the defendant’s convictions was reduced to the lesser included offense of aggravated
assault, a Class C felony. The trial court sentenced the defendant to eleven years as a Range I,
standard offender on the aggravated robbery conviction and nine years as a Range II, multiple
offender on the aggravated assault conviction. The trial court ordered these sentences to be served
consecutively. The defendant appeals, asserting that: (1) the evidence produced at trial was
insufficient to support his aggravated robbery conviction; (2) the sentences imposed for both
sentences were excessive in that they were enhanced based on factors not found by the jury beyond
a reasonable doubt; and (3) the trial court improperly imposed consecutive sentences. After
reviewing the record, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which THOMAS T. WOODALL and
NORMA MCGEE OGLE , JJ., joined.
Robert Wilson Jones, District Public Defender; Garland Ergüden (on appeal) and William Robilio
(at trial), Assistant District Public Defenders, for the appellant, Kevin Swift.
Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;
William L. Gibbons, District Attorney General; Stacy M. McEndree, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
At trial, Todd Czyrnik testified that on May 27, 2004, he was employed as a supervisor in
the home theater department at a Best Buy store in Memphis. While at work that day, he was
standing in the store’s DVD section when he saw a man in the television section, approximately
twenty-five feet from where he was standing, stealing some Sony PlayStation games. Specifically,
Czyrnik saw the man, whom he identified as the defendant, “stick his hands with [the games] on top
of the shelves” on which the television sets were placed. According to Czyrnik, the shelves were
“a good 4 feet up in the air.” Czyrnik then saw the man “stick his hands behind the TVs. . . . [O]nce
he realized I was watching him, he took his hands very quickly and stuck them down in his pants.”
After Czyrnik observed this activity, he assisted another customer, but he continued to watch the
defendant. After Czyrnik finished assisting the other customer, he went to the television section,
where he saw two empty PlayStation game cases on a shelf. Czyrnik said that the games were
valued at $19.99 each, and that the store did not recover the games following the incident.
After Czyrnik found the empty game cases, he went to the store’s loss prevention desk, which
was located at the front of the store, near the exit. Czyrnik told the loss prevention worker, Curtis
Odom, that a man had stolen two PlayStation games. At that point, the defendant walked toward
the desk. Czyrnik explained that the store’s policy when dealing with a potential shoplifter was to
approach the person without making a scene and ask the person to step into an office to fill out some
paperwork. Czyrnik said that Odom attempted to speak to the defendant, but the defendant threw
a punch at Odom, which missed. Odom and Czyrnik then attempted to grab the defendant, and the
defendant again threw a punch, this time at Czyrnik. This punch also missed. Czyrnik said that the
two employees cornered the defendant in the lobby outside the store’s exit doors, but Czyrnik
observed a knife in the defendant’s hand, and the two employees backed off. Czyrnik said that he
observed the defendant reaching at his pants when he initially approached the two employees at the
loss prevention desk, so he presumed that the defendant was reaching for the knife at that point. He
also said that seeing the defendant with a knife put him in fear of his safety.
Czyrnik testified that the police showed him a photograph array shortly after the incident,
but he could not identify the defendant in the array because “a lot of them honestly in my opinion
looked the same.” However, he was able to positively identify the defendant as the perpetrator at
the preliminary hearing in general sessions court, when eight or nine other men were also present
in the courtroom. Czyrnik said that he was positive that the defendant was the perpetrator based on
the defendant’s “[d]emeanor, build, facial expressions, same facial expressions that he’s giving now
that he gave me earlier or when I saw him a couple of years ago.”
On cross-examination, Czyrnik said that he did not see a knife in the defendant’s hands when
the defendant was in the television section. He also said that after the defendant left the store, he and
Czyrnik followed the defendant into the parking lot in an attempt to find out where he was going or
get a license plate number. Czyrnik said that the defendant did not attempt to take any other item
from the store. On redirect, Czyrnik said that the defendant jumped into a gray Ford Taurus and
backed out of the store’s parking lot so that he and Odom were unable to obtain the car’s license
plate number.
Sergeant James Currin with the Memphis Police Department testified that he was the lead
investigator in this case. As part of the investigation, he acquired the store’s surveillance video from
the day of the incident. He also prepared a photograph array, which he showed to Odom on
September 2, 2004. Sergeant Currin said that Odom identified the defendant’s photograph in the
array, saying that the defendant was the person who had robbed the store.
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Curtis Odom testified that he was the loss prevention specialist on duty at the Best Buy store
on May 27, 2004. Odom said that part of his duties at the store involved working at a desk at the
front of the store, near the exit, where he monitored the video feed from the store’s surveillance
cameras. Odom said that he could control each camera, allowing him to “zoom in or zoom out and
put particular cameras in particular places where I need[ed] them to be.” Odom said that when
Czyrnik informed him about the defendant’s activities, Odom placed a camera on the defendant.
Odom said that initially, he could only see the defendant from the neck down, but he was later able
to view the defendant when he moved to a different location.
Odom testified that after a while, the defendant approached the loss prevention desk as he
was attempting to exit the store. Odom said that when presented with a potential shoplifting
situation, he approached the person and said that he “just want[ed] to talk with them. If they have
any merchandise that will be the place that they would either give it to me or I could take them into
my office and they could give it to me then.” Odom said that he spoke to the defendant, who then
started to run toward the exit door. Odom said that he attempted to put his hands on the defendant,
but the defendant “took an overhand swing” at Odom. Odom said that the defendant took another
swing at him, at which point Odom noticed that the defendant had a knife in his hand. Odom then
told Czyrnik to step back, which they did. Odom said that he was placed in fear when he saw the
knife. After the two employees stepped back, the defendant ran into the parking lot and entered a
brown or light gray Ford Taurus. Odom said that the Taurus backed completely through the parking
lot, which Odom said was larger than a football field, and he was unable to observe the car’s license
plate.
Odom testified that he identified the defendant’s photograph in an array the police showed
him after the incident, and he also identified the defendant as the perpetrator at the preliminary
hearing. The state also played the surveillance video taken from the store that day, with Odom
describing the events as depicted on the video.
On cross-examination, Odom testified that he did not observe the defendant with any
merchandise. He said that the store’s policy was to contact the police after retrieving merchandise
from a shoplifter. Odom said that when he approached the defendant as he was leaving the store,
he asked the defendant if he could come to the office so that he (Odom) could speak to the defendant.
Odom said that he did not identify himself as a Best Buy employee or indicate his position with the
store. Odom also admitted that he did not tell the defendant why he was being asked to go to the
office. On redirect, Odom said that both he and Czyrnik were wearing polo shirts embroidered with
the Best Buy logo at the time of the incident. Odom also said he was wearing a name tag, which
listed Odom’s name and identified him as a loss prevention specialist.
The state’s last witness was Pearl Davis, the defendant’s girlfriend. She testified that on May
27, 2004, she owned a gray Ford Taurus. The defendant did not testify or present witnesses on his
behalf.
At the conclusion of the trial, the defendant was convicted on two counts of aggravated
robbery, as had been charged in the indictment. Upon agreement of the parties, and pursuant to this
court’s opinion in State v. Franklin, 130 S.W.3d 789, 798 (Tenn. Crim. App. 2003), the trial court
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modified one of the aggravated robbery convictions to an aggravated assault conviction. Following
a subsequent sentencing hearing, the defendant received an effective sentence of twenty years in the
Department of Correction. This appeal followed.
ANALYSIS
I: Sufficiency of Evidence
The defendant argues that the evidence produced at trial was insufficient to support his
conviction for aggravated robbery. Specifically, the defendant contends that pursuant to the
Tennessee Supreme Court’s holding in State v. Owens, 20 S.W.3d 634, 641 (Tenn. 2000), in order
to sustain an aggravated robbery conviction, the state was required to establish beyond a reasonable
doubt that the use of violence or placing another in fear occurred contemporaneously with the taking.
The defendant asserts that because these two events did not occur contemporaneously, the defendant
could not have been found guilty of aggravated robbery. We disagree.
An appellate court’s standard of review when the defendant questions the sufficiency of the
evidence on appeal is “whether, after viewing the evidence in the light most favorable to the
prosecution, 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) (emphasis
in original). The appellate court does not reweigh the evidence; rather, it presumes that the jury has
resolved all conflicts in the testimony and drawn all reasonable inferences from the evidence in favor
of the state. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness credibility, conflicts in testimony, and
the weight and value to be given to evidence were resolved by the jury. See State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997). A guilty verdict removes the presumption of innocence and replaces
it with a presumption of guilt, and on appeal the defendant has the burden of illustrating why the
evidence is insufficient to support the jury’s verdict. Id.; State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). This standard applies to findings of guilt based upon direct evidence, circumstantial
evidence, or a combination of both direct and circumstantial evidence. State v. Pendergrass, 13
S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).
The defendant was convicted of aggravated robbery. Aggravated robbery is “[a]ccomplished
with a deadly weapon or by display of any article used or fashioned to lead the victim to reasonably
believe it to be a deadly weapon; or . . . [w]here the victim suffers serious bodily injury.” Tenn.
Code Ann. § 39-13-402(a)(1)-(2) (2003). 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. § 39-13-401(a)
(2003). “A person commits theft of property if, with intent to deprive the owner of property, the
person knowingly obtains or exercises control over the property without the owner’s effective
consent.” Id. § 39-14-103. Our supreme court has held that to sustain a robbery conviction, “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” Owens, 20 S.W.3d at 637.
The defendant, basing his argument upon our supreme court’s opinion in Owens, asserts that
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his aggravated robbery conviction must be overturned because his placing the two store employees
in fear was not contemporaneous with his taking of the computer games. However, the facts of this
case can be distinguished from those of Owens. In Owens, the defendant grabbed an article of
clothing and fled the store without paying for the merchandise. Id. at 637. Two store employees
chased the defendant several blocks before the defendant dropped the merchandise and brandished
a box cutter at the employees. Id. The defendant was later convicted of robbery, but the Tennessee
Supreme Court reversed, concluding that “[t]his evidence [was] not sufficient to establish violence
or fear preceding or contemporaneous with the taking of property. Indeed . . . the use of violence
or fear was subsequent to the taking and temporally remote.” Id. at 641.
The facts of this case are similar to one considered by this court in which we concluded that
the defendant’s use of violence was contemporaneous with his taking of property. In State v. Mario
Merritt, No. W2003-02868-CCA-R3-CD, 2004 WL 2726030, at *1 (Tenn. Crim. App. Nov. 30,
2004), app. denied (Tenn. Feb. 28, 2005), the defendant and two other persons were observed taking
several items of clothing from a Memphis department store. As the defendant walked past the
store’s cash registers and toward the store’s exit, he was confronted by a loss prevention employee.
Id. The defendant then pointed a gun at the employee and ordered him to get onto the ground. Id.
The employee refused, and an altercation ensued. Id. A second employee arrived, and the defendant
shot this employee before leaving the store. Id. This court affirmed the defendant’s conviction,
concluding that the facts of Owens were “clearly distinguishable from the [facts of Mario Merritt]
in which the violence was contemporaneous with the taking of the clothing.” Id. at *4. Similarly,
the defendant’s placing the Best Buy employees in fear was concomitant or contemporaneous to the
taking of the store’s merchandise, which occurred as he attempted to leave the store with the
merchandise. Accordingly, we affirm the defendant’s aggravated robbery conviction and deny him
relief on this issue.
II: Sentencing
The defendant next contends that the trial court imposed an excessive sentence. The basis
of the defendant’s assertion is twofold. The defendant argues that the trial court erred by enhancing
his sentence based on an enhancement factor that was not found by the jury beyond a reasonable
doubt, and he also argues that the trial court erred in imposing consecutive sentences. After
reviewing the record, we affirm the length and manner of sentence imposed by the trial court.
Length of Sentence/Enhancement Factors
At the defendant’s sentencing hearing, the trial court found the following enhancement
factors applicable to the defendant’s convictions:
(2) The defendant has a previous history of criminal convictions or criminal behavior,
in addition to those necessary to establish the appropriate range;
(9) The defendant has a previous history of unwillingness to comply with the
conditions of a sentence involving release in the community; and
(21) The defendant was adjudicated to have committed a delinquent act or acts as a
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juvenile that would constitute a felony if committed by an adult.
Tenn. Code Ann. § 40-35-114(2), (9), (21) (2003). Based on these enhancement factors and an
absence of mitigating factors, the court sentenced the defendant to eleven years as a Range I,
standard offender for his aggravated robbery conviction1 and nine years as a Range II, multiple
offender for his aggravated assault conviction.2
An appellate court’s review of sentencing is de novo on the record with a presumption that
the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d) (2003).3 As the
Sentencing Commission Comments to this section note, on appeal the burden is on the defendant
to show that the sentence is improper. This means that if the trial court followed the statutory
sentencing procedure, made findings of fact that are adequately supported in the record, and gave
due consideration and proper weight to the factors and principles that are relevant to sentencing
under the 1989 Sentencing Act, the court may not disturb the sentence even if a different result were
preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
However, “the presumption of correctness which accompanies the trial court’s action is
conditioned upon the affirmative showing in the record that the trial court considered the sentencing
principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991). In this respect, for the purpose of meaningful appellate review,
[T]he trial court must place on the record its reasons for arriving at the final
sentencing decision, identify the mitigating and enhancement factors found, state the
specific facts supporting each enhancement factor found, and articulate how the
mitigating and enhancement factors have been evaluated and balanced in determining
the sentence. Tenn. Code Ann. § 40-35-210(f) (1990).
State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994).
Under the law as it existed before the 2005 amendment, unless enhancement factors were
present, the presumptive sentence to be imposed was the minimum in the range for a Class B, C, D,
or E felony. Tenn. Code Ann. § 40-35-210(c) (2003). Tennessee’s pre-2005 sentencing act provided
that, procedurally, the trial court was to increase the sentence within the range based on the existence
1
The sentence range for a defendant convicted of a Class B felony as a Range I offender is eight to twelve
years. Tenn. Code Ann. § 40-35-112(a)(2) (2003).
2
The sentence range for a defendant convicted of a Class C felony as a Range II offender is six to ten years.
Id. § (b)(3).
3
W e note that on June 7, 2005, the General Assembly amended Tennessee Code Annotated sections 40-35-
102(6), -114, -210, -401. See 2005 T enn. Pub. Acts ch. 353, §§ 1, 5, 6, 8. However, the amended code sections are
inapplicable to the defendant’s appeal because the defendant’s offense occurred prior to the enactment of the revised
sentencing act and the defendant elected to be sentenced pursuant to the sentencing act as it existed at the time of his
offense.
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of enhancement factors and, then, reduce the sentence as appropriate for any mitigating factors. Id.
at (d), (e). The weight to be afforded an existing factor was left to the trial court’s discretion so long
as it complied with the purposes and principles of the 1989 Sentencing Act and the court’s findings
were adequately supported by the record. Id. § 40-35-210 (2003), Sentencing Commission
Comments; State v. Moss, 727 S.W.2d 229, 237 (Tenn. 1986); see Ashby, 823 S.W.2d at 169.
While the court can weigh the enhancement factors as it chooses, the court may only apply
the factors if they are “appropriate for the offense” and “not themselves essential elements of the
offense.” Tenn. Code Ann. § 40-35-114 (2003). Our supreme court has stated that “[t]he purpose
of the limitations is to avoid enhancing the length of sentences based on factors the Legislature took
into consideration when establishing the range of punishment for the offense.” State v. Poole, 945
S.W.2d 93, 98 (Tenn. 1997).
In conducting its de novo review, the appellate court must consider (1) the evidence, if any,
received at the trial and sentencing hearing, (2) the presentence report, (3) the principles of
sentencing and arguments as to sentencing alternatives, (4) the nature and characteristics of the
criminal conduct, (5) any mitigating or statutory enhancement factors, (6) any statement that the
defendant made on his own behalf, and (7) the potential for rehabilitation or treatment. Tenn. Code
Ann. §§ 40-35-102, -103, -210 (2006); see Ashby, 823 S.W.2d at 168; Moss, 727 S.W.2d at 236-37.
On appeal, the defendant concedes that the trial court properly applied the enhancement
factors identified in Tennessee Code Annotated section 40-35-114(2) and (21). However, the
defendant argues that the trial court’s application of enhancement factor (9), “unwillingness to
comply with the conditions of a sentence involving release in the community,” violated his Sixth
Amendment rights. The defendant correctly notes that in 2007, our supreme court held that “to the
extent the [former sentencing act] permitted enhancement based on judicially determined facts other
than the fact of a prior conviction, it violated the Sixth Amendment as interpreted by the Supreme
Court.” State v. Gomez, 239 S.W.3d 733, 740 (Tenn. 2007) (“Gomez II”) (citations omitted).
However, the Supreme Court has held that the defendant’s Sixth Amendment right to a jury trial
is not offended when the defendant’s sentence is enhanced based on facts admitted by the defendant.
See Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 2537 (2004) (“Our precedents make
clear . . . that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may
impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”)
(citation omitted; emphasis in original); Cunningham v. California, 549 U.S. 270, 127 S. Ct. 856,
860 (2007). At the sentencing hearing, the defendant admitted to being arrested for and pleading
guilty to theft while on bond for this offense, and the defendant also admitted to a prior probation
revocation. Thus, while the trial court’s application of enhancement factor (9) would normally
violate the Sixth Amendment as interpreted by the United States and Tennessee Supreme Courts,
the defendant’s admitting to the facts upon which this enhancement factor was based rendered the
trial court’s application of the enhancement factor constitutionally permissible. We accordingly
deny the defendant relief on this issue.
Consecutive Sentencing
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Consecutive sentencing is guided by Tennessee Code Annotated section 40-35-115(b), which
states in pertinent part that the trial court may cause multiple sentences to run consecutively if it
finds by a preponderance of the evidence that the defendant “is a professional criminal who has
knowingly devoted such defendant’s life to criminal acts as a major source of his livelihood” or “is
an offender whose record of criminal activity is extensive.” Tenn. Code Ann. § 40-35-115(1)-(2)
(2003). The trial court is required to “specifically recite the reasons” behind imposition of a
consecutive sentence. See Tenn. R. Crim. P. 32(c)(1); see, e.g., State v. Palmer, 10 S.W.3d 638,
647-48 (Tenn. Crim. App. 1999) (noting the requirements of Rule 32(c)(1) for purposes of
consecutive sentencing).
In imposing consecutive sentences, the trial court found that both the “professional criminal”
and “extensive criminal history” factors applied. Regarding the professional criminal factor, the
record reflects that in addition to this offense, which resulted from the defendant’s stealing two
computer games, the defendant has six theft convictions, with one being felony theft between $1000
and $10,000 and the rest being misdemeanor theft of less than $500. This offense and five of the
theft offenses occurred during periods when the defendant was not employed; the presentence report
notes that the defendant claimed he was employed between January 2000 and December 2002 at
American Seafood, but this employment was unverified. The defendant was also employed as a
temporary laborer from September 18 through December 31, 2003, and again between March 10 and
October 29, 2005. These periods of employment were verified. The trial court cited this limited
employment activity in finding that the professional criminal factor applied.
On appeal, the defendant argues that the trial court erred in imposing consecutive sentences
based on the professional criminal factor. However, we need not reach the merits of this issue, as
the statutory consecutive sentencing factors are listed in the alternative, and therefore only one factor
need exist to support the trial court’s imposition of consecutive sentences. In this case, the trial court
also found that consecutive sentences were appropriate based on the defendant’s extensive criminal
history. As the defendant notes in his brief, the presentence report reveals that the defendant has six
previous felony convictions for offenses such as theft, evading arrest, vandalism, reckless
endangerment, and possession of narcotics with intent to sell or manufacture. The defendant also
has over twenty misdemeanor convictions, including ten driving offenses and five theft convictions.
Given this record, which spans the entirety of the defendant’s adult life, we conclude that the trial
court properly imposed consecutive sentences in this case. The defendant is denied relief on this
issue.
CONCLUSION
In consideration of the foregoing and the record as a whole, the judgments of the trial court
are affirmed.
_______________________________
D. KELLY THOMAS, JR., JUDGE
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