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State v. Atkins11/10/1999
The defendant, Ricky Atkins, entered guilty pleas to two counts of theft of property less than $500.00. In a trial by jury, he was convicted of aggravated assault. The trial court imposed a Range II sentence of ten years for aggravated assault and sentences of eleven months and twenty-nine days on each of the theft convictions. All sentences are to be concurrently served. Fines totaled $5,000.00.
In this appeal of right, the defendant challenges the sufficiency of the evidence and claims that the sentence is excessive. We find no error and affirm the judgment of the trial court.
On May 29, 1998, Scottie Shelton, a sales clerk at the AJ Texaco Smokestack on Andrew Johnson Highway in Hamblen County, was on duty when the defendant and Joey France entered the store. As France asked several questions, Shelton observed the defendant "running out of the store with cartons of cigarettes." Shelton described the cigarette containers as "like suitcases" (sixteen cartons in all) on special "buy three, get one free...." At trial, Shelton testified that he followed the defendant around a corner of the building until the defendant, who displayed a knife with his left hand, threatened to kill him if he did not "back off." Shelton did as directed, walked back around the corner, and picked up an outside phone to call 911. As he did so, he asked a customer to tell the other sales clerk on duty to call the police. After making the 911 call, Shelton followed the defendant through a parking lot behind the store and over an embankment. He saw the defendant throw the cigarette containers across a fence and climb over the fence. At that point, the defendant looked back at Shelton and said, "If you want them, you can come and get them...." Instead of following the defendant, Shelton returned to the store.
On cross-examination, Shelton estimated that the defendant was between ten and twenty feet away when the threat was made. He testified that he saw the blade of the knife. Shelton stated the defendant paused to confront him for approximately fifteen seconds before continuing with his departure from the scene.
Kay Bray, the general manager of the Smokestack, testified that she maintained twenty-four hours per day videotape cameras inside the store. She introduced as evidence a portion of the videotape of May 29, 1998, which corroborated the defendant's presence in the store. She estimated that the value of the stolen sixteen cartoons was $248.07.
Barbara Hopkins, the mother of the defendant, testified as a witness for the defense. She stated that the defendant was right- handed. The defendant, who acknowledged in the aggravated assault trial that he had entered guilty pleas to the theft of the cigarettes, denied that he had a knife in his hand. He testified that he did not threaten to kill Shelton and had no intention of harming him. The defendant explained that he had a silver ring on his left hand. He also denied saying to Shelton after he had crossed a fence, "If you want these cigarettes, come and get them."
Initially, the defendant contends that the evidence is insufficient. He specifically argues that the state failed to establish that the victim was caused "to reasonably fear imminent bodily injury." Tenn. Code Ann. § 39-13-101(a)(2). He contends that the assault only becomes aggravated if there is definitive proof that the defendant "uses or displays a deadly weapon." Tenn. Code Ann. § 39-13-102(a)(1)(B).
On appeal, the state is entitled to the strongest legitimate view of the evidence and all inferences which might be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 836 (Tenn. 1978). The credibility of the witnesses, the weight to
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