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State v. Bush4/14/2004
son v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). We do not reweigh the evidence but presume 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 about witness credibility were resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).
Especially aggravated robbery is defined as robbery that is "(1) ccomplished with a deadly weapon; and (2) here the victim suffers serious bodily injury." T.C.A. § 39-13-403(a). Robbery is "the intentional or knowing theft of property from the person of another by violence or putting the person in fear." T.C.A. § 39-13-401. A person is guilty of theft if that person, with the intent to deprive the owner of property, knowingly obtains or exercises control over the property without the owner's effective consent. T.C.A. § 39-14-103. "Serious bodily injury" is defined as "bodily injury which involves: (A) A substantial risk of death; (B) Protracted unconsciousness; (C) Extreme physical pain; (D) Protracted or obvious disfigurement; or (E) Protracted loss or substantial impairment of a function of a bodily member, organ or mental faculty." T.C.A. § 39-11-106(a)(34).
The defendant claims that the evidence is insufficient to support his especially aggravated robbery conviction because the state failed to prove a "taking" occurred in this case. Specifically, he contends that a taking was not established because the evidence did not show that the intruders removed any property from Mr. Lopez's person or presence or that Mr. Lopez owned the property. In support of his claim, he notes that although a stereo and CD were taken from another bedroom, this bedroom was occupied by other family members and no proof established "whatsoever that property taken from other family members' separate living quarters constituted property of Pascual Lopez, thereby giving him some type of constructive possession of said property." The state only contends that it was not required to prove that Mr. Lopez owned the stolen property in order for the evidence to be sufficient to support the conviction.
In a robbery case, it is "well settled that the taking from the person may be either actual or constructive." State v. Miller, 608 S.W.2d 158, 160 (Tenn. Crim. App. 1980). A taking is actual when it "is immediately from the person" and constructive "when in the possession of the victim or in the victim's presence." Id. This court has held that a victim may constructively possess property even when the property is in another room. See State v. Edwards, 868 S.W.2d 682, 700 (Tenn. Crim. App. 1993) (although the victim was raped in her bedroom and bathroom, she constructively possessed the wallet that the defendant took from her living room); see also State v. John David Palmer, No. W1999-01310-CCA-R3-CD, Gibson County, slip op. at 7 (Tenn. Crim. App. Feb. 7, 2001), app. denied (Tenn. June 18, 2001) (stating that "theft of property located in essentially the same building as the victim is located, is sufficient to be `from the person' of the victim" for the purpose of proving robbery).
"`Owner' means a person, other than the defendant, who has possession of or any interest . . . in property, even though that possession or interest is unlawful." T.C.A. § 39-11-106(a)(26). " vidence of possession is ordinarily sufficient proof of ownership; and this is true although the one in possession may have held the property as bailee, trustee, or otherwise having only a special interest, and not a general ownership of the property." Jones v. State, 166 Tenn. 1
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