Billy J. Blankenship was convicted by a Campbell County jury of robbery (Class C felony) and theft of property valued between $1,000 and $10,000 (Class D felony). He received concurrent sentences of four years for robbery and three years for theft. On appeal, Blankenship contended that the evidence was insufficient to support the robbery conviction due to the State's failure to prove the specific allegations in the indictment. The Court of Criminal Appeals reversed and vacated the robbery conviction, ordering a new trial for that charge, while affirming the conviction for theft. The indictment detailed two counts: Count 1 accused Blankenship of aggravated robbery involving violence and a deadly weapon against Tabitha McNealy, and Count 2 charged him with theft from First Volunteer Bank.
On August 18, 2010, Beverly Lester testified about a bank robbery that occurred on July 14, 2009, at First Volunteer Bank in Jellico, where she was working as a teller. At around 2:50 p.m., with no customers present, Lester noticed a man with reddish hair, dressed in black, who entered the bank with a gun and demanded money from her colleague, Tabitha McNealy, while instructing her not to trigger any alarms. McNealy complied, filling a yellow bag with cash, while the robber displayed erratic behavior with the gun, which caused Lester significant fear for her life. She later identified the robber, Blankenship, from security footage.
Sheila Powers, another teller, provided a similar account but could not identify the robber. She confirmed that the bank owned the stolen money, not McNealy. Tabitha McNealy, who filled the robber's bag with over $8,000, also testified that the money belonged to the bank and did not come from her personal funds.
FBI Special Agent Paul Hughes detailed the investigation, stating that after the robbery, law enforcement officers approached Blankenship at his home, where he confessed to committing the robbery due to severe financial distress. He had been unemployed and felt pressured to support his family. Blankenship had disguised himself with a hat containing a wig and used a black-painted airsoft pistol that resembled a real firearm during the robbery.
Blankenship entered First Volunteer Bank, demanded money from the teller while instructing her not to activate any alarms, and left with a bag of cash. After the robbery, he returned home and gave his wife approximately $1250, claiming it was from a fictitious job. He also paid a family member $100 to settle a debt, kept $100 for himself, and concealed the remaining cash under a utility shed near a gas well. Blankenship later told Special Agent Hughes that he disposed of his disguise and the pistol, which was identified as a toy gun, into a body of water while fleeing. Efforts by law enforcement to locate the hidden money and discarded items were unsuccessful.
Blankenship's wife provided officers with a "bank robbery demand note" she found at home, which Blankenship claimed he had written as a joke and later retrieved from a friend. During cross-examination, it was noted that Blankenship cooperated with authorities. Special Agent Buddy Early corroborated Hughes's account of Blankenship’s statements, including that he chose the bank due to familiarity as a former customer and initially intended to use the demand note but changed his plan.
The note, submitted as evidence, instructed the teller to "put all the money in the bag and no one gets hurt." Assistant Chief J.J. Hatmaker, involved in the investigation, testified about recovering $1180 in cash from Blankenship's wife and noted that Blankenship's written statement was consistent with earlier testimonies. Officers found two additional notes in Blankenship's vehicle detailing preparations for the robbery, including lists of materials and a "game plan." Video recordings from the bank's security cameras were also retrieved and presented as trial evidence.
Hatmaker testified that immediately after the robbery, he confirmed that only the bank's money, under Ms. McNealy's control, was stolen, and none of her personal belongings were taken. Michael Johnson, the bank's branch manager, reviewed security footage post-robbery and noted that each teller was accountable for the money in their assigned drawer. Johnson denied giving permission for Blankenship to take $8,000 from the bank. Christy Rigney, a financial service representative, recounted witnessing a man in a disguise ordering Ms. McNealy to put money in a bag while brandishing a gun, causing fear among the tellers. Rigney identified Blankenship, whom she recognized from school, and noted that the robbery lasted about two minutes. Blankenship did not present a defense during the trial and was convicted of robbery and theft of property valued between $1,000 and $10,000.
On appeal, Blankenship argued that the evidence was insufficient to support his convictions, claiming the prosecution did not prove that the stolen money belonged to the victim named in the indictment. However, the State contended that he waived this challenge by not raising it prior to trial and asserted that the evidence was adequate for the convictions. The appellate court found the evidence sufficient for the robbery conviction but identified a plain error in the jury instruction regarding the definition of robbery, which allowed a conviction based on placing the victim in fear or through violence. The court confirmed adequate evidence supported the theft conviction as well. It upheld that guilt can be established through direct or circumstantial evidence, and the jury must assess witness credibility and reconcile conflicting evidence.
When assessing the sufficiency of evidence, a court will not reweigh or reevaluate the evidence presented. A jury's guilty verdict, ratified by the trial court, affirms the credibility of the State's witnesses and resolves any evidentiary conflicts in favor of the prosecution. This verdict replaces the presumption of innocence with a presumption of guilt, placing the burden on the defendant to demonstrate the evidence's insufficiency.
Blankenship’s argument centers on a discrepancy between the indictment allegations and the trial evidence, invoking the defendant’s constitutional right to understand the charges against them. Under Tennessee law, an indictment must clearly state the facts of the offense, allowing the accused to comprehend the accusation and providing a basis for the court to issue a proper judgment, while also safeguarding the accused from double jeopardy.
An indictment is deemed valid if it sufficiently informs the accused of the charges, enables the court to make a judgment, and protects against double jeopardy. Specific statutory references in the indictment can adequately notify the accused of the charges, and there is no requirement for the indictment to specify a theory of liability.
Continuity between the indictment and the trial evidence is essential; an individual cannot be convicted of an uncharged offense. The prosecution must charge the crime it intends to prove. An indictment can be amended with the defendant's consent, requiring a clear record of such consent. Without consent, amendments are permissible before jeopardy attaches, provided they do not introduce new offenses or prejudice the defendant’s rights. After an indictment is issued, any changes must come from the grand jury.
In Goodson, the court differentiated between constructive amendments to an indictment, which are automatically reversible, and variances between an indictment and the evidence, which are assessed under the harmless error doctrine. A constructive amendment occurs when the jury is allowed to convict on a factual basis that alters an essential element of the offense, leading to automatic reversal due to the defendant potentially being convicted on uncharged grounds. Conversely, if the variation does not change an essential element, it is considered a non-prejudicial flaw in the trial process.
Blankenship contended that the indictment incorrectly identified Ms. McNealy as the owner of the money taken in the robbery, while the evidence indicated that First Volunteer Bank was the owner, suggesting a variance that would invalidate his conviction. The court disagreed, noting that Blankenship's claim of waiver regarding the indictment issues was misplaced, as constructive amendments cannot be waived if not raised before trial. The indictment stated that Blankenship unlawfully obtained property from Ms. McNealy but did not specifically name her as the owner of the money, indicating no variance existed between the indictment and the proof presented at trial. Furthermore, even if Ms. McNealy had been named as the owner, the legal definition of "owner" includes any person with possession or interest in the property, which Ms. McNealy satisfied. Thus, the court found no variance based on ownership, referencing a precedent where a similar situation did not result in a variance.
In *State v. Maxwell*, the Tennessee Court of Criminal Appeals found no variance in an indictment alleging a motel clerk was the owner of stolen money, despite trial proof showing the motel owned the money. Similarly, in *Harrell v. State*, the court ruled that the indictment's claim of theft from a supermarket cashier was valid even though the supermarket owner actually owned the money.
Regarding Blankenship's case, he was not entitled to relief based on insufficient evidence of robbery by violence. The term "violence" is defined as "physical force unlawfully exercised," and pointing a gun at a victim constitutes such violence. Although the Tennessee Supreme Court previously ruled that a carbon dioxide-powered pellet gun is not a deadly weapon per se, sufficient evidence exists to support Blankenship's conviction. Eyewitnesses, including bank tellers, testified that he had a gun, and photographs did not indicate it was anything but a real firearm. Blankenship's claim that the gun was a toy was undermined by the absence of the firearm and money where he said they would be found. The jury could choose which parts of Blankenship’s pretrial statements to believe. Since the indictment specified robbery by violence, and pointing a handgun at a victim qualifies as such, the evidence was deemed adequate to uphold the robbery conviction.
The trial court erred by instructing the jury that Blankenship could be convicted of robbery based on either placing the victim in fear or through violence, despite the indictment specifying that the robbery was committed "by violence." The legal standards for identifying plain error were articulated in State v. Adkisson, which requires that the trial record must clearly establish the error, a breach of law must be evident, a significant right must be adversely affected, there should be no tactical waiver of the issue, and addressing the error must be essential for substantial justice. The aggravated robbery statute defines robbery as either committed with a deadly weapon or by instilling fear, while the robbery statute identifies two modes of commission: by violence or by fear. The court's instruction improperly allowed the jury to consider both modes despite the prosecution being confined to proving the offense by violence alone, as stated in the relevant case law. The overwhelming evidence at trial confirmed that the offense was committed by violence, yet the jury was misled into considering both modes, which undermined the integrity of the conviction.
The Tennessee Supreme Court mandates that when evaluating jury instructions, the entire charge must be considered to determine if prejudicial error occurred. A jury instruction is deemed prejudicially erroneous if it fails to accurately present the legal issues or misguides the jury regarding the applicable law. In this case, the robbery jury instruction did not fairly submit the legal issues and misled the jury, resulting in a finding of prejudicial error. Thus, the trial court committed plain error, leading to the reversal and vacating of the robbery conviction, with a remand for a new trial on that charge.
Regarding the theft conviction, the evidence showed that Blankenship had planned and executed the robbery of First Volunteer Bank, taking approximately $8,000 without consent, which sufficiently supported the theft conviction. However, the theft conviction should have been merged with the robbery conviction because both were based on the same facts, violating double jeopardy principles. The court noted that if the robbery conviction is reinstated upon appeal or after retrial, the theft and robbery convictions must merge to avoid double jeopardy violations. The court concluded by reversing the robbery conviction and affirming the theft conviction.
