         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs July 10, 2007

                    CARL JOHNSON v. STATE OF TENNESSEE

                       Appeal from the Criminal Court for Shelby County
                           No. P 26265     Joseph B. Dailey, Judge


                  No. W2006-01805-CCA-R3-PC - Filed November 28, 2007


The Appellant, Carl Johnson, appeals the order of the Shelby County Criminal Court denying his
petition for post-conviction relief. Johnson, who was convicted of especially aggravated robbery,
is currently serving a sentence of twenty-five years in the Department of Correction. Following the
affirmance of his conviction on direct appeal, Johnson filed a petition for post-conviction relief
alleging numerous instances of ineffective assistance of counsel, which was denied. On appeal, this
court remanded the case for an evidentiary hearing “solely on the petitioner’s complaint of the
ineffective assistance of counsel regarding lesser-included offense instructions and Owens.”
Following an evidentiary hearing, during which Johnson challenged only trial counsel’s failure to
request that aggravated assault be charged as a lesser-included offense of especially aggravated
robbery, the post-conviction court again denied relief finding that trial counsel was not ineffective
for failing to request the lesser charge. In the instant appeal, Johnson challenges the denial of relief.
Following a review of the record and the law applicable at the time of trial, we find no reversible
error and affirm the denial of post-conviction relief.

                Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

DAVID G. HAYES, J., delivered the opinion of the court, in which THOMAS T. WOODALL and NORMA
MCGEE OGLE, JJ., joined.

Lance Chism, Memphis, Tennessee, for the Appellant, Carl Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Greg Gilbert, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                              OPINION

                                        Factual Background

        The underlying facts of the case, as established on direct appeal and as relevant to this appeal,
are as follows:
        The defendants[, Carl Johnson and Derrick Sutton,] were each indicted for
one count of especially aggravated robbery and one count of criminal attempt to
commit first degree murder for the August 30, 1998 robbery and shooting of Anthony
Hendrix in Memphis, Tennessee. The evidence presented at their joint trial was that
on August 29, 1998, the defendants and two female acquaintances, Treasy Alsobrook
and Toshia Rainey, developed a plan to rob the victim when he arrived at Ms.
Alsobrook’s house later that evening for a date. The evidence further showed that
in the early morning hours of August 30, 1998, the defendants executed the plan,
robbing the victim as he sat in his car waiting for Ms. Alsobrook and shooting him
twice as he fled from the car.

        Treasy Alsobrook testified as follows: Early on the afternoon of August 29,
1998, the victim drove by her house, gave her his beeper number, and asked her to
meet him later in the day. After the victim left, Ms. Alsobrook’s cousin, Toshia
Rainey, arrived, and Ms. Alsobrook informed her of her conversation with the victim.
Ms. Alsobrook and Ms. Rainey went to Derrick Sutton’s house, where they visited
with Sutton and [the Appellant]. During the course of that visit, the four developed
a plan to rob the victim.

        Ms. Alsobrook testified that in accordance with their plan, she telephoned the
victim and asked if he would take her out to eat. He agreed, and Ms. Alsobrook and
Ms. Rainey returned to Ms. Alsobrook’s house to wait for the victim. When the
victim arrived around1:00 a.m., Ms. Alsobrook got into his car, and he began to drive
down the street. She asked him to stop, telling him that she wanted to investigate an
unfamiliar car in her backyard. He complied, waiting in his car as she got out,
walked to her house, checked the backdoor, and then returned. She was about to get
back into the victim’s car when Sutton, in a show for the victim’s benefit, came up
behind her, put a gun to her head, grabbed her, and ordered her to sit on the curb with
her head down. Sutton then got into the front passenger side of the car, followed by
[the Appellant], who got into the backseat. According to Ms. Alsobrook, both
defendants were armed with handguns. Ms. Alsobrook heard the defendants ask the
victim for money and then heard the victim being hit on the head with a gun. The
victim got out of the car and began running, and Ms. Alsobrook heard gunfire. She
looked up to see [the Appellant] shooting at the fleeing victim, who stumbled, as if
about to fall. Afterward, Sutton laid his gun on her front porch, and the two
defendants got into their car parked in her backyard and drove away. Shortly
thereafter, the police arrived and arrested her.

       ....

        The victim provided essentially the same account as Ms. Alsobrook regarding
his afternoon meeting with Ms. Alsobrook at her house, their subsequent telephone
communication, and his arrival at her house for the date. He further testified as


                                         -2-
follows: As he waited outside Ms. Alsobrook’s house in the early morning hours of
August 30, he noticed two men but did not pay them much attention. After Ms.
Alsobrook came out of the house and got into his car, he began to drive away but
stopped when she told him that she wanted to check a strange car in her backyard.
He became uneasy when he saw Ms. Alsobrook peer into a window of her house,
rather than at the car in the backyard. He said that he locked the driver’s door of his
car and decided to drive away when Derrick Sutton suddenly opened the passenger
door, held a gun on him, and ordered him to “drop it off.”

        The victim testified that he pushed the gun away and gave Sutton $690.
Sutton took the money and ordered the victim to pull his shirttail over his head and
not to look at him. Another man entered the backseat of the car, and Sutton went to
the front passenger seat. As Sutton held the gun on the victim and rummaged
through the car’s glove compartment, the man in the backseat hit the victim in the
back of the head three times with a gun, saying “make that call, bitch” and “bitch,
you think we’re playing with you, don’t you?” From his voice, the victim recognized
the man in the backseat as [the Appellant,] a man with whom he had gambled and
from whom he had recently won a large sum of money.

        The victim testified that he jumped out of the car and ran toward a wall.
When he jumped on the wall, he heard gunshots, realized he had been shot, and
started spitting up blood. He kept going, however, and managed to escape by falling
over a fence and running in a zigzag pattern down the street to a neighborhood house,
where he waited until an ambulance arrived. The victim testified that he experienced
a lot of pain from his two gunshot wounds and that two or three months passed
before he was able to resume his normal activities.

       ....

        Phillip Collins, [the Appellant’s] cell mate in the Shelby County Jail for four
months in 1999, testified as follows: [The Appellant] told him that he had gotten
close to seven hundred dollars by robbing the victim. According to Collins, [the
Appellant] said that a woman “beeped” the victim to ask him to take her out. When
the victim arrived at the woman’s house, [the Appellant] sneaked around his car,
crept into the backseat, “smacked” the victim’s head with a pistol, and demanded
money and drugs. [The Appellant] told him that the victim tried to run and that he
fired five or six shots at him, from both inside and outside the car, until his nine-
millimeter gun jammed. [The Appellant] related that he chased the fleeing victim.
[The Appellant] told Collins that the victim fell but got up and jumped a fence to
escape.

        ....



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                The [Appellant] elected not to testify, and no proof was presented by the
         defense. . . .

State v. Carl Johnson and Derrick Sutton, No. W2000-00278-CCA-R3-CD (Tenn. Crim. App. at
Jackson, Apr. 4, 2001). Following a jury trial, the Appellant was convicted of especially aggravated
robbery and sentenced, as a Range I, violent offender, to twenty-five years in the Department of
Correction.1 Id. The conviction was subsequently affirmed on direct appeal. Id.

        Thereafter, the Appellant filed a timely petition for post-conviction relief, with his chief
complaint being that trial counsel was ineffective. Carl Johnson v. State, No. W2003-02760-CCA-
R3-PC (Tenn. Crim. App. at Jackson, Jan. 25, 2005). In the petition, the Appellant asserted multiple
instances of ineffective assistance of counsel.2 Specifically, he alleged that trial counsel was
ineffective: (1) by failing to request that the trial court instruct the jury on aggravated assault as a
lesser-included offense of especially aggravated robbery; and (2) by failing to pursue a judgment of
acquittal based upon State v. Owens, 20 S.W.3d 634 (Tenn. 2000). Id. At the initial post-conviction
hearing, the court failed to consider these two allegations, finding that it was “not the place - - the
time or place to make these arguments.” Id. In dismissing the petition, the court noted that the
arguments should have been made at trial or recognized by this court on direct appeal. Id. On
appeal, a panel of this court concluded that the Appellant had not been given a full evidentiary
hearing on these issues and remanded the case to the post-conviction court for a hearing limited to
those issues. Id.

        Following remand, an evidentiary hearing was held on July 23, 2005, at which the only
witness to testify was trial counsel. Trial counsel acknowledged that he did not request an
instruction with regard to aggravated assault as a lesser-included offense of especially aggravated
robbery, but he stated he did so because “[i]t was not part of the defense theory.”3 Trial counsel
stated that, during the trial, he pursued a two-fold defense theory: (1) challenging the prosecution
witnesses’ credibility with regard to whether the Appellant was present at the crime scene; and (2)
arguing that the completed crime was not especially aggravated robbery but rather aggravated
robbery because the victim’s injuries did not rise to the level of “serious bodily injury.” Trial
counsel testified that he did not recall if he was aware, at the time of the Appellant’s trial, whether
aggravated assault was a lesser-included offense of especially aggravated robbery.


         1
             The jury deadlocked on the remaining count of criminal attempt to commit first degree murder.

         2
          W e are constrained to note that the Appellant has failed to include a copy of the petition in the record before
us. Thus, our knowledge is limited to that expressed in the prior opinion filed by a panel of this court.

         3
             W e note that the Appellant has failed to include the jury instructions in the record; he, nonetheless, asks us to
take judicial notice of prior appeals. As the question of whether the instruction was given is not in dispute, we elect to
review despite the Appellant’s failure to prepare a complete record for appeal. This court has held on multiple occasions
that it is the Appellant’s duty to provide an adequate record for review. Tenn. R. App. P. 24(b). In an appeal where the
only issue raised is one regarding the propriety of the jury instructions, it would be most prudent to include the charge
in the record.

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       After hearing the proof presented, the post-conviction court entered an order on July 24,
2006, denying the Appellant’s request for relief.

                                              Analysis

        On appeal, the Appellant raises the single issue of ineffective assistance of counsel.
Specifically, he contends that trial counsel was ineffective in failing to request an instruction on
aggravated assault as a lesser-included offense of especially aggravated robbery. According to the
Appellant, it was ineffective for trial counsel not to request this instruction because the law at the
time of trial supported a good faith argument that aggravated assault was a lesser-included offense
of especially aggravated robbery and that he was prejudiced by trial counsel’s failure to request said
instruction.

        To succeed on a challenge of ineffective assistance of counsel, the Appellant bears the burden
of establishing the allegations set forth in his petition by clear and convincing evidence. T.C.A. §
40-30-110(f) (2006). The Appellant must demonstrate that counsel’s representation fell below the
range of competence demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975). Under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984),
the Appellant must establish (1) deficient performance and (2) prejudice resulting from the
deficiency. The petitioner is not entitled to the benefit of hindsight, may not second-guess a
reasonably based trial strategy, and cannot criticize a sound, but unsuccessful, tactical decision made
during the course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.
1994). This deference to the tactical decisions of trial counsel is dependent upon a showing that the
decisions were made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim.
App. 1992).

       It is unnecessary for a court to address deficiency and prejudice in any particular order,
or even to address both if the petitioner makes an insufficient showing on either. Strickland, 466
 U.S. at 697, 104 S. Ct. at 2069. In order to establish prejudice, the petitioner must establish a
“reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999) (quoting Strickland,
466 U.S. at 694, 104 S. Ct. at 2068).

        The issues of deficient performance by counsel and possible prejudice to the defense are
mixed questions of law and fact. Id. at 461. “[A] trial court's findings of fact underlying a claim of
ineffective assistance of counsel are reviewed on appeal under a de novo standard, accompanied with
a presumption that those findings are correct unless the preponderance of the evidence is otherwise.”
Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P. 13(d); Henley v. State, 960
S.W.2d 572, 578 (Tenn. 1997)). However, conclusions of law, are reviewed under a purely de novo
standard with no presumption that the post-conviction court’s findings are correct. Id.




                                                 -5-
        The Appellant’s trial was held during the week of October 25, 1999. From the record, we
glean that the trial court did instruct the jury on aggravated robbery and robbery as lesser-included
offenses of especially aggravated robbery. Moreover, there is no indication, and trial counsel
concedes, that he did not request that an instruction be given on aggravated assault.

         The law in Tennessee is clear that “the issue of lesser included offenses is controlled by the
prevailing law at the time of trial . . . .” Chivous Robinson v. State, No. E2005-01036-CCA-R3-PC
(Tenn. Crim. App. at Knoxville, May 19, 2006) (citing Wiley v. State, 183 S.W.3d 317, 328 (Tenn.
2006)). Thus, we must look to the law of lesser-included offenses as it was defined in October 1999,
which was set forth in State v. Trusty, 919 S.W.2d 305, 310 (Tenn. 1996). Trusty held that “an
offense qualifies as a lesser included offense only if the elements of the included offense are a subset
of the elements of the charged offense and only if the greater offense cannot be committed without
also committing the lesser offense.” Trusty, 919 S.W.2d at 310 (citing Schmuck v. United States,
489 U.S. 705, 716, 109 S. Ct. 1443, 1450-51 (1989)). The standard is that “[t]he lesser offense may
not require proof of any element not included in the greater offense as charged in the indictment.”
Id. at 311 (interpreting Howard v. State, 578 S.W.2d 83, 85 (Tenn. 1979)). Thus, a lesser-included
offense need not originate from the same class as the greater offense, as long as the lesser offense
is established by proof of the same or less than all the elements required to establish the commission
of the offense charged.

         The Appellant is correct that under this definition aggravated assault is a lesser-included
offense of especially aggravated robbery. Especially aggravated robbery requires the “intentional
or knowing theft of property from the person of another by violence or putting the person in fear,”
and: (1) is accomplished with a deadly weapon; and (2) the victim suffers serious bodily injury.
T.C.A. §§ 39-13-401, -403 (1997). Aggravated assault is committed when a person commits an
assault by causing bodily injury and: (1) causes serious bodily injury to another; or (2) uses or
displays a deadly weapon. T.C.A. §§ 39-13-101, -102 (1997). Clearly, to prove aggravated assault
by bodily injury requires proof of no additional elements than those required to prove especially
aggravated robbery. The distinguishing element between the two is the theft of property. At the time
of trial, two unreported cases by this court had recognized that aggravated assault was a lesser-
included offense of aggravated robbery. See State v. George Brooks, No. 02C01-9602-CR-00050
(Tenn. Crim. App. at Jackson, May 14, 1997); see also State v. Vickie R. Herron, et al., No. 02C01-
9702-CR-00067 (Tenn. Crim. App. at Jackson, Dec. 31, 1998). As noted by the Appellant, it was
reasonable to assume that as a lesser-included offense of aggravated robbery, aggravated assault was
likewise a lesser-included of especially aggravated robbery. See State v. Thomas J. Tackett, No.
M1999-02541-CCA-R3-CD (Tenn. Crim. App. at Nashville, June 28, 2001).

        Having determined that the offense of aggravated assault was a lesser-included offense,
however, does not end our inquiry into whether ineffective assistance of counsel was established by
trial counsel’s failure to request the charge. Under the law existing at the time, the trial court was
not required to instruct the jury on the lesser offense of aggravated assault in every indictment which
charged aggravated robbery. In State v. Langford, 994 S.W.2d 126 (Tenn. 1999), the Tennessee
Supreme Court stated that “[w]hile it is generally error for a trial court not to instruct the jury on all


                                                   -6-
lesser included offenses, this Court has interpreted this statutory provision [Tenn. Code Ann. § 40-
18-110(a))] to mean that a trial court must instruct the jury on all lesser included offenses if the
evidence introduced at trial is legally sufficient to support a conviction for the lesser offense.”
Langford, 994 S.W.2d at 128 (citing State v. Bolden, 979 S.W.2d 587, 593 (Tenn. 1998)). The court
explained that “[f]ailure to instruct is not error where the record is devoid of any evidence permitting
an inference of guilt of the lesser offense.” Id. (citing State v. Stephenson, 878 S.W.2d 530, 550
(Tenn. 1994)). Thus, the law was that a trial court had to instruct the jury on the lesser offense only
if the trier of fact could rationally find the defendant guilty of the lesser offense and not guilty of the
greater offense. Brooks, No. 02C01-9602-CR-00050 (citing James v. State, 385 S.W.2d 86, 89
(Tenn. 1964)); see also Trusty, 919 S.W.2d at 310; State v. Howard, 926 S.W.2d 579, 586 (Tenn.
Crim. App. 1986). Accordingly, an instruction on a lesser offense was properly refused if the
evidence showed that the defendant was either guilty of the greater offense or not guilty of any
offense. Brooks, No. 02C01-9602-CR-00050 (citing Howard, 926 S.W.2d at 585).

        According to the Appellant, the instruction in this case was warranted because the evidence
presented did not “clearly” show that he was guilty of the greater offense of especially aggravated
robbery. His argument is based upon a credibility attack of the State’s three primary witnesses,
which we note was also made and rejected on direct appeal. It is not the province of this court to
review and make credibility determinations of trial witnesses. Rather, it is the jury, as the finder of
fact, who bears the burden of making such determinations, and we will not reweigh their decisions
on appeal. State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).

         The undisputed proof presented at trial established that the Appellant was part of a plan to
rob the victim. No proof was presented to establish a second motive for the attack on the victim.
Cf. Brooks, No. 02C01-9602-CR-00050. The Appellant’s theory of defense was two-fold: (1)
challenging the credibility of the State’s witnesses with regard to whether he was present when the
robbery occurred; and (2) disputing that the victim suffered serious bodily injury. As noted, the trial
court had a duty to charge on lessers only when the evidence “viewed in the light most favorable to
the defendant’s theory of the case, would justify a jury verdict in accord with the defendant’s theory,
and would permit a rational trier of fact to find the defendant guilty of the lesser offense and not
guilty of the greater offense.” State v. Elder, 982 S.W.2d 871, 877 (Tenn. Crim. App. 1998)
(citations and footnotes omitted). Nonetheless, regardless of the Appellant’s theory of defense, there
was simply no evidence presented in this case which would have allowed the jury to rationally
convict the Appellant of aggravated assault and acquit him of especially aggravated robbery. Again,
the uncontroverted proof established that the assault upon the victim was committed during the
perpetration of the planned robbery. Accordingly, we conclude that trial counsel was not deficient
in failing to request the instruction on aggravated assault. Moreover, as noted by the State, despite
the release of Burns prior to the filing of the Appellant’s motion for new trial, counsel cannot be
found deficient for not pursuing the matter on appeal because no prejudice could be established
based upon the undisputed proof of the robbery. See State v. Henry Hawkins, No. W2005-00781-
CCA-R3-CD (Tenn. Crim. App. at Jackson, June 21, 2006). In other words, any challenge to the
jury charge would have lacked merit because, if the jury found the serious bodily injury element of



                                                   -7-
aggravated assault, no rational juror could have not convicted of especially aggravated robbery. See
State v. Ely, 48 S.W.3d 710, 725 (Tenn. 2001).

        Regardless, even if deficient performance had been established, the Appellant has failed to
establish that prejudice resulted from the failure to charge the jury with the lesser-included offense,
a decision which is subject to harmless error review. See State v. Allen, 69 S.W.3d 181, 189 (Tenn.
2002). In making such a determination, this “court should conduct a thorough examination of the
record, including the evidence presented at trial, the defendant’s theory of the defense, and the
verdict returned by the jury.” Id. at 191. We must decide “whether a reasonable jury would have
convicted the defendant on the lesser-included offense instead of the charged offense.” State v.
Richmond, 90 S.W.3d 648, 662 (Tenn. 2002) (emphasis in original). As noted, we cannot conclude
that the jury would have so found in this case. Clearly, the jury accepted the motive of robbery as
the basis for the crime, as evidenced by the Appellant’s conviction of especially aggravated robbery,
with rejection of the lesser offenses of aggravated robbery and robbery. See State v. Williams, 977
S.W.2d 101, 106 (Tenn. 1998). Thus, the Appellant has failed to establish any resulting prejudice.

                                          CONCLUSION

         Based upon the foregoing, the Shelby County Criminal Court’s denial of post-conviction
relief is affirmed.


                                                       ___________________________________
                                                       DAVID G. HAYES, JUDGE




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