         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs December 11, 2002

             STATE OF TENNESSEE v. JAMES RUBEN CONYERS

                  Direct Appeal from the Circuit Court for Houston County
                            No. 4443    Allen W. Wallace, Judge



                   No. M2002-01007-CCA-R3-CD - Filed September 5, 2003


The appellant, James Ruben Conyers, was convicted by a jury in the Houston County Circuit Court
of especially aggravated burglary, a Class B felony; especially aggravated robbery, a Class A felony;
and attempted first degree murder, a Class A felony. Following a sentencing hearing, the trial court
sentenced the appellant to an effective sentence of eighty years incarceration in the Tennessee
Department of Correction. On appeal, the appellant raises numerous issues relating to the
sufficiency of the evidence, the admission of evidence, the sufficiency of the indictment, the jury
instructions, and sentencing. Upon review of the record and the parties’ briefs, we find no merit to
the appellant’s contentions. However, we recognize as plain error that the appellant’s conviction for
especially aggravated burglary was prohibited under Tennessee Code Annotated section 39-14-
404(d) (1997). Accordingly, we modify the conviction to aggravated burglary and reduce the
appellant’s sentence for this conviction to ten years incarceration, for a total effective sentence of
eighty years.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court are Affirmed in
                        Part, Modified in Part, and Remanded.

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which DAVID G. HAYES and JOHN
EVERETT WILLIAMS, JJ., joined.

William B. “Jake” Lockert, III, and Wade Bobo, Ashland City, Tennessee, for the appellant, James
Ruben Conyers.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
Dan M. Alsobrooks, District Attorney General; and Carey Thompson, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION
                                       I. Factual Background
                On April 6, 2001, at approximately 7:30 p.m., eighty-six-year-old Mildred Parker had
just sat down to watch “Diagnosis Murder” when she heard a knock at the front door. Because it was
unusual for anyone to use her front door, Mrs. Parker did not open the door, but instead looked out
the window to see who was knocking. When she looked out the window, a black male, later
identified as the appellant, inquired about purchasing her car. Mrs. Parker informed the appellant
that the vehicle was not for sale, but the appellant insisted on speaking with her. Mrs. Parker shook
her head and told him, “No.” She then walked to the back of the house to ensure that the back doors
were locked.

                When Mrs. Parker reached the back door, she observed the appellant “walking up the
ramp . . . [with] a big, fat rock in his hand.”1 The appellant demanded that Mrs. Parker open the
door, but she refused. The appellant then became belligerent and yanked on the door, shouting,
“You bitch you, I’ll kill you and get your money. Open this door.” As Mrs. Parker turned to run into
the bedroom, the appellant shattered the glass in the back door with his hand. Mrs. Parker proceeded
to the bedroom where her deceased husband had hidden a loaded .38 Special revolver. She grabbed
the revolver, but her arthritis prevented her from being able to pull the trigger.2 By this time, the
appellant had entered the house and reached the bedroom. Mrs. Parker then ran through the house
to the kitchen door and attempted to exit the house. Before she could escape, the appellant “grabbed
[her] by the hair and pulled [her] back in.”

                The appellant’s hand was bleeding profusely. Mrs. Parker testified at trial that the
appellant “didn’t want any of his blood there and he started wiping up all the blood,” using towels,
cooking gloves, rugs from the kitchen floor, and a red and white checked apron. After attempting
to clean up the blood, the appellant demanded money from Mrs. Parker. Mrs. Parker led the
appellant into a small office and gave the appellant “a little over $500” that she had received for her
birthday. The appellant was not satisfied with this amount and demanded more money, but Mrs.
Parker informed him that she had no more. The appellant then stated, “Well just write me a check
for $500.00 and I’ll go.” Mrs. Parker told the appellant that she did not have $500, and instead wrote
him a check for $200. Thereafter, the appellant forced Mrs. Parker to write a note on the back of
another check, which note read, “I’m suicidal myself.”

                 By this time, Mrs. Parker was covered in blood. She explained at trial that “[i]t was
all [the appellant’s] blood . . . because I hadn’t been hurt [or] cut at the time.” The appellant made
Mrs. Parker go into the bathroom, undress, and shampoo her hair. He then helped Mrs. Parker rinse
the shampoo and blood from her hair. Thereafter, Mrs. Parker dressed in a pair of pajamas and sat
on the sofa in the living room. The appellant handed Mrs. Parker her purse. Complying with his
instructions, Mrs. Parker took out her billfold and “gave [the appellant] what money was in there.”

               Thereafter, the appellant approached Mrs. Parker, put a white telephone cord around
her neck, and proceeded to choke her. Finding the white cord to be insufficient to choke Mrs.
Parker, the appellant wrapped a brown extension cord around her neck. Still unsatisfied with his


       1
           At trial, Mrs. Parker testified that she never again saw the rock.

       2
           Mrs. Parker testified that the gun fell out of her hand and she believed that the appellant picked it up.

                                                          -2-
progress, the appellant pulled Mrs. Parker off the sofa and began yanking up and down on the
extension cord, banging her head into the floor. Mrs. Parker was able to prevent the appellant from
choking her by placing two fingers under the cord. The appellant then hit Mrs. Parker in the head
with an unknown object, poured Clorox in her face, and “stomped” her in the head. In order to end
the attack, Mrs. Parker “went limp” and pretended to be dead.

               The appellant took a cloth and wiped Mrs. Parker’s face, body, and shoes. Mrs.
Parker heard the appellant walking around her house and then she heard a door close. Fearing the
appellant would return, Mrs. Parker lay still and waited. Finally, she felt her Siamese cat nudge her
leg and, because her cat would not come out when other persons were in the house, Mrs. Parker
knew the appellant was gone.

               Following the appellant’s departure, Mrs. Parker sat up and observed that her head
was bloody and blood was running into her face. She managed to walk to her telephone and dial
911; however, because she could not hear, she was unaware that the operator answered. Mrs. Parker
hung up and dialed again. Still unable to hear the operator, Mrs. Parker decided to call her family.
She called her cousin, whom she informed, “I have been hurt, been beaten, come to me.” Mrs.
Parker then called the hospital and requested an ambulance. When an officer arrived at the scene,
Mrs. Parker asked him to remove the cord from her neck, but he told her to sit down and wait for the
ambulance.

                  Mrs. Parker’s injuries were photographed at the scene of the offense and at the
hospital. These photographs were entered into evidence at trial. Mrs. Parker also described her
injuries at trial, stating that
                  my neck was quite blue [and] bleeding; my head had two big gashes
                  in it, [which the doctors] had to sew up; my arms were black and
                  blue; my face was black and blue; I’ve got a bad place on my leg that
                  hasn’t healed yet; my back - well I had bruises all over me. And of
                  course I was bloody.
Mrs. Parker’s injuries required her to be hospitalized for seven days. At the time of trial, she was
“doing fair,” but she still had “some marks” on her leg and was having trouble hearing as a result of
the appellant “stomping” on her head.

                 After she was taken to the hospital, several officers, including Officer Chad Smith
and Agent Joe Craig, came to question Mrs. Parker about her attack. She provided the officers with
a description of her assailant, describing him as clean-shaven with short hair. Additionally, she
related that her assailant was wearing dark trousers, an orange and green windbreaker, and a white
t-shirt. When the officers showed her a photo lineup, she was unable to positively identify her
assailant, but did note that one of the individuals looked like her assailant but was “darker.” At trial
she identified the appellant as the man who attacked her.

               Mrs. Parker testified that in addition to taking an undetermined amount of money, the
appellant had taken a green Erin Bank money bag containing fifty-five dollars, the two hundred


                                                  -3-
dollar check, a gold bracelet, her husband’s wedding rings and Elgin pocket watch, her mother’s
wedding ring, her father’s “elk ring,” the victim’s purse, the revolver, and various other items. None
of these items were recovered. She further surmised that the appellant must have brought the brown
extension cord to her house because she did not own one. Mrs. Parker testified that these events
lasted more than an hour.

               Officer Dalton Greenwell testified at trial that on April 6, 2001, he responded to a call
regarding a “911 hangup” at 125 Front Street. When he arrived at that address, he proceeded to the
back of the house where he observed that the back door was ajar and the glass had been broken out
of the back door. Officer Greenwell called out to Mrs. Parker. He testified that as she approached,
he observed a large cut on her head, blood covering her face, and a telephone cord and brown
extension cord tied around her neck. Mrs. Parker asked Officer Greenwell to remove the cords
because she was having trouble breathing, but he was unable to untie the knots. While at the scene,
Officer Greenwell discovered a broom outside the back door. He testified that the broom appeared
to have been used to break the glass out of the doors. He observed blood on the broom’s handle and
throughout the house.

                Erin Police Chief Tommy Parchman also responded to the call at 125 Front Street.
When he arrived at the scene, he observed that the glass had been broken out of the back door. He
also observed Mrs. Parker sitting in a chair near the door. Chief Parchman testified at trial that he
assisted in the collection of evidence, photographed Mrs. Parker’s injuries before she was taken to
the hospital, and photographed Mrs. Parker’s residence. Thereafter, he collected a piece of glass and
a “wood strip” from the back door. Both items appeared to have blood on them. Chief Parchman
explained that he took these items because he “felt like whoever broke in had cut himself” and the
blood could be used for DNA analysis.

                Chief Parchman subsequently accompanied several officers to the hospital to
interview Mrs. Parker. After Mrs. Parker provided them with a description of her assailant, she was
asked to identify her assailant from a photo lineup. Based upon Mrs. Parker’s description and her
identifications from the photo lineup, the officers developed the appellant as a suspect.

                 Chief Parchman testified that after midnight, he and the other officers went to an
apartment rented by Sandra Cooksey, in which apartment the appellant was allegedly residing. Chief
Parchman testified that the appellant “came out of the bathroom” and was ordered to the floor to be
handcuffed. Chief Parchman observed what appeared to be a fresh cut on the appellant’s hand, a cut
the appellant claimed to have received while he was being handcuffed. However, Chief Parchman
testified that the officers did not find any glass or sharp object on the floor.

               Several days later, Chief Parchman discovered a garbage can in a creek near Mrs.
Parker’s house. Inside the garbage can, he found an apron, a pillowcase, and a bedspread. Chief
Parchman related that Mrs. Parker had reported that on the night of the offense, the appellant had
used these items to wipe blood from his hands. Chief Parchman further testified that these items had



                                                  -4-
what appeared to be blood on them. Chief Parchman subsequently gave these items to Agent Craig
for testing at the Tennessee Bureau of Investigation (“TBI”) crime laboratory.

                On cross-examination, Chief Parchman acknowledged that he was familiar with
Sandra Cooksey. He related that the appellant and Cooksey were first cousins and that the couple
had a nineteen-year-old son. Chief Parchman testified that a few days prior to the instant offense,
officers had been called to Cooksey’s apartment regarding a domestic disturbance. During this
disturbance, the appellant had allegedly broken the glass out of the front door of the apartment.
Chief Parchman related that when the officers returned to the apartment on the night of the instant
offense, the glass had not been repaired. Nevertheless, Chief Parchman insisted that he did not find
any glass on the floor where the appellant had lain while being handcuffed.

                 Investigator Ted Tarpley of the District Attorney General’s Office testified that on
April 6, 2001, he was asked to assist the Erin Police Department in an investigation at 125 West
Front Street. He stated that after surveying the scene of the crime, he accompanied several other
officers to the hospital to interview Mrs. Parker. Investigator Tarpley related that once the appellant
was identified as a suspect, the officers went to Cooksey’s apartment. When the officers arrived at
the apartment, they informed Cooksey that they were there to speak to the appellant, and Cooksey
and her son left.

                Investigator Tarpley testified that he and the other officers were cautious as they
approached the apartment because they were aware that one of the items stolen from Mrs. Parker’s
house was a gun. Because he was not wearing a bullet-proof vest, Investigator Tarpley remained
outside while the other officers entered the apartment. However, once the appellant was arrested and
placed in a patrol car, Investigator Tarpley assisted in the search of the apartment. Investigator
Tarpley testified that he “found a card up under the commode in the bathroom.” The card was
addressed to “Uncle Bill and Aunt Mildred” and was signed “Love, Mike.” Investigator Tarpley
stated that he also observed blood and wet “washrags” in the bathroom sink.

                Investigator Tarpley then searched a “closet [that] contained the water heater.” In this
closet, Investigator Tarpley discovered some money in a pile of clothes. He also found a gray t-shirt
and black pants “stuffed” behind two blocks that had been removed from the wall. Thereafter,
Investigator Tarpley searched the bedroom belonging to the appellant’s son, in which bedroom he
found a laundry basket containing a jacket that had what appeared to be blood on it. Investigator
Tarpley stated, “[W]hen I saw these clothes and we saw the coat, . . . there [was] no question that
was the clothes [described by Mrs. Parker].”

               At trial, Boyd Phillips, a forensic scientist with the TBI crime laboratory testified that
he processed for latent fingerprints eight items submitted by Agent Joe Craig. These items included
a Christmas card, a green First Star checkbook, a Scottish Rites telephone book, a red pocketknife,
a green money bag, a bottle of 409 cleaner, and another green checkbook that contained the suicide
note. Unfortunately, Phillips was unable to lift an indentifiable print from any of these items.



                                                  -5-
                Agent Margaret Bash, a forensic serologist with the TBI crime laboratory, testified
that she also received several items from Agent Craig, which items included a broom, a piece of
broken glass, a wood shaving, a rug, and fingernail scrapings taken from Mrs. Parker. Agent Bash
stated that she was asked to test the items for the presence of blood and to conduct DNA analysis.
Testing revealed the presence of blood on the broom, the piece of glass, the wood shaving, and the
rug. Moreover, the DNA obtained from the blood on the broom, the piece of glass, and the wood
shaving matched the appellant’s DNA. Agent Bash testified that “the probability of an unrelated
individual having the same DNA profile . . . [was] greater than one in six billion.” Agent Bash also
discovered the presence of the appellant’s DNA in Mrs. Parker’s fingernail scrapings. However, she
was unable to get a DNA profile from the blood on the rug.

                Chief Deputy Darrell Allison with the Houston County Sheriff’s Department assisted
in the investigation at Mrs. Parker’s house. He testified at trial that he was asked to prepare a photo
lineup to be shown to Mrs. Parker. After preparing the photo lineup and delivering it to Agent Craig,
Chief Deputy Allison accompanied the other officers to the Cooksey apartment. Chief Deputy
Allison testified that when they arrived at the apartment, the appellant was in the bathroom. Chief
Deputy Allison did not enter the apartment until the appellant had exited the bathroom and lain down
on the floor to be handcuffed. Chief Deputy Allison related that as he handcuffed the appellant, the
appellant exclaimed, “Oh you have cut my hand.” However, Chief Deputy Allison stated that he did
not find any object upon which the appellant could have cut his hand. Moreover, Chief Deputy
Allison noted that the blood on the appellant’s hand appeared to be dry.

                TBI Agent Joe Craig testified that he was called to assist in the investigation at Mrs.
Parker’s residence. He stated that he first went to the hospital to interview Mrs. Parker, then he went
to the Cooksey apartment to arrest the appellant. At the hospital, Mrs. Parker informed Agent Craig
that her assailant was about six feet tall. She described the clothing worn by her assailant and stated
that he was clean-shaven with short hair. Agent Craig further related that although Mrs. Parker was
able to “narrow[] her photo [identification] down to two people, she was unable to positively identify
[the appellant].”

                Agent Craig testified that he was present at the Cooksey apartment when Chief
Deputy Allison placed the handcuffs on the appellant. He related that he did not observe a cut on
the appellant’s hand until the appellant stood up. However, Agent Craig stated that, because there
was no glass or other sharp object on the floor, he did not believe that the appellant’s hand was cut
while being handcuffed.

                Agent Craig testified that he assisted in the collection of evidence. He recalled that
at the Cooksey apartment, the officers discovered seventy dollars ($70) in a “utility closet,” forty
dollars ($40) in a bedroom, and a Christmas card in the bathroom between the toilet and the vanity.
Agent Craig testified that he did not request that the crime scene unit process the scene for
fingerprints, but instead collected evidence that Mrs. Parker alleged the appellant had touched.
Moreover, because Mrs. Parker informed the officers that the appellant had gained access into her



                                                 -6-
house by breaking the glass in the back door and storm door, Agent Craig chose to submit the broom,
the broken piece of glass, and the wood shaving for blood and DNA analysis.

               At trial, Dr. Daniel Martin testified that he treated Mrs. Parker when she was brought
into the emergency room on the night of the offense. Dr. Martin stated that Mrs. Parker was in
serious condition when she arrived at the hospital. Dr. Martin testified that
               [Mrs. Parker] had multiple head trauma, a deep scalp laceration, she
               had strangulation injury to her neck, she had multiple bruises and
               trauma of her hips, her legs and her back. She had severe anemia.
               Her blood count was low because of the trauma, she ble[d]. Then she
               had her underlying medical problems chronic obstructive lung
               disease, high blood pressure and arthritis. . . . [T]hat combination of
               injuries [was] very severe and . . . potentially life threatening.

                Dr. Martin related that the deep lacerations to Mrs. Parker’s scalp required a surgeon
to “repair.” Dr. Martin further testified that Mrs. Parker suffered severe swelling and bruising of the
neck, which worsened over the following twenty-four to thirty-six hours, resulting in difficulty
breathing. He stated that she was barely able to swallow and had to talk in a whisper. Dr. Martin
opined that, although she made a remarkable recovery, his “initial anticipation for [Mrs. Parker] was
not real good.”

                On cross-examination, Dr. Martin conceded that Mrs. Parker was alert when she was
brought into the emergency room. Moreover, he did not see anything to indicate that she had
suffered any brain damage and she had not broken any bones. Dr. Martin related that Mrs. Parker’s
injuries did not require blood transfusions, placement on a respirator, or admittance to the intensive
care unit. However, he did prescribe Demerol for her pain.

                 Faye Kiser Sanders, the appellant’s cousin, testified at trial on behalf of the appellant.
Sanders testified that she had taken care of Mrs. Parker’s husband for many years. She further
related that on the night of the alleged offense, the appellant came to her house. Sanders stated that
she was watching a movie when the appellant knocked at the door. The appellant then entered the
house and asked if “Terry” was home. When Sanders informed the appellant that “Terry” was not
home, the appellant left. Sanders testified that she did not observe the appellant’s attire that evening.
She stated that she was certain that the appellant came to her house around 7:00 p.m. because the
movie she was watching when he came to her house started at 7:00 p.m., the same time as
“Diagnosis Murder.”

                Sandra Elizabeth Cooksey also testified on behalf of the appellant. She testified that
she and the appellant were first cousins and that they had a nineteen-year-old son. Cooksey further
related that the appellant was residing with her when he was arrested.

                Cooksey testified that around dusk on the night of the alleged offense, she and the
appellant left her apartment. Cooksey informed the appellant that she was going to her mother’s


                                                   -7-
house and the appellant stated that he was going to his friend Rabbit’s house. Cooksey visited her
mother for approximately fifteen minutes before walking to Rabbit’s house. Cooksey related that
when the couple left Rabbit’s house, they “caught a ride” with an unknown white male in a pickup
truck. Cooksey testified that she asked the driver to take her back to her apartment, but the appellant
decided to go riding around with this individual. Cooksey then went to her cousin’s house until the
appellant returned home around 10:00 p.m.

                 Cooksey testified that she and the appellant had not been in bed long before the police
arrived at the apartment. She stated that when the officers asked her if the appellant was in the
apartment, she initially told them that he was not. Cooksey explained that because of the prior
domestic disturbance, the appellant was not supposed to be in her apartment. However, she testified
that after the officers forced her son to the ground and placed a gun to his head, she admitted that the
appellant was inside the apartment. Cooksey related that the appellant had cut his hand the night he
broke the glass out of the door to her apartment. She further stated that on the night the appellant
was arrested for the instant offense, she did not observe him with any jewelry, cash, or a .38 revolver.

                 Based upon the foregoing evidence, the jury convicted the appellant of especially
aggravated burglary, especially aggravated robbery, and attempted first degree murder. Following
a sentencing hearing, the trial court sentenced the appellant as a Range II multiple offender to twenty
years incarceration for the especially aggravated burglary, forty years incarceration for the especially
aggravated robbery, and forty years incarceration for the attempted first degree murder. The trial
court ordered that the sentences for especially aggravated burglary and especially aggravated robbery
be served concurrent to each other, but consecutively to the sentence for attempted first degree
murder, for a total effective sentence of eighty years incarceration. On appeal, the appellant contends
that (1) the evidence was insufficient to show serious bodily injury, an essential element of especially
aggravated burglary and especially aggravated robbery; (2) the trial court erred in admitting into
evidence a color photograph depicting the victim’s injuries; (3) the trial court erred in charging the
jury; (4) count three of the indictment charging attempted first degree murder was insufficient for
failing to allege an overt act or name a victim; and (5) the trial court erred in its application of certain
enhancement factors and the imposition of consecutive sentencing..

                                            II. Analysis
A. Especially Aggravated Burglary Conviction
               Although not raised by either party, the appellant’s conviction for especially
aggravated burglary violates Tennessee Code Annotated section 39-14-404(d), which provides that
“[a]cts which constitute an offense under this section may be prosecuted under this section or any
other applicable section, but not both.” Consequently, “[t]his subsection prohibits using the same
act to prosecute an accused for both especially aggravated burglary and another offense.” State v.
Oller, 851 S.W.2d 841, 843 (Tenn. Crim. App. 1992). In the instant case, the appellant was
convicted of both especially aggravated burglary and especially aggravated robbery based, in part,
upon the serious bodily injury suffered by Mrs. Parker. Because section 39-14-404(d) prohibits the
conviction for especially aggravated burglary, we recognize this as plain error and modify the
appellant’s conviction for especially aggravated burglary to aggravated burglary. Tenn. R. Crim. P.


                                                    -8-
52; see also State v. Gerald Leander Henry, No. 01C01-9505-CR-00161, 1999 Tenn. Crim. App.
LEXIS 167, at **85-86 (Nashville, Feb. 25, 1999). The reduction in the appellant’s sentence for this
conviction will be discussed in the sentencing section of this opinion.

B. Sufficiency of the Evidence
               The appellant contends that, because the State failed to prove that the victim suffered
serious bodily injury, the evidence was insufficient to sustain his convictions for especially
aggravated burglary and especially aggravated robbery. As previously noted, we have reduced the
appellant’s conviction for especially aggravated burglary to aggravated burglary. Accordingly, we
must determine whether the evidence was sufficient to convict the appellant of aggravated burglary
and especially aggravated robbery.

                When an appellant challenges the sufficiency of the convicting evidence, the standard
for review by an appellate court 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);
Tenn. R. App. P. 13(e). The State is entitled to the strongest legitimate view of the evidence and all
reasonable or legitimate inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d
832, 835 (Tenn. 1978). Questions concerning the credibility of witnesses and the weight and value
to be given the evidence, as well as all factual issues raised by the evidence, are resolved by the trier
of fact. Id. This court will not reweigh or reevaluate the evidence. State v. Grace, 493 S.W.2d 474,
476 (Tenn. 1973). Because a jury conviction removes the presumption of innocence with which a
defendant is initially cloaked at trial and replaces it on appeal with one of guilt, a convicted
defendant has the burden of demonstrating to this court that the evidence is insufficient. State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

               Aggravated burglary is the burglary of a habitation. Tenn. Code Ann. § 39-14-403(a)
(1997). Serious bodily injury is not an element of this offense. However, serious bodily injury is
an element of especially aggravated robbery, which requires that the robbery be accomplished with
a deadly weapon and that the victim suffer serious bodily injury. Tenn. Code Ann. § 39-13-403(a)
(1997). Thus, the State was required to prove serious bodily in order to sustain the appellant’s
conviction for this offense.

              “Serious bodily injury” is defined as bodily injury involving:
              (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.
Tenn. Code Ann. § 39-11-106(a)(34) (1997). “‘Bodily injury’ includes a cut, abrasion, bruise, burn
or disfigurement; physical pain or temporary illness or impairment of the function of a bodily
member, organ, or mental faculty.” Tenn. Code Ann. § 39-11-106(a)(2).


                                                  -9-
                The appellant argues that the injuries suffered by Mrs. Parker are analogous to those
suffered by the victim in State v. Sims, 909 S.W.2d 46 (Tenn. Crim. App. 1995). In Sims, 909
S.W.2d at 48-49, the victim received a broken nose, a bruised cheekbone, black eyes, and a
laceration across the bridge of her nose. Applying the ejusdem generis canon of statutory
construction, this court held that “the pain commonly associated with a broken nose [was not]
extreme enough to be in the same class as an injury which involves a substantial risk of death,
protracted unconsciousness, protracted or permanent disfigurement or the loss or impairment of the
use of a bodily member, organ or mental faculty.”3 Id. at 49. Accordingly, this court concluded that
the victim’s injuries did not constitute serious bodily injury and modified Sims’s conviction for
especially aggravated robbery to aggravated robbery. Id. at 50.

                The appellant contends that, like the victim in Sims, Mrs. Parker “did not suffer
serious pain,” nor did her injuries involve a substantial risk of death, protracted unconsciousness,
protracted or permanent disfigurement, or loss or impairment of the use of a bodily member, organ
or mental faculty. The State responds that the appellant’s reliance on Sims is misplaced. We agree
with the State, finding the facts in the instant case to be distinguishable from Sims.

                As a result of her injuries, Mrs. Parker was hospitalized for seven days. Dr. Martin
opined that Mrs. Parker was “in a serious medical condition when she arrived at the hospital” and
that the combination of her injuries was potentially life-threatening. Dr. Martin testified that Mrs.
Parker suffered from multiple head trauma and that her deep scalp lacerations required a surgeon to
“repair.” He related that the bruising and swelling of Mrs. Parker’s neck worsened after she was
admitted to the hospital, resulting in difficulty breathing and swallowing. Moreover, Mrs. Parker
lost a significant amount of blood and was suffering from severe anemia. Dr. Martin testified that
although the victim made a remarkable recovery, “[his] initial anticipation for [Mrs. Parker] was not
real good.”

                 Mrs. Parker testified at trial that she had “a bad place on [her] leg that [had not]
healed.” She also stated that as a result of the appellant “stomping” on her head, she continued to
have trouble hearing. Taken in the light most favorable to the State, the evidence was sufficient for
a rational trier of fact to conclude that Mrs. Parker suffered serious bodily injury. The combination
of her injuries demonstrated a substantial risk of death, while her difficulty hearing demonstrated the
impairment of a bodily organ. Moreover, unlike the victim in Sims, Mrs. Parker was prescribed
Demerol to ease the pain from which she suffered as a result of her attack. Accordingly, the
evidence was sufficient to sustain the appellant’s conviction for especially aggravated robbery. See
State v. Thomas J. Tackett, No. M1999-02541-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 479
(Nashville, June 28, 2001).

B. Color Photograph of Victim


         3
            “[E]jusdem generis means when words follow an enumeration of classes of things the words should be
construed to apply to things of the same general class as those enum erated . Therefore, the enumerated portions of the
definition of serious bodily injury should be read as coming from the same class of injuries.” Sims, 909 S.W.2d at 49.

                                                        -10-
                 The appellant next contends that the trial court erred in allowing into evidence a color
photograph of Mrs. Parker taken shortly after the attack. Specifically, the appellant alleges that “the
photograph . . . was prejudicial in that it showed a great deal of blood on the face of the elderly
victim as well as in the hair of the elderly victim.” The appellant maintains that the testimony of Dr.
Martin was sufficient to describe Mrs. Parker’s injuries. Moreover, the appellant argues that the trial
court should have instead admitted into evidence a black and white photograph depicting Mrs.
Parker’s injuries, which photograph the State had in its possession at trial. The State responds that
the trial court did not err in admitting the color photograph because the photograph was relevant to
prove serious bodily injury and the intent to commit first degree murder and to corroborate Mrs.
Parker’s testimony.

                The decision regarding the admissibility of photographs lies within the sound
discretion of the trial court and that ruling will not be overturned on appeal absent a showing of an
abuse of that discretion. State v. Banks, 564 S.W.2d 947, 949 (Tenn. 1978). In order to be admitted
as evidence, a photograph must be relevant to an issue at trial. Tenn. R. Evid. 402; State v. Braden,
867 S.W.2d 750, 758 (Tenn. Crim. App. 1993). “‘If relevant, the photograph is not rendered
inadmissible because the subject portrayed could be described by words; . . . the photograph would
be cumulative; . . . or [the photograph] is gruesome or for some other reason is likely to inflame the
jury.’” Collins v. State, 506 S.W.2d 179, 185 (Tenn. Crim. App. 1973) (quoting 3 Wharton’s
Criminal Evidence § 637 (13th Edition)). However, relevant photographs may be excluded if their
probative value is substantially outweighed by the danger of unfair prejudice to the defendant. Tenn.
R. Evid. 403; Banks, 564 S.W.2d at 951.

               The photograph in question shows Mrs. Parker sitting in her kitchen with a significant
amount of blood on her face and in her hair. Because the appellant was charged with especially
aggravated robbery, the photograph was relevant to show that Mrs. Parker suffered serious bodily
injury, an essential element of the offense. Tenn. Code Ann. § 39-13-403(a)(2). Moreover, the
photograph corroborated Mrs. Parker’s testimony regarding the events of the evening and the injuries
she sustained. See State v. James Spurling, No. E2001-00601-CCA-R3-CD, 2002 Tenn. Crim. App.
LEXIS 962, at *10 (Knoxville, Nov. 7, 2002) (finding photographs of the victim in the hospital
admissible to corroborate testimony regarding the victim’s wounds). Furthermore, although the
photograph shows a significant amount of blood, we do not find the photograph to be especially
gruesome or horrifying. Accordingly, we conclude that the trial court did not abuse its discretion
in admitting this photograph into evidence.

C. Jury Instructions
1. Failure to Properly Charge Especially Aggravated Burglary
                The appellant contends that the trial court “erred in not charging the statutory
language of especially aggravated burglary [under which the appellant] was indicted.” The appellant
asserts that “[s]ince [he] was indicted under the theory he entered the victim’s residence with the
intent to commit especially aggravated robbery and first degree murder, he was entitled to have the
jury charged in regard to that law.” The State maintains that both count one of the indictment and
the trial court’s instruction to the jury were sufficient to support the appellant’s conviction for


                                                  -11-
especially aggravated burglary. Again, we note that the appellant’s conviction for especially
aggravated burglary has been modified to aggravated burglary. Accordingly, we will address this
issue in light of that modification.

                A person commits burglary who, without the effective consent of the property owner:
                (1) Enters a building other than a habitation . . . not open to the
                public, with intent to commit a felony, theft or assault;
                (2) Remains concealed, with the intent to commit a felony, theft or
                assault, in a building;
                (3) Enters a building and commits or attempts to commit a felony,
                theft or assault; or
                (4) Enters any freight or passenger car, automobile, truck, trailer,
                boat, airplane or other motor vehicle with intent to commit a felony,
                theft or assault or commits or attempts to commit a felony, theft or
                assault.
Tenn. Code Ann. § 39-14-402(a) (1997). Aggravated burglary is defined as the burglary of a
habitation. Tenn. Code Ann. § 39-14-403(a). Especially aggravated burglary is the burglary of a
habitation or other building where the victim suffers serious bodily injury. Tenn. Code Ann. § 39-
14-404(a).

                In the instant case, count one of the indictment charged the appellant with especially
aggravated burglary under subsection (a)(1) of the burglary statute, charging in pertinent part that
                JAMES RUBEN CONYERS . . . did unlawfully, feloniously,
                intentionally, and knowingly enter the habitation of Mildred Parker,
                which was not open to the public, with intent to commit Especially
                Aggravated Robbery and First Degree Murder and did cause serious
                bodily injury to the said Mildred Parker, in violation of [Tennessee
                Code Annotated section] 39-14-404, a Class B felony, all of which is
                against the peace and dignity of the State of Tennessee.
See Tenn. Code Ann. § 39-14-402(a)(1). However, the trial court instructed the jury on the offense
of especially aggravated burglary and the lesser-included offense of aggravated burglary using the
statutory language in subsection (a)(3) of the burglary statute, stating,
                Any person who commits the offense of especially aggravated
                burglary is guilty of a crime. For you to find the defendant guilty of
                this offense, the [S]tate must have proven beyond a reasonable doubt
                the existence of the following essential elements:
                (1) that the defendant entered a habitation; and
                (2) that the defendant committed or attempted to commit especially
                aggravated robbery or first degree murder, both felonies.




                                                -12-
See Tenn. Code Ann. § 39-14-402(a)(3).4 Essentially, the appellant challenges the variance between
the indictment and the proof at trial.

                  The United States and the Tennessee Constitutions require that an indictment inform
the accused of “the nature and cause of the accusation.” U.S. Const. amend. VI; Tenn. Const. art.
I, § 9. An indictment satisfies this constitutional requirement “if it provides sufficient information
(1) to enable the accused to know the accusation to which answer is required, (2) to furnish the court
adequate basis for the entry of a proper judgment, and (3) to protect the accused from double
jeopardy.” State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997). A variance in the indictment and the
proof at trial is not fatal unless it is deemed to be material and prejudicial, affecting the substantial
rights of the defendant. State v. Moss, 662 S.W.2d 590, 592 (Tenn. 1984). In other words,
                  [u]nless substantial rights of the defendant are affected by a variance,
                  he has suffered no harm, and a variance does not prejudice the
                  defendant’s substantial rights (1) if the indictment sufficiently
                  informs the defendant of the charges against him so that he may
                  prepare his defense and not be misled or surprised at trial, and (2) if
                  the variance is not such that it will present a danger that the defendant
                  may be prosecuted a second time for the same offense; all other
                  variances must be considered to be harmless error.
Id.

                With these principles in mind, we conclude that the variance between count one of
the indictment and the instruction given by the trial court did not affect the substantial rights of the
appellant. Count one of the indictment, which cited the pertinent statute, sufficiently informed the
appellant that he was being charged with especially aggravated burglary. The appellant makes no
argument that he was misled by the indictment, surprised at trial, or unable to prepare a defense. In
fact, during the trial court’s charge to the jury, the appellant did not object to the challenged
instruction. Moreover, the indictment named the victim and alleged the date upon which the offense
occurred, eliminating the danger that the appellant would be prosecuted again for the same offense.
Because the appellant was not prejudiced by the variance in the indictment and the proof at trial, any
error was harmless.

2. Failure to Properly Charge Aggravated Burglary
               The appellant also challenges the trial court’s instruction on the lesser-included
offense of aggravated burglary. The trial court instructed the jury on this offense as follows:



        4
            The trial court instructed the jury regarding the lesser-include d offense of aggravated b urglary as follows:
                   Any person who comm its the offense of aggravated burglary is guilty of a crime.
                   For you to find the defendant guilty of this offense, the [S]tate must have proven
                   beyond a reasonab le doub t the existence of the following essential elements:
                   (1) that the defendant entered a habitation; and
                   (2) that the defendant committed or attempted to commit aggravated robbery and
                   first degree murder.

                                                          -13-
                  Any person who commits the offense of aggravated burglary is guilty
                  of a crime. For you to find the defendant guilty of this offense, the
                  [S]tate must have proven beyond a reasonable doubt the existence of
                  the following essential elements:
                  (1) that the defendant entered a habitation; and
                  (2) that the defendant committed or attempted to commit aggravated
                  robbery and first degree murder.

               The appellant contends that, because he was charged with especially aggravated
robbery, it was reversible error for the trial court to instruct the jury that the appellant could be
convicted of aggravated burglary based upon his entering a habitation and committing the lesser-
included offense of aggravated robbery. However, the appellant fails to cite any law in support of
this argument, thereby waiving the argument on appeal. Tenn. R. App. P. 27(a)(7). Nevertheless,
because we have modified the conviction for especially aggravated burglary to aggravated burglary,
the appellant’s argument regarding the instruction on aggravated burglary is moot.

3. Failure to Charge Aggravated Assault as Lesser-Included of Especially Aggravated Robbery
                 The appellant further challenges the trial court’s failure to charge aggravated assault
as a lesser-included offense of especially aggravated robbery. The State concedes that aggravated
assault is a lesser-included offense of especially aggravated robbery, but asserts that the error was
harmless beyond a reasonable doubt.

                Tennessee Code Annotated section 40-18-110(a) (1997) provides that a trial court
must charge the jury as to the law of each offense “included” in an indictment, namely the charged
offense and any lesser-included offenses.5 “In applying the lesser-included offense doctrine, three
questions arise: (1) whether an offense is a lesser-included offense; (2) whether the evidence
supports a lesser-included offense instruction; and (3) whether an instructional error is harmless.”
State v. Allen, 69 S.W.3d 181, 187 (Tenn. 2002).

                Under the test adopted in State v. Burns, 6 S.W.3d 453, 466-67 (Tenn. 1999), an
offense is a lesser-included offense if:
                (a) all of its statutory elements are included within the statutory
                elements of the offense charged; or
                (b) it fails to meet the definition in part (a) only in the respect that it
                contains a statutory element or elements establishing
                         (1) a different mental state indicating a lesser kind of
                         culpability; and/or
                         (2) a less serious harm or risk of harm to the same
                         person, property or public interest; or
                (c) it consists of


         5
           This statute was am ended in 2 001 , with the am endment to “govern all trials conducted on or after January
1, 2002.” T enn. Code Ann. § 40 -18-110, Com piler’s Notes (Supp. 200 2).

                                                         -14-
                       (1) facilitation of the offense charged or of an offense
                       that otherwise meets the definition of lesser-included
                       offense in part (a) or (b); or
                       (2) an attempt to commit the offense charged or an
                       offense that otherwise meets the definition of lesser-
                       included offense in part (a) or (b); or
                       (3) solicitation to commit the offense charged or an
                       offense that otherwise meets the definition of lesser-
                       included offense in part (a) or (b).
Because the elements of aggravated assault are included in the definition of especially aggravated
robbery, this court has previously held that aggravated assault is a lesser-included offense of
especially aggravated robbery under part (a) of the Burns test. State v. Jason C. Carter, No. M1998-
00798-CCA-R3-CD, 2000 Tenn. Crim. App. LEXIS 340, at *24 (Nashville, Apr. 27, 2000).

                Next, we consider whether the evidence warranted an instruction on the lesser-
included offense of aggravated assault. As a general rule,
                evidence sufficient to warrant an instruction on the greater offense
                also will support an instruction on a lesser offense under part (a) of
                the Burns test. In proving the greater offense the State necessarily has
                proven the lesser offense because all of the statutory elements of the
                lesser offense are included in the greater.
State v. Richmond, 90 S.W.3d 648, 660 (Tenn. 2002) (quoting Allen, 69 S.W.3d at 188). We
conclude that, because the evidence was sufficient to warrant an instruction on the greater offense
of especially aggravated robbery, the evidence was necessarily sufficient to warrant an instruction
on the lesser-included offense of aggravated assault. Id.; see also State v. Joel Christian Parker, No.
M2001-00773-CCA-R3-CD, 2002 Tenn. Crim. App. LEXIS 1093, at *11-12 (Nashville, Dec. 18,
2002). Accordingly, the trial court erred in failing to instruct the jury on the lesser-included offense
of aggravated assault.

               Having concluded that the trial court’s failure to instruct the jury on aggravated
assault was error, we must now determine whether the error was harmless beyond a reasonable
doubt. In determining whether it was harmless beyond a reasonable doubt not to charge a lesser-
included offense, our supreme court has held that
               the reviewing court must determine whether a reasonable jury would
               have convicted the defendant of the lesser-included offense instead
               of the charged offense. In other words, the reviewing court must
               determine whether it appears beyond a reasonable doubt that the trial
               court’s failure to instruct on the lesser-included offense did not affect
               the outcome of the trial.
Richmond, 90 S.W.3d at 662 (citing Allen, 69 S.W.3d at 191).

              The difference between aggravated assault and the lesser-included offenses which
were charged to the jury, especially aggravated robbery, aggravated robbery, robbery, and theft, is


                                                 -15-
the theft element of the charged offenses. It is undisputed that in the instant case there was a theft
of property from Mrs. Parker. Moreover, the jury was instructed on the lesser-included offenses of
aggravated robbery, robbery, and theft, but opted to convict the appellant of the indicted offense of
especially aggravated robbery. Accordingly, we conclude that the trial court’s failure to charge
aggravated assault as a lesser-included offense was harmless beyond a reasonable doubt.

4. Modifications to Jury Charge
               The appellant argues that the trial court “erred in making modifications to the jury
instructions during the time period the [c]ourt was giving instructions to the jury verbally.” The
appellant asserts that the trial court “took numerous breaks” in order to make corrections to the
instructions. However, our review of the record reflects that while charging the jury the trial court
took only one “break.” Moreover, during this break, the trial court did not modify the instructions,
but instead supplemented the charge with an instruction the trial court had inadvertently omitted.6
We find no error in the efforts of the trial court to ensure that the jury received a complete charge
of the law.

                 The appellant also contends that, because he was not provided with a copy of the
modifications to the jury instructions and because a copy of the instructions was not made a part of
record on appeal, it is likely that the jury did not receive a copy of the modifications.7 We agree that
it is mandatory that every word of the trial court’s instructions to the jury be reduced to writing and
given to the jury for deliberations. Tenn. R. Crim. P. 30(c). However, we are unable to conclude
from the record that the jury was not provided with a complete copy of the instructions. Before the
jury retired to deliberate, the trial court directed the jury, “Take the charge that I’ve just read to you
and go to the jury room.” There is no reason to believe that the jury did not do as instructed or that
the written instructions failed to include the omitted instruction. We find this issue to be without
merit.

D. Attempted First Degree Murder
1. Indictment
                The appellant asserts that the trial court should have granted a judgment of acquittal
or a new trial on count three of the indictment charging attempted first degree murder because the
indictment failed to allege an overt act and failed to name a victim. The State responds that the
indictment provided the appellant with sufficient notice that he was being charged with the attempted
first degree murder of Mrs. Parker.

               As previously noted, the United States and the Tennessee Constitutions require that
an indictment inform the accused of “the nature and cause of the accusation.” U.S. Const. amend.
VI; Tenn. Const. art. I, § 9. An indictment satisfies the constitutional requirement of notice “if it

         6
            Upon leaving the bench, the trial court stated, “Members of the Jury, give me just a minute. T here is a part
I’ve left out and everything I tell you I have to read it to you.”

         7
             Although the technical record does not contain a copy of the written instructions, the trial transcript includes
the trial co urt’s charge to the jury.

                                                           -16-
provides sufficient information (1) to enable the accused to know the accusation to which answer
is required, (2) to furnish the court adequate basis for the entry of a proper judgment, and (3) to
protect the accused from double jeopardy.” State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997).
Moreover, Tennessee Code Annotated section 40-13-202 (1997) provides that an indictment “must
state the facts constituting the offense in ordinary and concise language, without prolixity or
repetition, in such a manner as to enable a person of common understanding to know what is
intended, and with that degree of certainty which will enable the court, on conviction, to pronounce
the proper judgment . . . .”8

                  The indictment alleged the following three counts, all on a single page:
                  The Grand Jurors for the State of Tennessee, duly elected, impaneled,
                  sworn, and charged to inquire, in and for the body of the County of
                  Houston, in the State aforesaid, upon their oaths, present: That
                  JAMES RUBEN CONYERS heretofore, to-wit: on or about the 6th
                  day of April, 2001, and prior to the finding of this Indictment, in the
                  County of Houston aforesaid, then and there, did unlawfully,
                  feloniously, intentionally, and knowingly enter the habitation of
                  Mildred Parker, which was not open to the public, with intent to
                  commit Especially Aggravated Robbery and First Degree Murder and
                  did cause serious bodily injury to the said Mildred Parker, in violation
                  of [Tennessee Code Annotated section] 39-14-404, a Class B Felony,
                  all of which is against the peace and dignity of the State of Tennessee.

                  COUNT TWO:
                  And the Grand Jurors, aforesaid, upon their oaths, aforesaid, do
                  further present and say, that on or about the 6th day of April, 2001,
                  and prior to the finding of this Indictment, in the County and State
                  aforesaid, the said JAMES RUBEN CONYERS then and there, did
                  unlawfully, feloniously, intentionally, knowingly and violently, by
                  use of a deadly weapon, to-wit: a pistol and electrical cord, a further
                  description to the Grand Jurors aforesaid unknown, take from the
                  person of Mildred Parker, good and lawful currency of the United
                  States of America in the amount of Five Hundred Dollars ($500.00),
                  one (1) check in the amount of Five Hundred Dollars ($500.00) and
                  one (1) check in the amount of Two Hundred Dollars ($200.00) of the
                  value of between Five Hundred Dollars ($500.00) and One Thousand
                  Dollars ($1,000.00) and as a result Mildred Parker suffered serious
                  bodily injury, in violation of [Tennessee Code Annotated section] 39-
                  13-403, a Class A Felony, all of which is against the peace and
                  dignity of the State of Tennessee.


         8
          “Prolixity” is defined as “[t]he unnecessary and superfluous statement of facts in p leading or in evidence.”
Black’s Law Dictionary 1213 (6th ed. 1990 ).

                                                         -17-
               COUNT THREE:
               And the Grand Jurors, aforesaid, upon their oaths, aforesaid, do
               further present and say, that on or about the 6th day of April, 2001,
               and prior to the finding of this Indictment, in the County and State
               aforesaid, the said JAMES RUBEN CONYERS then and there, did
               unlawfully, feloniously, intentionally, deliberately and with
               premeditation attempt to commit the criminal offense of First Degree
               Murder, as classified in [Tennessee Code Annotated section] 39-13-
               202, in violation of [Tennessee Code Annotated section] 39-12-101,
               a Class A Felony, all of which is against the peace and dignity of the
               State of Tennessee.

                 A person commits criminal attempt who, acting with the kind of culpability otherwise
required for the offense:
                 (1) Intentionally engages in action or causes a result that would
                 constitute an offense if the circumstances surrounding the conduct
                 were as the person believes them to be;
                 (2) Acts with intent to cause a result that is an element of the offense,
                 and believes the conduct will cause the result without further conduct
                 on the person’s part; or
                 (3) Acts with intent to complete a course of action or cause a result
                 that would constitute the offense, under the circumstances
                 surrounding the conduct as the person believes them to be, and the
                 conduct constitutes a substantial step toward the commission of the
                 offense.
Tenn. Code Ann. § 39-12-101(a) (1997). An indictment charging attempt to commit a crime should
specifically allege the intent to commit the specific crime and an overt act. State v. Frederick Rydel
Walker, No. M1998-00068-CCA-R3-CD, 2000 Tenn. Crim. App. LEXIS 379, **10-11 (Nashville,
May 12, 2000). First degree murder, other than a murder committed during the perpetration or
attempted perpetration of one of the felonies or acts enumerated in Tennessee Code Annotated
section 39-13-202(a)(2) and (3), is a “premeditated and intentional killing of another.” Tenn. Code
Ann. § 39-13-202(a)(1) (Supp. 2002).

                As previously noted, the appellant argues that his conviction for attempted first degree
murder is void because count three of the indictment failed to allege an overt act and name a victim.
The issue before this court is whether the facts alleged in counts one and two remedied the failure
of count three to name the victim or allege the specific facts surrounding the charge of attempted first
degree murder.

                 In State v. Cureton, 38 S.W.3d 64, 82 (Tenn. Crim. App. 2000), this court observed
that “there is a split of authority as to whether each count of a multi-count indictment must stand
alone or whether they can be read together.”



                                                 -18-
                There is authority that there can be no aid between counts, to supply
                an omission in one of them, if the counts are not connected in some
                way, such as by internal reference, and that any such reference or
                incorporation must be express, not implicit. However, there is also
                authority that all counts of a multiple-count indictment should be read
                as a whole, and elements missing from one count can be supplied by
                another.
Id. (citing 41 Am. Jur. 2d Indictments & Informations § 96 (1995)). Tennessee courts addressing
this issue have concluded that, under certain circumstances, the counts of a multi-count indictment
may be read together. See State v. Youngblood, 287 S.W.2d 89, 91 (Tenn. 1956) (“different counts
may, within themselves, not support an indictment but if they are properly connected with preceding
counts then the two may be taken together and support an indictment”); Hayes v. State, 513 S.W.2d
144, 146 (Tenn. Crim. App. 1974) (where the first count of an indictment charging drug possession
named the controlled substance and the second count of the indictment stated only “the aforesaid
controlled substance,” the indictment was not defective ). After reviewing these cases, this court in
Cureton, 38 S.W.3d at 83, concluded that because all the counts in the indictment in that case alleged
the same victim, the same date, and were related to each other, the counts could be read together for
the purpose of providing notice to the defendant.

                In the instant case, the appellant was charged in a three-count indictment, all counts
on a single page. All three counts alleged that the offenses occurred on the same date, April 6, 2001.
Count one alleged that the appellant entered the habitation of Mildred Parker with the intent to
commit first degree murder. Count two alleged that the appellant “did . . . by use of a deadly
weapon, to-wit: a pistol and electrical cord, . . . take from the person of Mildred Parker, [a sum of
money] and as a result Mildred Parker suffered serious bodily injury.” Finally, count three of the
indictment alleged in conclusory language that the appellant “did unlawfully, feloniously,
intentionally, deliberately and with premeditation attempt to commit the criminal offense of First
Degree Murder . . . .” Count four also cited the proscriptive statute for first degree murder, which
provides in relevant part that “[f]irst degree murder is . . . [a] premeditated and intentional killing
of another.” Tenn. Code Ann. § 39-13-202(a)(1).

                Taken as a whole, we conclude that the indictment provided adequate notice to the
appellant and the trial court of the offense charged. Hill, 954 S.W.2d at 727. We further conclude
that, by naming a victim in counts one and two and alleging that the offense occurred on a date
certain, the indictment protected the appellant against double jeopardy. Id. Accordingly, we find
this issue to be without merit.

2. Election of Offenses
                 The appellant also contends that the trial court erred by not requiring the State “to
elect the particular [act] upon which it was relying for the offense of attempted first-degree murder.”
The appellant states that Mrs. Parker alleged that the appellant broke into her residence, took her
gun, attempted to strangle her with a cord, hit her in the head with an unidentified object, and then
“stomped” on her head. The appellant argues that any of these acts alleged by Mrs. Parker could


                                                 -19-
have been construed as an attempt to kill. The appellant asserts that, because the State was not
required to elect offenses, he was “deprived of his right to a unanimous jury verdict . . . , was not
[able] to prepare to defend a specific charge, [and was] denied his constitutional protection against
double jeopardy.”

                Our supreme court “has consistently held that when the evidence indicates the
defendant has committed multiple offenses against a victim, the prosecution must elect the particular
offense as charged in the indictment for which the conviction is sought.” State v. Brown, 992
S.W.2d 389, 391 (Tenn. 1999). The election requirement ensures that the defendant is able to
prepare a defense for a specific charge, protects the defendant against double jeopardy, and enables
the trial court and the appellate courts to review the legal sufficiency of the evidence. State v.
Adams, 24 S.W.3d 289, 294 (Tenn. 2000). More importantly, the election requirement “ensures that
the jurors deliberate over and render a verdict on the same offense.” Id. However, when the
evidence does not establish that multiple offenses have been committed, it is not necessary for the
State to make an election. Id. Accordingly, we must determine whether the acts committed by the
appellant were multiple discrete acts that constituted individual substantive offenses or were a
continuing course of conduct that constituted a single offense. Id.

                “Continuing offenses generally stem from a single motivation or scheme, although
such offenses can be committed by multiple discrete acts occurring over a period of time.” Id. In
State v. Pelayo, 881 S.W.2d 7, 9 (Tenn. Crim. App. 1994), the defendant stabbed the victim, the
victim fled, and then the defendant stabbed the victim again. This court concluded that, although
the assaults constituted separate acts, the acts “coalesced into an ‘unmistakable single act.’” Id. at
13. This court reached a similar conclusion in State v. Eddie Howard Pittman, No. W2000-01582-
CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 729 (Jackson, Sept. 7, 2001). In that case, the
defendant pointed a gun at the victim’s head and pulled the trigger; however, the gun misfired. Id.
at *2. The victim and the defendant then wrestled with the gun before the defendant was able to
shoot at the victim a second time, this time missing the victim. Id. This court held that these acts
“were part of a continuing assault, and constituted but one offense of attempted murder.” Id. at **6-
7.

                Likewise, we conclude that, although the acts committed by the appellant were
multiple discrete acts occurring over a period of time, they were part of a continuous attempt to
murder Mrs. Parker. The appellant first attempted to strangle Mrs. Parker with the telephone and
extension cords. When this was unsuccessful, he forced her off the sofa and banged her head into
the floor. Thereafter, he poured Clorox in her face, hit her with an unknown object, and “stomped”
on her head. The appellant’s brutal attack ended only after he believed she was dead. Because these
acts constituted the single offense of attempted first degree murder, the State was not required to
make an election. Adams, 24 S.W.3d at 294. This issue is without merit.

E. Sentencing




                                                -20-
                Finally, the appellant challenges the trial court’s application of enhancement factors
(5), (10), and (16) to enhance his sentences and the imposition of consecutive sentencing.9 When
an appellant challenges the length, range, or manner of service of a sentence, it is the duty of this
court to conduct a de novo review with a presumption that the determinations made by the trial court
are correct. Tenn. Code Ann. § 40-35-401(d) (1997). However, this presumption of correctness 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). If the record demonstrates that the trial court failed to consider the sentencing principles and
the relevant facts and circumstances, review of the sentence will be purely de novo. Id.

                  In conducting our review, this court must consider (1) the evidence, if any, received
at trial and at the sentencing hearing; (2) the presentence report; (3) the principles of sentencing and
the arguments of counsel relative to the sentencing alternatives; (4) the nature and characteristics of
the offenses; (5) any mitigating or enhancement factors; (6) any statements made by the appellant
on his own behalf; and (7) the appellant’s potential for rehabilitation or treatment. Tenn. Code Ann.
§ 40-35-102 and -103 (1997), -210 (Supp. 2002); see also Ashby, 823 S.W.2d at 168. The burden
is on the appellant to show that the sentence is improper. Tenn. Code Ann. § 40-35-401, Sentencing
Commission Comments.

                  The appellant was sentenced as a Range II multiple offender, for which the applicable
range for Class A felonies is twenty-five to forty years and for Class C felonies is six to ten years.
Tenn. Code Ann. § 40-35-112(b)(1) and (3) (1997). The presumptive sentence for a Class A felony
is the midpoint within the applicable range if there are no enhancement or mitigating factors. Tenn.
Code Ann. § 40-35-210(c). The presumptive sentence for a Class C felony is the minimum within
the applicable range if there are no enhancement or mitigating factors. Id. If the trial court finds that
such factors do exist, the court must start at the presumptive sentence, enhance the sentence within
the range as appropriate for the enhancement factors, and then reduce the sentence within the range
as appropriate for the mitigating factors. Tenn. Code Ann. § 40-35-210(e). There is no
mathematical formula for valuating factors to calculate the appropriate sentence. State v. Boggs, 932
S.W.2d 467, 475 (Tenn. Crim. App. 1996). “Rather, the weight to be afforded an existing factor is
left to the trial court’s discretion so long as the trial court complies with the purposes and principles
of the 1989 Sentencing Act and its findings are adequately supported by the record.” Id. at 475-76.

               In the instant case, the trial court found no applicable mitigating factors and applied
the following enhancement factors:10



        9
            The appellant also challenges the trial court’s application of enhancement factor (12); however, after
reviewing the transcript of the sentencing hearing, we note that the trial court did not apply this factor.

        10
             W e note that, beginning July 4, 2002, “the 2002 amendment [to Tennessee Code Annotated section 40-35-
114] added present [enhancement factor] (1) and redesignated former (1) through (22) as present (2) through (23),
respe ctively.” Tenn. Code Ann. § 40-35-114, Amendments (Supp. 2002). Ho wever, for the purposes of this opinion,
we will use the former designations applicable at the time of the appellant’s sentencing.

                                                       -21-
             (1) the appellant has a previous history of criminal convictions or
             criminal behavior in addition to those necessary to establish the
             appropriate range;
             (4) the victim of the offense was particularly vulnerable because of
             age or physical or mental disability;
             (5) the appellant treated the victim with exceptional cruelty during the
             commission of the offense;
             (6) the personal injury inflicted upon the victim was particularly
             great;
             (8) the appellant has a previous history of unwillingness to comply
             with the conditions of a sentence involving release into the
             community;
             (9) the appellant possessed or employed a firearm or other deadly
             weapon during the commission of the offense;
             (10) the appellant had no hesitation about committing a crime when
             the risk to human life was high; and
             (16) the offense was committed under circumstances under which the
             potential for bodily injury to a victim was great.
Tenn. Code Ann. § 40-35-114 (1997).

               The appellant first asserts that the trial court failed to specify to which convictions
it was applying the enhancement factors. Our review of the record reveals that the trial court stated
that enhancement factor (5) applied to the appellant’s convictions for especially aggravated burglary
and especially aggravated robbery, but failed to specify to which convictions the remaining
enhancement factors applied. Accordingly, our review will be de novo with no presumption of
correctness.

1. Enhancement Factor (5)
                The appellant contends that the trial court erred in applying enhancement factor (5)
to his conviction for attempted first degree murder. However, we note that, although the trial court
failed to specify to which offenses it was applying the remaining enhancement factors, the trial court
announced that it was applying enhancement factor (5) only to the appellant’s convictions for
especially aggravated robbery and especially aggravated burglary, which conviction this court
reduced to aggravated burglary. Nevertheless, because we are conducting a de novo review of the
appellant’s sentences, we will address the application of enhancement factor (5) to each of the
appellant’s convictions.

                Enhancement factor (5) provides that the appellant treated or allowed the victim to
be treated with exceptional cruelty during the commission of the offense. Tenn. Code Ann. § 40-35-
114(5) (1997). This factor is generally applied to cases involving abuse or torture. State v.
Williams, 920 S.W2d 247, 259 (Tenn. Crim. App. 1995). Before a trial court may apply
enhancement factor (5) to increase a sentence, the facts of the case must support a “finding of cruelty



                                                 -22-
under the statute ‘over and above’ what is required to sustain a conviction for [the] offense.” State
v. Arnett, 49 S.W.3d 250, 258-59 (Tenn. 2001).

                In the instant case, after breaking into the house, the appellant grabbed Mrs. Parker
and pulled her by her hair into the house as she attempted to escape. He subsequently forced her to
write a suicide note. As Mrs. Parker sat on the sofa, the appellant attempted to strangle her, first with
a telephone cord, then with an extension cord. Finding his attempts to be unsuccessful, the appellant
dragged Mrs. Parker off the sofa and, while continuing to strangle her, banged her head against the
floor. The appellant then hit Mrs. Parker in the head with an unknown object, poured Clorox in her
face, and “stomped” on her head, stopping only after Mrs. Parker pretended to be dead. We conclude
that these acts clearly demonstrate that the appellant treated Mrs. Parker with exceptional cruelty
“over and above” what is required for the instant offenses. See State v. Poole, 945 S.W.2d 93, 99
(Tenn. 1997) (holding that enhancement factor (5) applied to conviction for especially aggravated
robbery when the defendant knocked the victim unconscious and left her on the floor under
circumstances making it unlikely that she would be discovered); State v. Alvarado, 961 S.W.2d 136,
151 (Tenn. Crim. App. 1996) (holding enhancement factor (5) applied to convictions for aggravated
rape and aggravated burglary when the defendant held a knife to the victim's throat and stabbed, bit,
and attempted to smother her); State v. Darrin Bryant, No. W2000-01136-CCA-R3-CD, 2001 Tenn.
Crim. App. LEXIS 519, at **19-20 (Jackson, July 11, 2001) (holding that enhancement factor (5)
applied to conviction for attempted first degree murder when the defendant stabbed victim up to
eight times). Accordingly, we conclude that enhancement factor (5) applies to all three of the
appellant’s convictions.

2. Enhancement Factor (8)
                 The appellant argues that, because no proof was offered regarding the appellant’s
performance on either probation or parole, the trial court erred in applying enhancement factor (8),
i.e., the appellant had a previous history of unwillingness to comply with the conditions of a sentence
involving release into the community. Tenn. Code Ann. § 40-35-114(8) (1997). However, our
review of the presentence report reflects that, in addition to being on probation at the time of the
instant offenses, the appellant was convicted on March 3, 1981, of larceny and receiving stolen
property, and was ordered to serve one year in confinement followed by three years probation. Less
than a year later, on February 13, 1982, the appellant was arrested for second degree burglary,
attempt to commit larceny, and two weapon offenses, for which offenses he was subsequently
convicted and sentenced. We find this evidence sufficient to support the application of enhancement
factor (8).

3. Enhancement Factor (10)
                 Enhancement factor (10) provides that “[t]he defendant had no hesitation about
committing a crime when the risk to human life was high.” Tenn. Code Ann. § 40-35-114(10)
(1997). The appellant challenges the trial court’s application of enhancement factor (10), arguing
that the risk to human life is an element of the offense of attempted first degree murder. We agree.




                                                  -23-
                A trial court may not apply an enhancement factor if the factor is an essential element
of the offense charged in the indictment. Tenn. Code Ann. § 40-35-114. However, “where a high
risk to human life is established with facts separate from those necessary to establish an element of
the offense, [enhancement factor (10)] is not an essential element of the offense and may be applied
if supported by the facts.” State v. Bingham, 910 S.W.2d 448, 452 (Tenn. Crim. App. 1995). In
other words, enhancement factor (10) may be applied if the facts demonstrate that the appellant
created a high risk to the life of a person other than the named victim. Id.

                The risk to human life is an essential element of the offenses of attempted first degree
murder and especially aggravated robbery. State v. Reid, 91 S.W.3d 247, 312 (Tenn. 2002); Bryant,
No. W2000-01136-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 519, at *18. Thus, because in the
instant case the only person at risk was Mrs. Parker, enhancement factor (10) may not be applied to
the appellant’s sentences for attempted first degree murder or especially aggravated robbery.
However, enhancement factor (10) is not an essential element of aggravated burglary. State v.
Maurice Pierre Teague, No. 02C01-9704-CC-00132, 1997 Tenn. Crim. App. LEXIS 814, at *21
(Jackson, Aug. 27, 1997). Moreover, the facts and circumstances surrounding the appellant’s
commission of aggravated burglary demonstrate that by breaking into Mrs. Parker’s house with the
intent to commit especially aggravated robbery and attempted first degree murder, the appellant had
no hesitation about committing a crime in which the risk to human life was high. Accordingly, we
conclude that the evidence supports the application of enhancement factor (10) to the appellant’s
conviction for aggravated burglary.

4. Enhancement Factor (16)
                  The appellant also contends that the trial court erred in applying enhancement factor
(16), i.e., that the crime was committed under circumstances under which the potential for bodily
injury to a victim was great. Tenn. Code. Ann. § 40-35-114(16) (1997). Because “the potential for
bodily injury” is inherent in the offenses of attempted first degree murder and especially aggravated
robbery, enhancement factor (16) may not be applied to enhance the appellant’s sentences for these
convictions. Reid, 91 S.W.3d at 312; State v. Marquez Winters, No. W2001-00740-CCA-R3-CD,
2002 Tenn. Crim. App. LEXIS 872, at **25-26 (Jackson, Oct. 15, 2002). However, “the potential
for bodily injury” is not an element of the offense of aggravated burglary. Tenn. Code Ann. § 39-14-
403(a). Nevertheless, this court has previously held that “‘a trial court should not apply
[enhancement factor (16)] absent extraordinary circumstances.’” State v. David Scarbrough, No.
E1998-00931-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 512, at *73 (Knoxville, July 11, 2001)
(quoting State v. Smith, 891 S.W.2d 922, 930 (Tenn. Crim. App. 1994)). In the instant case, the
facts demonstrate such “extraordinary circumstances.” Accordingly, we conclude that enhancement
factor (16) applies to the appellant’s conviction for aggravated burglary.

5. Consecutive Sentences
                Finally, the appellant asserts that the trial court erred in ordering the appellant to serve
his sentence for attempted first degree murder consecutively to his other sentences. Under Tennessee
Code Annotated section 40-35-115 (1997), a trial court may impose consecutive sentences if the



                                                   -24-
defendant is convicted of more than one offense and the trial court finds by a preponderance of the
evidence that:
               (1) [t]he defendant is a professional criminal who has knowingly
               devoted such defendant's life to criminal acts as a major source of
               livelihood;
               (2) [t]he defendant is an offender whose record of criminal activity is
               extensive;
               (3) [t]he defendant is a dangerous mentally abnormal person so
               declared by a competent psychiatrist . . . ;
               (4) [t]he defendant is a dangerous offender whose behavior indicates
               little or no regard for human life, and no hesitation about committing
               a crime in which the risk to human life was high;
               (5) [t]he defendant is convicted of two (2) or more statutory offenses
               involving sexual abuse of a minor . . . ;
               (6) [t]he defendant is sentenced for an offense committed while on
               probation; or
               (7) [t]he defendant is sentenced for criminal attempt.

                 Regarding consecutive sentencing, the trial court stated,
                 [On count] three, attempt to commit first degree murder, I’m going
                 to give him forty years . . . and I’m going to run [this sentence
                 consecutive to counts one and two], and here is the reason why. [The
                 appellant] had count one and two as far as his crime that he had
                 completed. He committed his robbery and so on and so forth. And
                 then after he cleans [Mrs. Parker’s] hair off and takes her out of the
                 bathroom, sets her down on that couch and walks behind her and puts
                 that cord around her neck, then he’s going to kill her. That is just like
                 committing one crime today and one tomorrow. It ought to run
                 consecutive. So I’m going to run count three consecutive [to the
                 other counts].
Thereafter, the State noted that the trial court needed to specify under which criteria listed in
Tennessee Code Annotated section 40-35-115 the court was imposing consecutive sentencing. The
trial court stated that the imposition of consecutive sentences was based upon its finding that the
appellant was a professional criminal, had an extensive criminal record, was a dangerous offender,
and was sentenced for an offense while on probation. See Tenn. Code Ann. § 40-35-115(b)(1), (2),
(4), and (6).

               On appeal, the appellant argues that, because the offenses occurred during the same
criminal episode, it was error for the trial court “to treat [counts one and two] as though [they were]
committed one day and [count three] as though [it were] committed on another day.” He further
asserts that no proof was offered at the sentencing hearing to show that the appellant was a
professional criminal, a dangerous offender, or was sentenced for an offense committed while on
probation. Regardless, the trial court also announced that it was imposing consecutive sentences


                                                 -25-
based upon the appellant’s extensive criminal record. The presentence report reflects that since
1979, the appellant has been convicted of numerous felonies, including armed robbery and theft.
Thus, the appellant’s prior criminal record alone supports consecutive sentencing. This issue is
without merit.

                Although we have determined that enhancement factors (10) and (16) do not apply
to the appellant’s convictions for attempted first degree murder and especially aggravated robbery,
this does not necessarily lead to a reduction in the appellant’s sentences. State v. Winfield, 23
S.W.3d 279, 284 (Tenn. 2000). We conclude that the remaining enhancement factors and the lack
of mitigating factors support the imposition of the maximum sentences for each conviction.
Moreover, the appellant’s extensive criminal record supports the imposition of consecutive
sentencing. Based upon these findings, we affirm the forty year sentences imposed for the
convictions of especially aggravated robbery and attempted first degree murder. However, because
we previously modified the appellant’s conviction in count one to aggravated burglary, we must
reduce his sentence for this offense to ten years, the maximum for aggravated burglary, a Class C
felony. The sentences for aggravated burglary and especially aggravated robbery are to be served
concurrently, but consecutive to the sentence for attempted first degree murder, for an effective
sentence of eighty years incarceration.

                                         III. Conclusion
               For the foregoing reasons, we affirm the appellant’s convictions and sentences for
especially aggravated robbery and attempted first degree murder. However, we remand to the trial
court for the amendment of the judgment of conviction to reflect this court’s modification of the
conviction for especially aggravated burglary to aggravated burglary and to reflect the reduction in
the sentence on that conviction to ten years.




                                                      ___________________________________
                                                      NORMA McGEE OGLE, JUDGE




                                               -26-
