         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                  September 26, 2006 Session

                  STATE OF TENNESSEE v. ANTONIO GEORGE

                 Direct Appeal from the Criminal Court for McMinn County
                            No. 04-028    R. Steven Bebb, Judge



                   No. E2005-02013-CCA-R3-CD - Filed November 20, 2006


The defendant, Antonio George, was convicted of carjacking, a Class B felony, and sentenced as a
Range I, standard offender to eight years in the Department of Correction. On appeal, he argues that
(1) the evidence is insufficient to support his conviction; (2) the trial court erred in excusing a
prospective juror who had a pending criminal case; (3) the trial court erred in restricting the cross-
examination of the lead investigating officer; (4) the trial court erred in failing to charge the lesser-
included offenses of theft and robbery; and (5) the trial court erred by not giving a curative jury
instruction regarding a comment made by the prosecutor. Following our review, we reverse the
judgment of the trial court and dismiss the charge against the defendant.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed and
                                        Dismissed

ALAN E. GLENN , J., delivered the opinion of the court, in which NORMA MCGEE OGLE and J.C.
MCLIN , JJ., joined.

Randy G. Rogers, Athens, Tennessee, for the appellant, Antonio George.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General;
Jerry N. Estes, District Attorney General; and Wylie Richardson, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                              OPINION

                                                FACTS

       On December 16, 2003, the McMinn County Grand Jury indicted the defendant and two
codefendants, Aaron Davis and Antwon Cook, for carjacking as a result of their taking a motor
vehicle from Michelle Biggam in November 2003.
        At the January 13, 2005, trial of the defendant and codefendant Davis, the victim, Michelle
Biggam, testified that in November 2003 she was dating Jamichael Smith. On the evening of
November 13, 2003, she went with Smith to Eric Brown’s residence in Athens and waited in Smith’s
car, with the engine running, while he went inside. As she was sitting in the passenger’s seat, a man
opened the car door, pointed a gun toward her face, and pulled her out by the arm, saying, “Bitch,
get out.” The man then threw her over a small brick wall, and she ran to the front door of the house
and knocked because the door was locked. As Smith let her inside, Biggam told him what had
happened and he called the police. She said that the perpetrator was wearing a black, hooded sweater
and that he was an African-American, but she could not “describe exactly what he looked like in
detail.” Asked if the perpetrator had been alone, Biggam said, “When he pulled me out it’s like I just
felt other people there next to me, but I couldn’t tell you that I actually looked over and saw them,
but I just felt them there.”

        Jamichael Smith testified that he had only been inside Brown’s house for five or ten minutes
when he heard a loud noise, looked out the kitchen window, and saw two men getting in his car, a
1983 custom-painted, electric green Buick Regal. He said he had left the car running with the
parking lights and windshield wipers on. He saw one man get in on the driver’s side and a second
man get in on the passenger’s side. Biggam banged on the door and, as he let her inside, she told
him, “They pulled a gun on me and they are taking your car.” Smith said he immediately called 9-1-
1. Smith identified photographs of the interior of his car depicting where his CD player had been
“ripped out” and his work identification card lying on the seat. He denied that he had any clothing
or ski masks in the backseat of the car.

         Officer Steven Thomas of the Athens Police Department testified that on November 13,
2003, he responded to the carjacking call, which included a description of the car and the address
from where the crime had been reported. According to the call he received, the carjacked vehicle
had last been seen traveling toward Decatur Pike on Howard Street. Within a matter of minutes,
Officer Thomas saw the vehicle at the intersection of Congress Parkway and Decatur Pike, pulled
in behind it, and activated his blue lights. After the vehicle “took off through the red light at the
intersection,” Officer Thomas turned on his siren and pursued the vehicle for about forty-five
minutes. A state trooper tried to stop the vehicle, but the driver rammed the vehicle into the back
of the trooper’s car. Officer Thomas pulled his car to the right to prevent the vehicle from going
around the trooper, and the driver then rammed the vehicle car into Thomas’ car. The driver and two
passengers “started bailing out of the car before it even stopped.” According to Officer Thomas, the
driver “went out the driver’s side window, and then the rear passenger went out the same window
right after him, and then the front right passenger went out the passenger side door and they all began
running.” Officer Thomas apprehended one of the passengers whom he identified as codefendant
Davis. He said the defendant was the passenger in the backseat and was apprehended in a creek bed
about fifteen to twenty minutes later. Officer Thomas said he got “a pretty clear view” of the
defendant because “as they would hit the trooper’s car [the defendant’s] head would jerk and I could
see him look around at me as they were hitting the trooper’s car.”




                                                 -2-
        Officer Thomas said ski masks and gloves were found inside the vehicle, and a Taser gun
was found about four or five feet from the driver’s side of the vehicle. Officer Thomas subsequently
turned the seized evidence over to Detective Patrick Upton. He identified photographs of the vehicle
depicting the front console where the radio had been pulled out and the seat containing various items,
including the work identification card of Jamichael Smith, as well as photographs of two ski masks
and work gloves found in the rear of the vehicle. On cross-examination, Officer Thomas said that
codefendant Cook was the driver of the vehicle and acknowledged that no weapon was found in the
vehicle.

        Investigator Patrick Upton of the Athens Police Department testified that he investigated the
carjacking and identified the black ski masks, gloves, and Security Plus Taser gun given to him by
Officer Thomas on the night of the incident. He acknowledged that none of the items were analyzed
or fingerprinted.

        The defendant did not testify or offer any proof in his behalf.

                                             ANALYSIS

                                   I. Sufficiency of the Evidence

        The defendant argues that the evidence is insufficient to support his conviction for carjacking,
saying that the evidence was circumstantial and that he was never identified as one of the
perpetrators. The State counters that the evidence is sufficient to support the jury’s conclusion that
the defendant participated in the carjacking.

         Because a jury conviction removes the presumption of innocence with which a defendant is
initially cloaked and replaces it with one of guilt, on appeal a convicted defendant has the burden of
demonstrating that the evidence is insufficient. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.
1982). Thus, we consider “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); see also
Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury shall
be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt beyond
a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835
S.W.2d 600, 604 (Tenn. Crim. App. 1992). All questions involving the credibility of witnesses, the
weight and value to be given the evidence, and all factual issues are resolved by the trier of fact. See
State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury,
approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all
conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our
supreme court stated the rationale for this rule:

                This well-settled rule rests on a sound foundation. The trial judge and the
        jury see the witnesses face to face, hear their testimony and observe their demeanor


                                                  -3-
       on the stand. Thus the trial judge and jury are the primary instrumentality of justice
       to determine the weight and credibility to be given to the testimony of witnesses. In
       the trial forum alone is there human atmosphere and the totality of the evidence
       cannot be reproduced with a written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464,
370 S.W.2d 523 (1963)).

        A conviction based on circumstantial evidence is permitted in Tennessee. State v. Tharpe,
726 S.W.2d 896, 899 (Tenn. 1987). Whether the conviction is based upon direct or circumstantial
evidence, the standard for appellate review is the same. State v. Johnson, 634 S.W.2d 670, 672
(Tenn. Crim. App. 1982). On appeal, the State is entitled to the strongest legitimate view of the trial
evidence and all reasonable and legitimate inferences which may be drawn from the evidence. State
v. Carruthers, 35 S.W.3d 516, 558 (Tenn. 2000). The weight given to circumstantial evidence is for
the jury to determine. Williams v. State, 520 S.W.2d 371, 374 (Tenn. Crim. App. 1974).
Circumstantial evidence alone may be sufficient to convict one of a crime, if such evidence
sufficiently proves all the necessary elements. Tharpe, 726 S.W.2d at 899-900. In cases that hinge
upon circumstantial evidence, it is well settled that the proof must be consistent with the guilt of the
defendant and inconsistent with his innocence, and sufficiently strong to overcome every other
reasonable hypothesis except that of guilt. Id. at 900; State v. Bigsby, 40 S.W.3d 87, 90 (Tenn.
Crim. App. 2000).

        The defendant was convicted of carjacking, which is defined as “the intentional or knowing
taking of a motor vehicle from the possession of another by use of: (1) [a] deadly weapon; or (2)
[f]orce or intimidation.” Tenn. Code Ann. § 39-13-404.

        In brief, the evidence in this case showed that a person wearing a ski mask and with a “black
face” pulled the victim out of her boyfriend’s car. She felt that he was being assisted by others but
did not see them. She ran into the house, and her boyfriend, looking out the window, saw two men
get into his car, entering in the front on the driver and the passenger’s side. He telephoned the police
as the car was driven off. A police officer, hearing the call, waited and gave chase as the vehicle
went past him. The record does not reveal the time at which the police were called informing them
of the stolen vehicle, the time at which the officer received the call, or the time at which he spotted
the vehicle. Thus, in a nutshell, the evidence shows that two men entered the car in which the victim
was sitting and drove it away, and a short time later and approximately a mile away from the location
of the carjacking, officers spotted and began a forty-five-minute chase of the vehicle. The chase
ended when three men bailed out of the vehicle, the defendant coming from the backseat. Even
assuming that two of the men in the vehicle were the two the victim’s boyfriend had seen drive off
with it, the record does not reflect which two of the three they were. One might surmise that the
defendant was the last to enter the vehicle, since he was sitting in the backseat as the chase ended,
but there is no basis in the record for such an assumption. In short, the proof is not inconsistent with
the defendant’s having been picked up by the two carjackers during the period from when they left
the location of the carjacking until the chase began. In fact, while it would appear likely that two of


                                                  -4-
the three men who bailed out of the car were the two seen by the victim’s boyfriend, there is no way
to determine which two these were. Accordingly, we conclude that the proof is insufficient to
sustain the conviction. The charge of carjacking is dismissed.

                                II. Excusing of Prospective Juror

        The defendant next argues that the trial court erred in sua sponte excusing a potential juror
without voir dire because the juror had a pending criminal case. The State counters that the trial
court did not abuse its discretion in excusing the juror, whom the trial judge recognized from the
juror’s pending criminal case in the same court.

       During the jury selection process, the following colloquy occurred during a bench conference:

               [COUNSEL FOR CODEFENDANT DAVIS]: We just want to know why
       that juror was released, your Honor.

                THE COURT: That juror has pending criminal charges in this court. It’s sort
       of funny, I looked up and I thought he looked familiar. I just arraigned him, I mean
       he was just placed on the jury panel, and then I think arrested on a theft charges [sic].
       I told him, I said tell him until those charges are resolved he cannot serve on a jury,
       and thank him for his service.

               [DEFENSE COUNSEL]: That’s why I kicked my last two off, I was trying
       to get to him, Judge. I didn’t know that would disqualify him.

               THE COURT: It does disqualify you.

              [DEFENSE COUNSEL]: Well, just for the record, we are court appointed,
       and we object. We think that should not disqualify him. He has not been convicted
       of anything that I know of –

               THE COURT: True. I just don’t think it’s in the best interest of anybody to
       have somebody serve on a jury that’s under indictment, and I told him, I said, “You
       tell him if he’s found not guilty why we will be calling him for jury duty again, but
       he’s excused for this time.”

               [COUNSEL FOR CODEFENDANT DAVIS]: We want to object for the
       record, your Honor.

               THE COURT: Let the record show that both defendants have objected.

       “The ultimate goal of voir dire is to see that jurors are competent, unbiased, and impartial,
and the decision of how to conduct voir dire of prospective jurors rests within the sound discretion


                                                 -5-
of the trial court.” State v. Howell, 868 S.W.2d 238, 247 (Tenn. 1993). Although complaining
about the manner in which the trial court excused this juror, the defendant has not alleged that the
jury hearing the charge against him was not competent, unbiased, and impartial. Accordingly, the
record does not reflect that the trial court abused its discretion in excusing this juror.

                          III. Limited Cross-Examination of Witness

        The defendant argues that the trial court erred by restricting his cross-examination of
Investigator Upton “with regard to his failure to request fingerprints or DNA analysis on recovered
items from the alleged highjacked vehicle by ruling that if counsel asked about DNA testing or
fingerprints that such questions would allow the Court to reverse the Court’s ruling on the Motion
in Limine concerning statements of the co-defendants being tried jointly.” The State contends that
the defendant has waived this issue for failure to cite any authority in support of his claim.

        During his direct examination, Investigator Upton identified the ski masks, gloves, and Taser
gun given to him by Officer Thomas on the night of the carjacking. Defense counsel objected to the
admission of these exhibits as to relevance, and the trial court overruled the objection. Counsel for
codefendant Davis then asked Investigator Upton if any of the items had been analyzed or
fingerprinted, and he replied that they had not. During defense counsel’s cross-examination of
Investigator Upton, the following transpired:

       Q       Mr. Upton, certainly as an experienced police officer you are aware that there
       is potential for submitting garments, head dresses and such –

               THE COURT: You might ought to approach up here.

            (COUNSEL APPROACHED THE BENCH AND THE FOLLOWING
       TOOK PLACE OUT OF THE HEARING OF THE JURY:)

               THE COURT: This line of questioning could possibly open the door to your
       client’s statements if you think about it. I don’t know what all is in the statement, but
       if you keep asking along this line he might say, “No, they confessed and I didn’t need
       to.”

               [DEFENSE COUNSEL]: I don’t recall all the statements, but –

             THE COURT: I don’t either, but I’m just saying it’s a dangerous issue. Do
       you want to send the jury out and explore it further?

               [DEFENSE COUNSEL]: Your Honor, I’m not trying to create a problem but
       –




                                                 -6-
       THE COURT: I don’t want to create a problem for you or him, and so let’s
ask them to step outside.

       ....

       THE COURT: Well, let me just say this: sometimes there’s statements and
sometimes there’s extra questions asked of defendants. I don’t want you to be on the
horns of a dilemma here. He’s about to ask you why you didn’t have them tested.
Did you interview the defendants?

       MR. UPTON: Yes, I did.

       THE COURT: And did either one of them ever say they had ski masks?

       MR. UPTON: They didn’t say that they had a ski mask[] but they put
themselves in the vehicle. They didn’t say they had a ski mask.

        THE COURT: All right. Then you have got a right to ask that question. I
just didn’t want to be in a position of –

        [DEFENSE COUNSEL]: I appreciate your Honor asking that question but
I didn’t recall it, but –

       THE COURT: I felt sure it wasn’t in the written statements but I didn’t know
whether anybody told him anything or not, and I didn’t want to get you all in that
lock box, because I would wind up taking the blame for that if I do.

        [DEFENSE COUNSEL]: All right. Judge, while the jury is out[,] the
question, and I know it’s an issue that’s not simply just answered by my question, but
this Taser thing, I just want to go into the fact that Mr. Upton is aware of what those
are used for, that they are not deadly weapons, but I don’t want to waste his time if
he doesn’t know, and while the jury is out, if I ask you if that weapon, based on your
training and experience, is a Taser, is that a deadly weapon you can kill somebody
with?

       THE COURT: Of course there are a lot of lawyers now that are claiming it
is.

       ....

        MR. UPTON: There has been documented cases where they have caused
death though, that’s for sure.



                                         -7-
       THE COURT: Then that’s what he would have to answer.

         MR. UPTON: And also if he asked the question about why I didn’t do the
test[,] the statements was [sic] one of the reasons why I didn’t, and so, you know, do
I say I took the statements or –

       THE COURT: What he’s saying is the reason he didn’t have them tested is
because both the defendants admitted to being in the car. I think he would be
allowed to say that if you ask him that question.

        [DEFENSE COUNSEL]: But my dilemma is, though, you know, the lady
didn’t say anything about a ski mask or gloves, and I’m not trying to pull the wool
over your eyes, she did say something about a gun and so the Taser could actually be
confused for a gun, but there’s no testimony that these black men she described, or
the one black man she saw, she didn’t say he had on white gloves –

        THE COURT: [Defense counsel], the problem you get into in a “carjacking,”
if somebody gets in there and they’ve got weapons of any kind or force somebody out
of a car and they’ve got ski masks, who knows what they are planning to do with
those ski masks. They are relevant. I mean I don’t know about this particular case
but –

       [DEFENSE COUNSEL]: I’m not trying to argue with the Court but –

       THE COURT: Everywhere you look . . . there’s a murder and a carjacking,
a robbery and a carjacking, all these things, a jury has a right to hear that there were
ski masks in the car.

       [DEFENSE COUNSEL]: I’m just thinking out loud, Judge –

       THE COURT: Okay.

       ....

         [DEFENSE COUNSEL]: Is your Honor ruling if I ask the question, my
question was he aware that you can test for DNA on head gears and clothing and that
sort of thing?

       THE COURT: And if he says “yes” are you going to say why –

       [DEFENSE COUNSEL]: Well, he has already been asked did he do it. No,
I would stop there, but the next question would be could you verify whether or not
Mr. Smith or any of these people we are talking about had ever worn that by that test.


                                          -8-
                THE COURT: Well, how do you keep him from being able to explain why
        he did or didn’t do something? How is that fair?

                [DEFENSE COUNSEL]: Well, I guess my answer to that is I think it is, but
        if your Honor is ruling that it’s not then I won’t open that door.

              THE COURT: Well, I don’t think it’s fair for an officer, when he does
        something to say why did you do it, and when he didn’t do something why did he do
        it?

                [DEFENSE COUNSEL]: I understand, I’m not trying to argue with the
        Court, I’m just trying to get to ground zero here, your Honor.

                THE COURT: I understand. Yes, that’s my ruling.

         As we understand this issue, it arose when defense counsel was asking Investigator Upton
whether he was “aware that there is potential for submitting garments, head dresses and such,” and
the trial court interrupted by advising counsel he was getting into a “dangerous” area. After extended
discussion, defense counsel explained that he wanted to ask the witness “was he aware that you can
test for DNA on head gears and clothing and that sort of thing?” Contrary to the defendant’s
phrasing of this issue, the court did not advise counsel that he could not ask this question. Instead,
the court ruled that, in so asking, counsel would open the door for the witness to explain that he had
not sought such testing because the defendant had given a statement, which was not being utilized
at the trial because of Bruton considerations, admitting that he had been in the vehicle. Thus, the
first portion of this claim, that the trial court restricted the cross-examination of Investigator Upton,
is without merit because the record shows that this did not occur. The second portion of the claim
is that the trial court erroneously ruled that the defendant’s asking Investigator Upton whether he had
submitted the ski masks for DNA testing would open the door for Upton to explain why he had not
done so. Since the defendant did not ask the question, the court’s ruling was, and remains,
theoretical only. However, it is clear that his argument is without merit.

        It is well settled that witnesses are allowed to fully explain and provide a reasonable context
for their answers, regardless if the explanation involves prior events. See Sistrunk v. State, 630 So.
2d 147, 152 (Ala. Crim. App. 1993) (evidence of the defendant’s previous drug offenses was allowed
to correct and explain “adverse inferences” made by the opposing side); Pankow v. State, 895 So.
2d 1149, 1151 (Fla. Dist. Ct. App. 2005) (defense’s questioning and inference about evidence of a
struggle opened the door for the expert witness to show how the victim’s marks corresponded to
struggle); Funderburk v. State, 471 S.E.2d 535, 536 (Ga. Ct. App. 1996) (defense’s questions about
a chemical test opened the door for the witness to give reasons for the test not having been
performed, so as to correct a mistaken inference); Commonwealth v. Charles, 712 N.E.2d 613, 615
(Mass. App. Ct. 1999) (“[A] witness should have the opportunity to explain why he or she did or did
not do certain things which were the subject of questioning on cross examination.”); State v.



                                                  -9-
Hammond, 435 S.E.2d 798, 801 (N.C. Ct. App. 1993) (witness may testify on redirect “that her
husband [the defendant] ‘beat [her] all the time’” to explain her cross-examination testimony).

        This issue is without merit.

                                   IV. Lesser-Included Offenses

       The defendant argues that the trial court erred by denying his oral request to instruct the jury
on the lesser-included offenses of theft and robbery. The State contends that the defendant has
waived this issue because he never submitted a written request for these instructions.

        Tennessee Code Annotated section 40-18-110 requires, in pertinent part:

                 (b) In the absence of a written request from a party specifically identifying the
        particular lesser included offense or offenses on which a jury instruction is sought,
        the trial judge may charge the jury on any lesser included offense or offenses, but no
        party shall be entitled to any such charge.

                (c) Notwithstanding any other provision of law to the contrary, when the
        defendant fails to request the instruction of a lesser included offense as required by
        this section, such instruction is waived. Absent a written request, the failure of a trial
        judge to instruct the jury on any lesser included offense may not be presented as a
        ground for relief either in a motion for a new trial or on appeal.

Tenn. Code Ann. § 40-18-110(b), (c) (2003) (emphasis added). In the recent case of State v. Page,
184 S.W.3d 223, 229 (Tenn. 2006), our supreme court, reviewing the constitutionality of section
40-18-110, noted that the statute “places a duty on the defendant to request a lesser-included offense
in writing at trial to assign as error on appeal the trial court’s failure to instruct on such offenses.”
The court, concluding the statute was constitutional, explained:

        [T]he waiver of a lesser-included offense for purposes of plenary appellate review is
        constitutionally permissible. A trial court’s failure to instruct on lesser-included
        offenses is not a structural error. See State v. Allen, 69 S.W.3d 181, 190-91 (Tenn.
        2002) (Holding that failure to instruct on lesser-included offenses is subject to
        constitutional harmless error analysis). As a non-structural constitutional error, the
        omission of a lesser-included offense instruction is subject to waiver for purposes of
        plenary appellate review when the issue is not timely raised and properly preserved.
        See State v. Terry, 118 S.W.3d 355, 359 (Tenn. 2003) (defendant’s failure to request
        lesser-included offense instruction at trial or in a motion for a new trial waived
        issue). Similarly, issues involving other non-structural constitutional errors must be
        preserved to receive plenary appellate review. See State v. Gomez, 163 S.W.3d 632,
        645 (Tenn. 2005) (Sixth Amendment right to confront witnesses).



                                                  -10-
Id. at 230 (footnote omitted).

       In his brief, the defendant states that he “requested the State to charge the lesser included
offenses of theft and robbery . . . and submitted written copies of the authority contained in State v.
Dowell (Tenn. Cr. App. June 27, 2003) and T.C.A. 39-13-404 setting out the fact that lesser included
offenses are recognized under the offense of car jacking [sic].”

        At the conclusion of the State’s proof, defense counsel orally requested the trial court to
instruct the jury as to the lesser-included offenses of theft and robbery.1 In overruling the
defendant’s motion, the trial court stated: “Well, the proof is not there, and without that proof I don’t
think that a lesser included theft or robbery is appropriate. Facilitation may be, I don’t know.”

        A “defendant’s failure to request a lesser-included offense instruction in writing waives the
right to raise such omission as an issue on appeal.” Page, 184 S.W.3d at 229. Accordingly, this
issue is waived. However, we will review the trial court’s not charging lesser-included offenses
under the doctrine of plain error. Id. at 230. When determining whether such a review is
appropriate, the following factors must be established:

                 (a) the record must clearly establish what occurred in the trial court; (b) a
         clear and unequivocal rule of law must have been breached; (c) a substantial right of
         the accused must have been adversely affected; (d) the accused [must not have
         waived] the issue for tactical reasons; and (e) consideration of the error [must be]
         “necessary to do substantial justice.”

State v. Terry, 118 S.W.3d 355, 360 (Tenn. 2003) (citing State v. Adkisson, 899 S.W.2d 626, 641-42
(Tenn. Crim. App. 1994)). In addition, “[a]ll five factors must be established by the record before”
an appellate court may “recognize the existence of plain error, and complete consideration of all the
factors is not necessary when it is clear from the record that at least one of the factors cannot be
established.” Id. (citing State v. Smith, 24 S.W.3d 274, 283 (Tenn. 2000)).

        In State v. Harold Holloway, Jr., No. E2004-00882-CCA-R3-CD, 2005 WL 1981791, at *10
(Tenn. Crim. App. Aug. 16, 2005), this court held that theft and robbery were not lesser-included
offenses of carjacking. In State v. Kerry L. Dowell, No. M2002-00630-CCA-R3-CD, 2003 WL
21486978, at *16 (Tenn. Crim. App. June 27, 2003), perm. to appeal denied (Tenn. Nov. 24, 2003),
this court held, without analysis, that they were lesser-included offenses of carjacking. We agree
with the analysis in Harold Holloway, Jr. and conclude that since neither is a lesser-included offense
of carjacking, the trial court did not commit plain error in refusing to include them in the charge to
the jury.




         1
          The defendant also requested the trial court to instruct the jury on accessory after the fact and joyriding, which
the court denied. On appeal, the defendant does not challenge the court’s ruling as to those two offenses.

                                                           -11-
               V. Curative Jury Instruction Regarding Prosecutor’s Comment

        The defendant argues that the trial court erred by not giving the jury a curative instruction
to disregard a comment made by the prosecutor “on the fact that the defendant . . . did not
immediately upon being taken from a vehicle he was not driving or in control of, protesting his
innocence.” The State counters that the defendant has waived this issue for failure to object at trial
or raise it at any time before the motion for new trial.

       The comment the defendant complains of was made during the State’s closing argument
when the prosecutor said:

       Now, the evidence has shown us this: that the car was observed by the police shortly
       afterwards, and after the chase and when they finally brought this car to a stop, all
       three of the defendants were present and all three of them bailed out. No one got out
       and said, “Hey, man, I sure am glad you all finally got here, I was here against my
       will.” All three of them, according to Officer Thomas’ testimony, took off running
       at the time that they were apprehended. . . .

       After the closing arguments had been made and the trial court had instructed the jury, counsel
for codefendant Davis, in a jury-out hearing, objected to the prosecutor’s comment:

              [COUNSEL FOR CODEFENDANT DAVIS]: Your Honor, during the
       General’s closing he made the comment about why didn’t they get out and say “I’m
       not involved.” That I feel is commenting on the defendant’s right not to testify.

               THE COURT: I will overrule your objection.

However, counsel for the defendant never made an objection to the prosecutor’s comment. In his
motion for a new trial, he alleged only that the State’s “closing argument was a comment on the
defendant’s right not to testify.”

       In a nutshell, it appears that the defendant, relying on an objection made by counsel for the
codefendant after the jury instructions had been read, raises this argument for the first time on
appeal. The State responds that the argument is waived, and we agree. See Tenn. R. App. P. 36(a).

                                          CONCLUSION

       Based upon the foregoing authorities and reasoning, we reverse the judgment of the trial court
and dismiss the charge against the defendant.

                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE



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