            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE

             STATE OF TENNESSEE v. JASON C. CARTER, ET AL.

                 Direct Appeal from the Criminal Court for Davidson County
                            No. 97-A-37    Seth Norman, Judge



                   No. M1998-00798-CCA-R3-CD - Decided April 27, 2000


The defendants appealed their convictions for the especially aggravated robbery of the two victims
and vandalism of the car of one of the victims. Additionally, Carter was convicted of the unlawful
possession of a weapon. In their appeal, the defendants assert that the trial court should have
instructed as to lesser-included offense of aggravated assault, that the proof of especially aggravated
robbery was not sufficient, and that their sentences were inappropriate. Based upon our review, we
reverse the convictions of both defendants as to especially aggravated robbery because of the failure
to instruct the jury as to the lesser-included offense of aggravated robbery. The remaining
convictions are affirmed.

Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed in Part and Reversed in Part.

GLENN, J., delivered the opinion of the court, in which TIPTON, J., and RILEY, J., joined.

Lionel R. Barrett, Jr., Nashville, Tennessee, for the appellant, Jason C. Carter
Paul J. Bruno, Nashville, Tennessee, for the appellant, Richard D. Tucker.

Paul G. Summers, Attorney General and Reporter, Daryl J. Brand, Assistant Attorney General,
Victor S. Johnson, III, District Attorney General, and James W. Milam, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                             OPINION

        The defendants, Jason C. Carter and Richard D. Tucker, appeal as of right from their jury
convictions in the Criminal Court of Davidson County on two counts of especially aggravated
robbery, a Class A felony, and one count of vandalism. Additionally, defendant Carter was
convicted of the unlawful possession of a weapon. Defendant Carter was sentenced to twenty-two
years imprisonment on each especially aggravated robbery conviction to run consecutively for a total
effective sentence of forty-four years. His three-year sentence for vandalism and two-year sentence
for the unlawful possession of a weapon were to be served concurrently. Defendant Tucker was
sentenced to two years for vandalism and nineteen years imprisonment on each especially aggravated
robbery conviction. The especially aggravated robbery sentences were to be served consecutively,
while the vandalism sentence was to be concurrent, for a total effective sentence of thirty-eight years.
Defendants present the following issues:

                I.   Whether the court erred in failing to instruct the jury on the
                     lesser-included offense of aggravated assault;

                II. Whether there was sufficient evidence to support
                    convictions for especially aggravated robbery; and

                III. Whether the total effective sentences imposed are
                     excessive.

Based upon plain error, the failure to instruct as to aggravated assault, we reverse the convictions
of both defendants for especially aggravated robbery and remand for new trials, affirm the
convictions of Carter for vandalism and unlawful possession of a weapon, and affirm the conviction
of Tucker for vandalism.

                                PROCEDURAL BACKGROUND

        The Davidson County Grand Jury returned indictments charging the defendants with two
counts of especially aggravated robbery and one count of vandalism. Additionally, Carter was
indicted for unlawful possession of a deadly weapon. Defendants pleaded not guilty to all charges.
The case was tried for four days in September 1997, before a jury which returned a verdict finding
the defendants guilty as charged on all counts.

                                              FACTS

        The two victims and the two defendants in this case were young men in their twenties who
lived in Nashville. Trial testimony concerning the events of Friday night and early Saturday
morning, July 12-13, 1996, makes a truthful version difficult to sift from the testimony.
Nevertheless, the record does support the following sequence of events. The victims, Dean Bell and
Rodney (“Porky”) Durham, high school friends, were at Shooter’s, a sports bar in the Hermitage area
of eastern Nashville, on Friday night, July 12, 1996. When they left Shooter’s sometime after
midnight, Durham was driving his red Nissan and Bell was in the front passenger seat. The two
were looking for a place to get something to eat when Durham’s beeper went off. They pulled into
an Arby’s where a pay phone was situated in front of the parking area, close to Lebanon Road, so
that Durham could answer the call, which he said was from his girlfriend. Although the Arby’s was
closed, the area was well-lit. While Durham and Bell were looking for change, a small white car
with two young men in it pulled up alongside.

        There is contradictory testimony as to whether the four men knew each other. Bell testified
that he did not know either of the defendants, but that “[w]ell, I had seen one of them, maybe, just
his face looked familiar maybe.” Durham testified that he did not know or recognize either
defendant. Carter, on the other hand, testified that he had been drinking at Shooter’s with the two

                                                  -2-
victims earlier in the evening.

       Defendant Tucker was positively identified by both victims as the driver of the white car and
defendant Carter was identified as the passenger. Carter denied that he was at Arby's during the
evening or early morning hours when the robbery occurred. Tucker did not testify during the trial.

        Dean Bell, the passenger in Durham’s car, testified that Carter got out of the white car and
reached through the window of the driver’s side of Durham’s car, across Durham, and tried to grab
the keys. Durham and Carter struggled, with the defendant trying to drag Durham from the car. Bell
testified as to what happened next:

               I grabbed the car door and I was going to get out and go around the
               car, and someone come on my side of the car. The driver from the
               other car had evidently walked over and pointed a gun at my head
               while I was still sitting in the car. . . . [H]e said, give me your wallet.
               . . . I reached back with my right arm to pull my wallet out and he
               smacked me across the face with the gun.


Bell then described his appearance as he looked up, “I had already had blood all over me because
it busted my mouth wide open.” Questioned by General Milam, Bell testified to the following:

               Q. Now, what did they do to Mr. Durham when they got him
                  out of the car?

               A. They hit him and grabbed a chain he had on his neck, a little
                  gold chain. And grabbed his wallet and tried to get his
                  money, or whatever. And he hit him on the head with the
                  revolver, and hit him a few times and just . . .

               Q. Did Mr. Durham, did he have any weapon of any kind?

               A. No.

               Q. Did you have any weapon of any kind?

               A. No.

               Q. Were you able to punch either of these people or . . .

               A. No.

               Q. Okay. When they got Mr. Durham out of the car did you
                  see him resist?

                                                  -3-
               A. No.

               Q. Okay, what happened to him after they hit him over the
                  head with the gun?

               A. Well, they grabbed his chain, and they hit him over the
                  head, and they got his wallet out, and they struck him a few
                  more times, and they kind of knocked him down and he was
                  kind of unconscious, or he wasn’t alert.


        Bell, who had stayed seated in the car, yelled at the defendants to stop hitting and kicking
Durham. They then turned on Bell, demanding his wallet. Bell had hidden his recently cashed
paycheck for approximately $550 in a secret compartment of his wallet. When the defendants
expressed their anger that only $20 to $30 was in the wallet, Bell attempted to pull out more money
and in so doing smeared the contents of the wallet with his blood. Bell testified that Carter yelled
“just shoot him” to Tucker. Bell also testified that he was forced to pull a gold nugget ring from his
finger and give it to the defendants.

         Once the defendants had gotten back in the white car and started to drive off, Bell pulled
Durham into the red car and then started to use the pay phone. The defendants, seeing this, turned
back and yelled for Bell to put the phone down. This time, before driving out of the Arby’s parking
lot, the defendants vandalized Durham’s car by smashing the rear window and repeatedly kicking
the side and door of the car. Once the defendants drove off, Bell drove in the opposite direction to
the apartment of a friend, Eric Hargrove, at Arbour East Apartments.

         Another friend, Ralph David Tyree, testified that he was also going to visit Hargrove and
was just walking to the door when the victims drove up and parked. Tyree said that he “could see
that the guys were covered in blood.” Tyree also testified that Durham asked him to go back to
Arby’s and look for his class ring. According to Tyree, Durham said that “he tossed it up under the
car so it wouldn’t get taken.”

        At Eric Hargrove’s apartment, the victims attempted to assess the extent of their injuries.
Hargrove testified that Bell had “a very huge gash across his lip. He had blood all over him. His
shirt was covered in blood.” Hargrove saw Durham sitting outside and “he had a towel on his head
and I actually gave him another towel of mine. He was bleeding through the one towel. And it was
dripping down his face.” Hargrove and Tyree convinced them to let Hargrove drive them to Summit
Medical Center, approximately one-half mile back the way they had just come. The victims arrived
at the emergency room at Summit at 1:39 a.m. and were treated by Dr. Robert Roth.

       Bell testified that he “had to have stitches right here on my top lip. It was - - had a wide
gash. From my bottom lip from here to there (indicating) I had to have stitches there. And on the
back of my ear, on both sides of my ear, I had to have stitches. And where I got kneed in the groin
the doctor had to look at that because it was swollen.”

                                                 -4-
         Dr. Roth testified that Bell had “roughly four lacerations. There was a, what we call a trap
door type laceration in the area just below his nose. And then there was a check or a L-shaped
laceration below his left lip and extending laterally.” Bell also had a laceration on the front of his
left ear and a “through and through” laceration behind the left ear. Dr. Roth found Bell’s lacerations
consistent with blows from a handgun. Dr. Roth testified that Bell’s lacerations were “cosmetically
disfiguring.” Dr. Roth also found swelling of the left testicle consistent with Bell’s complaint of
being kicked in the groin area. Bell was discharged after approximately four hours.

        Rodney Durham testified that once he was out of the car, defendant Tucker, who had been
on Bell’s side of the car, came over to him and “hit me in my mouth, hit me up the side of my head.”
Durham further testified that Tucker used the barrel end of the gun. When asked how he was hit in
the head, Durham testified, “I don’t know, I just went to the ground and that’s all I really know. I
know it had to be with the gun.” Durham recalled pleading with the defendants, “don’t shoot me,
please, don’t shoot me.” Durham also recalled being helped into the car by Bell after the attack and
going to Hargrove’s apartment, but he was confused about what had happened until he arrived at the
hospital where he received stitches in his head and mouth.

       Dr. Roth testified concerning the injuries sustained by Durham:

                    He had a two and a half inch scalp laceration over the crown or
               the cranial aspect of the head which is the sagittal or midline aspect
               of the head. And there was a fairly large clot in the wound at the
               time.

                    He also had a T-shaped laceration over the lateral aspect of his
               mouth, the corner of his mouth. He had some abrasions to his
               shoulders and bony prominences, for instance, the elbow, the knee,
               and things like that.

                    ....

                    The laceration on the head, the scalp laceration, is not a fist
               laceration. To sustain a burst or a blow-out type laceration of the
               scalp, you have to be hit fairly hard with either an object or your head
               run into an object, something fairly firm, that would cause the
               implosion. A punch would never cause that type of laceration.

Dr. Roth prescribed both antibiotics and pain medication for Durham. Because of the type of wound
sustained by Durham, an X-ray was required to determine that he had not suffered an injury to the
skull itself. Durham was released after approximately two hours.

        While at the hospital, Bell and Durham were questioned by police officers and gave
consistent descriptions of the defendants and of the white car with a temporary tag in the rear
window. Bell told police that neither of their assailants wore a shirt. Police dispatchers broadcasted

                                                 -5-
the descriptions, and a report came in shortly thereafter that two individuals and a car matching the
description had been spotted at a Kroger store on Old Hickory Boulevard in Hermitage. The call
from Kroger was the result of two encounters between the defendants and employees at the Kroger.
Earlier that night, at about 11:00 p.m., employees had observed two, young, shirtless men who came
into the store and then left. Approximately two hours later, they both returned, this time wearing
shirts. One man now had blood on his pants and a bandana wrapped around one of his hands.
Employee Jeff Fitzgerald saw a bulge under the shirt of one of the individuals, and a gun was
exposed when the man moved. Fitzgerald positively identified defendant Carter as one of the two
men at the store but was unable to identify defendant Tucker or testify as to which defendant had the
gun.

        After observing the two men get into a four-door, white car with a temporary tag and circle
suspiciously around the parking lot, the Kroger night manager called the police. By the time Officer
Ronald Steele of the Metro Police Department arrived at the Kroger store, the car was gone. Officer
Steele decided to check out all the “drive-up” markets in the area. He was looking for a white, four-
door sedan driven by two white males with a drive-out tag in the rear window.

        Officer Steele soon spotted the car at a nearby RaceTrac gas station. One of the occupants
had gone to the cashier’s window, while the other was in the car when the officer approached.
Officer Steele saw a pistol, which he later identified as a Ruger Security Six .357 revolver, on the
driver’s side floorboard. Based on the description of the individuals and of the vehicle and the
presence of the gun, the officer took into custody the occupant, defendant Carter. The other man,
whom Officer Steele identified as defendant Tucker, ran into a nearby wooded area and disappeared.
Dean Bell’s bloodstained wallet was found in the backseat of the white car. Several days later, after
the victims had given positive identifications of the defendants from photographic lineups, the police
arrested both defendants pursuant to aggravated robbery warrants at the residence of defendant
Tucker’s girlfriend at Arbour East Apartments.

         Of the two defendants, only Carter testified during the trial. He denied that he had been at
the Arby's that evening or that he had robbed either of the victims. Carter said that he had known
the victim, Rodney “Porky” Durham, since they were young boys playing on a football team. Carter
testified that he, Durham, and Bell, had all been drinking together at Shooter’s on the evening of July
12, 1996; that they were “regulars” there; and that they all left together to sit in Carter’s car and
smoke marijuana. Carter testified further that Durham and Bell wanted to go to another bar, but he
did not want to drive around in his car since he did not have a valid license. The plan was for
Durham and Bell to follow Carter to Arbour East Apartments where Carter said he would leave his
car with a friend, who was the co-defendant, Tucker. Once there, the three walked to the apartment
where Tucker lived. Carter testified to the following events once Tucker opened the door and
Durham saw who it was:

               [H]e [Durham] went up under his shirt. It was a beige shirt. I seen
               a chrome gun. Then Richard [Tucker] hit him. They start[ed]
               fighting. Mr. Bell tried to jump on Richard’s back. I grabbed Mr.
               Bell. Mr. Bell then swung at me. I ducked. He hit the wall. He was

                                                 -6-
               kind of in a scrunched position, points down like his hand was
               hurting, and then I tackled him. We fell against the rail.

                    ....

               I was on top of his back, and I was striking him in the face. I was
               hitting him. He elbowed me. I kind of fell off. He got up and started
               to run. I kicked his leg, and he fell up against a brick wall. . . . It’s
               like this concrete wall, and it cuts, and it’s a rail right there. Where
               the steps are going downstairs, there’s a rail. Then Richard’s door is
               right here.

         Defendant Carter testified that the gun which Durham pulled out of his shirt fell on the
ground. After Durham and Bell left, Carter testified that he went to another friend’s house to find
out if he knew of anyone who would buy the gun. An individual Carter identified as “Troy”
answered the door. Carter testified that it was Troy who was in the car with him later at Kroger’s
and who ran into the woods at the RaceTrac gas station in the early morning hours of July 13. Carter
testified that he did not know Troy’s last name or his whereabouts. Carter was asked by defense
counsel, “Were you ever involved in a fight or robbery with these, Mr. Bell and Mr. Durham, at
Arby’s over on Lebanon Road?” Carter responded, “No, sir.”

        Defendant Tucker did not testify at trial, but his sister, Lynn Green, and her husband, Mark
Green, both testified, describing a sequence of events that corroborated the testimony of defendant
Carter concerning a fight at Tucker’s apartment. Ms. Green testified that she, her husband, Tucker,
and Tucker’s girlfriend were all at Tucker’s apartment at Arbour East when someone knocked on
the door at about 12:30 a.m. on July 13, and Tucker went to the door. Ms. Green further testified:

               Well, there was two guys standing there I didn’t know when we first
               opened the door. And one of them had - - he raised up his shirt when
               he saw Richard come to the door. And he had a gun at the top of his
               pants, and he said, “I know who you are. You are - - you’re the” - -
               then he said a cuss word, M.F. - - “that ripped me off a long time
               ago.” And then Richard pushed him out the door, and they started
               fighting.




                                                 -7-
        Mark Green, a four and one-half-year veteran of the United States Marine Corps, testified
that he heard the fighting and heard his wife, who had gone outside with Tucker, “yell he’s got a
gun.” Green testified that he then grabbed his one-year-old son and went into the kitchen with
Tucker’s girlfriend and her daughter for safety, leaving his wife at the front of the apartment. He
remained in the kitchen for approximately twenty to thirty minutes, until his wife and Tucker came
into the kitchen. He did not telephone the police.


                                            ANALYSIS

                             I. Evidence as to Serious Bodily Injury

        Defendants contend that the State failed to prove that the victims sustained serious bodily
injury, and therefore the evidence presented at trial was insufficient for a conviction for especially
aggravated robbery. Our standard of review, when the sufficiency of the evidence is challenged by
defendants, 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, 61 L.Ed.2d 560 (1979). It is
not our prerogative to reweigh the evidence. Rather, we presume that the jury has resolved all
conflicts in the testimony and drawn all reasonable inferences from the evidence in favor of the
State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832,
835 (Tenn. 1978).

       “Serious bodily injury” is defined by statute in the following way:

               “Serious bodily injury” means bodily injury which involves:

                    (A) A substantial risk of death;

                    (B) Protracted unconsciousness;

                    (C) Extreme physical pain;

                    (D) Protracted or obvious disfigurement; or

                    (E) Protracted loss or substantial impairment of a
                        function of a bodily member, organ or mental
                        faculty[.]

Tenn. Code Ann. § 39-11-106(34).

       Previously, this court has considered whether a victim's injuries could be classified as
“serious bodily injury.” In State v. Zonge, 973 S.W.2d 250, 255 (Tenn. Crim. App. 1997), perm.
app. denied (Tenn. 1998), the victim of a burglary had “suffered bruises to her shoulder and back,

                                                 -8-
a knot on her head, and four stitches.” Concluding that the pain associated with these injuries was
“not of the same degree as that associated with the other classifications of serious bodily injury,” the
court modified the defendant's conviction from especially aggravated burglary to aggravated
burglary. Id. The court considered the State's argument that these injuries resulted in “extreme
physical pain”:

                     This court addressed a similar argument in State v. Sims, 909
                S.W.2d 46 (Tenn. Crim. App. 1995). The victim in Sims received a
                broken nose, a bruised cheekbone, black and blue eyes, and a
                laceration across the bridge of her nose. Applying the ejusdem
                generis canon of statutory construction, this court explained that the
                extreme physical pain definition of serious bodily injury must be read
                as applying to the same class of injuries as those causing a substantial
                risk of death, protracted unconsciousness, protracted or permanent
                disfigurement or the loss of impairment of the use of a bodily
                member, organ or mental faculty. Sims, 909 S.W.2d at 49. Because
                the proof in Sims did not establish the type of extreme physical pain
                necessary to support a finding of serious bodily injury, this court
                modified the defendant's conviction from especially aggravated
                robbery to aggravated robbery. Id. at 50.

Zonge, 973 S.W.2d at 255.

       Likewise, in State v. Barnes, 954 S.W.2d 760, 765 (Tenn. Crim. App. 1997), the court
concluded that the victim who had received “several knots on the back of the head and bruises on
the back . . ., a burn on the . . . nose from a light bulb, and a single bite on the arm” had not sustained
“serious bodily injury.” Additionally, a “broken nose and a bruised cheekbone” resulting in
swelling, loss of teeth, five weeks missed from work, and “extreme physical pain over [the] whole
face” did not support a claim of “serious bodily injury.” State v. Sims, 909 S.W.2d 46, 48 (Tenn.
Crim. App.), perm. app. denied (Tenn. 1995).

        The testimony presented by the State was that the defendants beat the victims primarily by
using a gun and by kicking Durham when he was on the ground. A photograph of Bell’s injuries
taken the day after the attack was entered as evidence and available to the jury. Dr. Robert Roth,
attending physician at the emergency room at Summit Medical Center, testified as to the treatment
each victim received. Dr. Roth testified that Bell’s facial injuries were “disfiguring” and would
require ongoing medical attention from plastic surgeons. Additionally, Bell suffered from swelling
of the left testicle and soreness in his right hand, which he had used to fend off blows to his face.
Dr. Roth also testified that the head wound Durham suffered was a significantly large, deep, blow-
out type laceration of the skull, indicating significant force. He described the lacerations of Durham
as being more “potentially dangerous” than those of Bell. Dr. Roth said that he prescribed pain
medication for Durham because of the pain resulting from the “rather significant” blows to his head,
and the abrasions to his “shoulder, elbow and knee were rather extensive and would be somewhat
painful as the swelling persisted.” Therefore, based upon the testimony, the evidence supports the

                                                   -9-
jury’s findings that both victims suffered serious bodily injury.

                                II. Lesser-Included Instructions

        Based upon the evidence presented by the prosecution, the defendants have claimed that the
trial court should have instructed the jury as to aggravated assault.

       First, we will determine whether aggravated assault is a lesser-included offense of especially
aggravated robbery with which the defendants were charged.

        In State v. Dominy, 6 S.W.3d 472 (Tenn. 1999), our supreme court overruled State v. Trusty,
919 S.W.2d 305 (Tenn. 1996), to the extent that it had recognized “lesser grade” offenses as being
distinct from lesser-included offenses and had allowed convictions for “lesser grade” offenses which
were not lesser-included offenses under the statute for which the defendant was indicted. State v.
Burns, 6 S.W.3d 453 (Tenn. 1999), a decision released the same day as Dominy, replaced the Trusty
approach with an analysis which we will apply to this matter.

       The following definition of “lesser-included” offenses was adopted in Burns, 6 S.W.3d at
466-67:
              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

                    (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

                                                -10-
                          lesser-included offense in part (a) or (b).

        Section (a) of the Burns definition utilizes a statutory elements approach consistent with that
set out in Howard v. State, 578 S.W.2d 83, 85 (Tenn.1979):1

               [A]n offense is necessarily included in another if the elements of the
               greater offense, as those elements are set forth in the indictment
               include but are not congruent with, all the elements of the lesser.

        Applying the approach established in Burns, we conclude that aggravated assault is a lesser-
included offense of especially aggravated robbery. The State has conceded that, under the Howard
test, the elements of especially aggravated robbery, as set forth in the indictment, include the
elements of aggravated assault.

         At the conclusion of the trial in this case, the trial court instructed the jury only as to
especially aggravated robbery, vandalism, and illegal possession of a firearm. At trial, defendant
Carter had requested instruction on the lesser-included offense of aggravated assault; and the refusal
of the trial court to do so was set out as an issue both in his motion for new trial and on appeal. In
determining whether the trial court should have instructed as to the lesser-included offense of
aggravated assault, we will apply the test set out in Burns:

               First, the trial court must determine whether any evidence exists that
               reasonable minds could accept as to the lesser-included offense. In
               making this determination, the trial court must view the evidence
               liberally in the light most favorable to the existence of the lesser-
               included offense without making any judgments on the credibility of
               such evidence. Second, the trial court must determine if the evidence,
               viewed in this light, is legally sufficient to support a conviction for
               the lesser-included offense.

Burns, 6 S.W.3d at 469.


        Aggravated assault is defined at Tennessee Code Annotated § 39-13-102(a) (1997). That
statute provides, in pertinent part, that a person commits aggravated assault who:


       1
          The tests, however, may not be identical. Part (a) of the Burns test provides that an offense
is lesser-included if “all of its statutory elements are included within the statutory elements of the
offense charged[.]” Burns, 6 S.W.3d at 466. Howard, on the other hand, provides that an offense
is “necessarily included in another if the elements of the greater offense, as those elements are set
forth in the indictment, include, but are not congruent with, all the elements of the lesser.” Howard,
578 S.W.2d at 85. While the difference is of no consequence to the facts of the present case, there
may be cases in which the difference is material.

                                                 -11-
                (1) Intentionally or knowingly commits an assault as defined in
                    § 39-13-101 and:

                     (A) Causes serious bodily injury to another; or

                     (B) Uses or displays a deadly weapon.

        A person commits assault who:

                (1) Intentionally, knowingly or recklessly causes bodily injury
                    to another;

                (2) Intentionally or knowingly causes another to reasonably
                    fear imminent bodily injury; or

                (3) Intentionally or knowingly causes physical contact with
                    another and a reasonable person would regard the contact as
                    extremely offensive or provocative.

Tenn. Code. Ann. § 39-13-101(a).

        During the trial in this matter, the victims testified that they were assaulted and robbed by
the defendants. Only defendant Carter testified during the trial, and he denied that he had robbed
the victims or even been at the Arby’s parking lot that evening, where the victims testified that the
robbery occurred. Thus, given this testimony, the only two possibilities are that the incident
occurred as the victims testified, or it did not occur at all. Viewing this testimony in the “light most
favorable to the existence of the lesser-included offense without making any judgments on the
credibility of such evidence,” Burns, 6 S.W.3d at 469, we conclude that no evidence was presented
which reasonable minds could accept as to aggravated assault. Thus, we conclude that it was not
error for the trial court not to instruct the jury as to the lesser-included offense of aggravated assault.2

        However, considering the testimony and proof regarding the injuries to the victims in the
light most favorable to the defendants, the evidence regarding the nature of their injuries mandated
an instruction as to aggravated robbery. It was plain error for this instruction not to have been given
and, accordingly, we reverse the convictions of both defendants as to especially aggravated robbery


        2
         Although defendant Carter requested that the trial court instruct as to aggravated assault and
raised the court’s refusal to do so both in the motion for new trial and as an issue on appeal, Tucker
did not so argue until his reply brief was filed with this court. He had neither requested this
instruction in the trial nor raised as an issue the trial court’s failure to instruct as to the lesser-
included offense as an issue in the motion for new trial. Accordingly, as to Tucker, this issue was
waived and cannot now be raised on appeal.

                                                   -12-
and remand for a new trial. Tenn. R. Crim. P. 52(b).

                                III. Appropriateness of Sentences

        Carter and Tucker argue that their effective sentences are excessive both as to their respective
lengths and consecutive nature. When a defendant challenges the length, range, or manner of service
of a sentence, this court conducts a de novo review with a presumption that the determinations made
by the trial court are correct. See Tenn. Code Ann. § 40-35-401(d); see also State v. Anderson, 880
S.W.2d 720, 727 (Tenn. Crim. App. 1994). That presumption is conditioned on an affirmative
showing in the record that the trial court did in fact consider sentencing principles and all relevant
facts and circumstances. See State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991) (finding that the
“presumption of correctness which accompanies the trial court’s action is conditioned upon the
affirmative showing in the record that the trial court considered the sentencing principles and all
relevant facts and circumstances”). The burden is on the defendant to show that the sentence is
inappropriate. See Tenn. Code Ann. § 40-35-401 Sentencing Commission Comments. When our
review supports a conclusion that the trial court imposed a lawful sentence, “then we may not disturb
the sentence even if we would have preferred a different result.” State v. Fletcher, 805 S.W.2d 785,
789 (Tenn. Crim. App. 1991).

       In sentencing the defendants, the court stated:

                    All right. The Court has studied these matters carefully. And the
               Court finds in both cases I am going to amend the enhancement
               factors: I’ll apply number one; I will apply number eight; I’ll apply
               number nine; I’ll apply number ten; and, I’ll apply number thirteen,
               in both cases. I find no mitigating factors.

                    Under Section 39-15-402 [sic] on multiple convictions: I find
               that number two applies; I find that number four applies; and, I find
               that number six applies, with regard to both defendants.

                   It appears to me, from what I heard, that Mr. Richard Tucker has
               been honest with the Court. It appears to me, from what I heard that
               Mr. Jason Carter has not been honest with the Court. The Court is
               going to take that into consideration in the sentencing.

                     With regard to the sentencing in this case it is the judgment of
                the Court that, with regard to the Defendant Richard Tucker, Count
                One, he be sentenced to the Department of Corrections for a period
                of nineteen years as a range one standard offender at thirty percent--
                excuse me--at eighty-five percent. In Count Two he will be sentenced
                to the Department of Corrections for a period of nineteen years as a
                range one standard offender. It will run at eighty-five percent. Count


                                                 -13-
               Three, he [will] be sentenced to the Department of Corrections for a
               period of two years as a range one standard offender at thirty percent.
               Count One and Count Two will run consecutive, one with the other.
               Count Three will run concurrent.

                    With regard to the Defendant Jason Carter it’s the judgment of
               the Court, with regard to Count One, he be sentenced to the
               Department of Corrections for a period of twenty-two years. With
               regard to Count Two it’s the judgment of the Court he be sentenced
               to the Department of Corrections for a period of twenty-two years.
               With regard to Count Three it’s the judgment of the Court he be
               sentenced to the Department of Corrections for a period of three
               years. With regard to Count Four it’s the judgment of the Court he
               be sentenced to the Department of Corrections for a period of two
               years. Count One and Count Two will run consecutive, one with the
               other. Count Three and Count Four will run concurrent. That’s an
               effective forty-four year sentence at eighty-five percent.

                    With regard to Mr. Tucker, General, it is an effective thirty-eight
               year sentence at eighty-five percent.

                    That’s the judgment of the Court.3

        Both defendants were sentenced as standard offenders for a Class A felony, a status which
provides a sentencing range of fifteen to twenty-five years. See Tenn. Code Ann. § 45-35-112(a)(1).
“The presumptive sentence for a Class A felony shall be the midpoint of the range if there are no
enhancement or mitigating factors.” Id. § 40-35-210(c). If the trial court applies inappropriate
factors, the sentence’s presumption of correctness fails. See State v. Shelton, 854 S.W.2d 116, 123
(Tenn. Crim. App. 1992) (citing State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991)). In this case,
the numbered sections were recited without detail as to how they were being applied to enhance the
sentences and support consecutive sentences. Therefore, we review both the enhancement factors
and the factors supporting consecutive sentences de novo on the record with no presumption of
correctness.

                                     A. Length of Sentences


       3
         The statements were not accurate regarding the “eighty-five percent.” Tennessee Code
Annotated § 40-35-501(i)(1)-(2) provides that a person committing especially aggravated robbery
shall serve one hundred percent of the sentence imposed by the court. Credit authorized by § 41-21-
236, or other provision of law, may reduce time served up to a maximum of fifteen percent. The
credits under § 41-21-236 are not automatic but are earned by the inmate. Therefore, the accurate
statement of the time to be served by defendants on Count One and Count Two is one hundred
percent.

                                                -14-
        Tennessee Code Annotated § 40-35-114 provides for enhancement factors that the trial court
may, if appropriate and if not themselves essential elements of the offense charged in the indictment,
apply to increase the sentence within the applicable range for the offense. The trial court applied
each of the following enhancement factors:

               (1)    The defendant has a previous history of criminal
                      convictions or criminal behavior in addition to those
                      necessary to establish the appropriate range;

                      ....

               (8)    The defendant has a previous history of unwillingness
                      to comply with the conditions of a sentence involving
                      release in the community;

               (9)    The defendant possessed or employed a firearm,
                      explosive device or other deadly weapon during the
                      commission of the offense;

               (10) The defendant had no hesitation about committing a
                    crime when the risk to human life was high;

                      ....

               (13) The felony was committed while on any of the
                    following forms of release status if such release is from
                    a prior felony conviction:

                      (A) Bail, if the defendant is ultimately convicted of
                          such prior felony:

                      (B) Parole;

                      (C) Probation;

                      (D) Work release; or

                      (E) Any other type of release into the community
                          under the direct or indirect supervision of the
                          department of correction or local
                          governmental authority[.]

Tenn. Code Ann. § 40-35-114.


                                                -15-
        As to factor (1), defendant Carter’s presentence report revealed at least eight prior
convictions on charges such as assault, malicious mischief, criminal trespassing, and indecent
exposure. In 1993, he was convicted of both robbery and sexual battery and was sentenced to five
years in the workhouse. As to factor (1), Tucker’s presentence report revealed prior convictions on
three counts of burglary, four counts of theft, including two counts of theft over $10,000, and
numerous driving offenses. Thus, the record reflects the proper application of enhancement factor
(1) as both defendants.

        Factor (8) looks to the previous history of the defendant in the criminal justice system to
determine how willing the defendant has been to comply with conditions of release into the
community after conviction for an offense. All four of defendant Tucker’s theft convictions in 1995
were served in the community corrections program. He was in that program at the time he
committed a series of burglaries at a mini-storage facility. Defendant Carter had prior revocations
of probation. We conclude the record reflects the proper application of enhancement factor (8) as
to both defendants.

        Use of a deadly weapon, the condition in factor (9), is an element of the offense. Factor (10)
is also an element of the offense since “there is necessarily a high risk to human life and the great
potential for bodily injury whenever a deadly weapon is used.” State v. Nix, 922 S.W.2d 894, 903
(Tenn. Crim. App. 1995); see also State v. Hicks, 868 S.W.2d 729, 732 (Tenn. Crim. App. 1993)
(finding that factor (10), absent any proof of risk to life other than the victim’s, was an essential
element of aggravated robbery). Therefore, we conclude that neither factor (9) nor (10) was properly
applied to the defendants.

        Defendant Carter was on probation for a prior felony, and therefore factor (13) clearly was
applicable to him. See Tenn. Code Ann. § 40-35-114(13)(C). Defendant Tucker was on community
corrections at the time of his conviction, which would be applicable under this factor as “[a]ny other
type of release into the community under the direct or indirect supervision of the department of
correction or local governmental authority.” Id. § 40-35-114(13)(E). We conclude that factor (13)
was appropriately applied to Tucker.

        Thus, although the trial court erred in applying factors (9) and (10) to enhance the defendants'
sentences, we find that the remaining factors justify the sentences imposed by the trial court. We
note that defendant Tucker’s sentence of nineteen years on each especially aggravated robbery count
was less than the presumptive sentence of twenty years for a Class A felony and attribute this to the
fact that the trial judge decided to consider the fact that Tucker told a truthful account of the events
at the sentencing hearing. We, therefore, affirm the imposition of the sentences.

                               B. Consecutive Nature of Sentences

        Finally, the defendants argue that their sentences for especially aggravated robbery should
not be served consecutively. According to the statute, the ordering of consecutive sentences is purely
discretionary; nevertheless, the trial court must find by a preponderance of the evidence that at least


                                                 -16-
one of seven criteria is met. See id. § 40-35-115. The trial court applied the following criteria:

                (2)    The defendant is an offender whose record of criminal
                       activity is extensive;

                       ....

                (4)    The 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 is high;

                       ....

                (6)    The defendant is sentenced for an offense committed
                       while on probation[.]

Tenn. Code Ann. § 40-35-115(b).

        Treating these in reverse order, we note first that the State conceded that criterion six applied
only to defendant Carter and was erroneously applied by the trial court to defendant Tucker. We
agree.

       Criterion four has been specifically discussed by our supreme court. In State v. Wilkerson,
905 S.W.2d 933, 939 (Tenn. 1995), our supreme court held:

                [T]he imposition of consecutive sentences on an offender found to be
                a dangerous offender requires, in addition to the application of
                general principles of sentencing, the finding that an extended sentence
                is necessary to protect the public against further criminal conduct by
                the defendant and that the consecutive sentences must reasonably
                relate to the severity of the offenses committed.

This requirement of additional findings by the trial court has been recently limited to criterion
four—“dangerous offenders.” See State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999). The defendants’
attack on the victims indicated little regard for human life. The beatings were violent. A loaded gun
was pointed at one of the victims and was used to beat both victims. The taunt of defendant Carter
to “just kill” one of the victims speaks to the lack of concern these defendants have for human life.
Although there were no findings as to the Wilkerson criteria, we find that the record supports the
conclusion that the defendants present a danger to the public as serious offenders who freely use
drugs and loaded guns to support their use. The punishment meted out to the defendants is
substantial, but it is also reasonably related to the severity of a crime where a gun is used and victims
are severely beaten.


                                                  -17-
         Defendant Tucker argues that criterion two is unconstitutionally vague in its use of the term
“extensive” as a qualifier for a record of criminal activity. Challenges of vagueness must be
examined in light of the complaining party’s conduct and the facts of the case at hand. See Village
of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S.Ct. 1186, 1191, 71
L.Ed.2d 362 (1982). A statute is not invalid simply because it may be arguably vague in a
hypothetical instance but is clearly applicable to the complaining party. See id. Courts must indulge
every presumption in favor of validity and resolve any doubt in favor of the constitutionality of a
statute. See State v. Chavis, 617 S.W.2d 903, 905 (Tenn. Crim. App. 1980). The fact that a statute
applies in a wide variety of situations and must necessarily use words of general meaning does not
render it unconstitutionally vague. See State v. Lyons, 802 S.W.2d 590, 592 (Tenn. 1990). We find
that the defendants’ record of criminal activity was justifiably “extensive” and this criterion was met.
We, therefore, affirm the trial court’s imposition of consecutive sentences as to Tucker for the
especially aggravated robbery convictions.

                                          CONCLUSION

        Based upon the foregoing, we reverse the convictions of Carter and Tucker for especially
aggravated robbery and remand for new trials. In all other aspects, the judgments of the trial court
are affirmed.




                                                 -18-
