         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                    December 1999 Session

            STATE OF TENNESSEE v. CECIL L. GROOMES, ET AL.

                Direct Appeal from the Circuit Court for Williamson County
                 No. I-1097-381-B, I-1097-381-C   Donald P. Harris, Judge



                    No. M1998-00122-CCA-R3-CD - Filed August 10, 2000


The defendants were convicted in Williamson County of especially aggravated robbery from an
incident occurring at the Cool Springs Mall. Defendant Akins was sentenced to twenty years and
fined $1,000, while defendant Groomes was sentenced to twenty-two years and fined $4,000. Both
timely appealed, raising as issues whether Akins should have been transferred from juvenile court
and tried as an adult, whether the prosecutor improperly excused a potential juror and made
prejudicial statements in closing argument, whether the court properly instructed the jury, whether
the evidence was sufficient, whether the victim’s family and friends had improper contact with the
jurors, and whether the defendants received appropriate sentences. Based upon our review, we
affirm the judgments of the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ALAN E. GLENN, J., delivered the opinion of the court, in which JOE G. RILEY, J., joined. JAMES
CURWOOD WITT, JR., J., filed a concurring opinion.

Judy A. Oxford, Franklin, Tennessee, for the appellant, Cecil L. Groomes.
Marilynn A. Tucker, Primm Springs, Tennessee, for the appellant, Terrancé E. Akins.

Paul G. Summers, Attorney General and Reporter; Lucian D. Geise, Assistant Attorney General;
Ronald L. Davis, District Attorney General; and Derek Keith Smith, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

        The defendants, Cecil L. Groomes and Terrancé E. Akins, appeal as of right from their
convictions in a consolidated trial for the especially aggravated robbery of the victim, Jesse Puckett.
After a jury trial in the Williamson County Circuit Court on April 7-9, 1998, defendant Akins was
sentenced to twenty years at one hundred percent, based upon the trial court’s finding that he was
a violent offender pursuant to Tennessee Code Annotated § 40-35-501(i)(2)(E). Akins was also
fined $1,000. Defendant Groomes received a sentence of twenty-two years at one hundred percent
as a violent offender plus a fine of $4,000.
         Defendant Terrancé Akins, a juvenile being tried as an adult, proceeded at trial pro se with
elbow counsel but was appointed counsel for his appeal. His appellate counsel filed several briefs
and then withdrew. Substitute appellate counsel was appointed to represent Akins and has
incorporated the issues raised by Akins’s previous counsel into his brief. Therefore, we will address
all of the issues raised by Akins’s two attorneys in addition to those raised by defendant Groomes.
The defendants collectively raise the following issues for our consideration:

               (1) Whether the juvenile court judge erred in transferring
                   defendant Akins, a juvenile at the time of the alleged
                   offense, from juvenile court to be tried as an adult;

               (2) Whether the trial court erred in allowing the State to
                   exercise a peremptory challenge on the basis of race in
                   violation of Batson v. Kentucky;

               (3) Whether the trial court erred in allowing the prosecutor to
                   make improper and prejudicial statements in his closing
                   argument;

               (4) Whether the trial court erred by not letting the jury consider
                   whether the prosecution had proved the element of serious
                   bodily injury beyond a reasonable doubt;

               (5) Whether the trial court erred in refusing to instruct the jury
                   on all lesser-included offenses, including carjacking,
                   robbery, aggravated robbery, and an attempt to commit
                   these offenses;

               (6) Whether the evidence at trial was insufficient to support a
                   finding of guilt beyond a reasonable doubt on the charge of
                   especially aggravated robbery;

               (7) Whether the jury verdict is invalid because of improper
                   contact with the victim’s family and friends; and

               (8) Whether the trial court erred in failing to sentence defendant
                   Akins as an especially mitigated offender and in failing to
                   consider mitigating factors (1) and (2) in sentencing
                   defendant Groomes.

       After careful review of the record, we AFFIRM the judgment of the trial court.

                                PROCEDURAL BACKGROUND


                                                -2-
        The Williamson County Grand Jury returned indictments against the defendants, charging
them with especially aggravated robbery. Defendant Akins was transferred from juvenile court to
stand trial as an adult. Defendants Akins and Groomes pleaded not guilty. The cases were
consolidated and subsequently tried for four days in April 1998, before the jury returned a verdict
of guilty as charged for both defendants. The defendants were sentenced on June 22, 1998.

                                               FACTS

       The State’s first witness was the victim, Jesse Puckett, who described the events at the Cool
Springs Mall in Franklin, Tennessee, on August 31, 1997, that left him with a gunshot wound to the
chest. The victim testified that he and his cousin, Greg Moore, drove the victim’s 1988 blue Cadillac
to the mall between 5:00 and 5:30 p.m. The victim had just added $4,000 worth of new rims and
tires to his car. As he was looking for a parking space, the victim noticed a maroon, four-door
Cadillac Fleetwood following him as he traveled up and down several aisles. The victim parked his
car, and he and his cousin proceeded to the entrance of a store, where the victim was going to
exchange some tennis shoes. The maroon car parked several spaces up from his car, after which, the
victim saw four black males looking around and in his car. Thinking that they were about to steal
his car, the victim told his cousin to exchange the shoes, and he returned to the vehicle. At some
point, the victim saw two of the men walking toward the mall and the other two getting into the
maroon Cadillac.

         As the victim started his car and began backing out of the parking space, his driver’s side
door flew open. He testified that he saw a black male, identified as Rick “Cry Baby” Jordan, with
a pistol and another black male standing behind Jordan with a shotgun pointing upright at the victim.
At trial, the victim identified defendant Akins as the man with the shotgun.1 Meanwhile, the maroon
car backed out of its parking space and was positioned in a way that blocked the victim’s car from
exiting. Jordan ordered the victim to get out of his car, and, when the victim refused, Jordan shot
him in the chest with the pistol. Jordan then proceeded to pull the victim out of his car, and Jordan
and Akins fled the scene in the victim’s car.

        The victim described how he held his chest, which was bleeding profusely, and began calling
for help. A lady came to his aid, and an ambulance was called. The victim remained conscious and
remembered talking to the ambulance attendants. He testified that he spent two days in the
hospital’s intensive care unit in extreme pain, and chest tubes had to be inserted to treat his damaged
lung. He stayed in the regular ward of the hospital for two additional days before being released.
The victim explained that the bullet is still lodged in his body and displayed his scars from the chest
tubes and the gunshot wound to the judge and jury.

        On cross-examination, the victim admitted that his attention was on the shooter, but he stated
that the maroon Cadillac “peeled tires” and blocked him in a parallel fashion. He admitted that


        1
          Co-defendant Allen Rick “Cry Baby” Jordan pled guilty to especially aggravated robbery before the trial
began , and the o ther co-d efendan t, Oswald Nelson, w as tried as a juv enile.

                                                      -3-
defendant Groomes did not say anything to the gunmen or get out of the car. The victim admitted
that he knew Akins’s identity from the news but stated that he also remembered Akins’s face;
however, he could not specifically remember what clothing Akins had on, whether he had on a cap,
or whether his hair was long or short on the day of the robbery.

         Laura Pierce testified that she had just returned to her van from the mall on August 31, 1997,
and was watching the mall entrance for her husband to come out. She noticed a commotion to the
left and saw a group of young black men, possibly teenagers, scuffling. As her husband started out
of the mall, she heard a “pop.” She then saw the victim struggling out from among the group of
young men as if trying to get away from them. Ms. Pierce told the court that some of the men got
into the blue car, and the victim began yelling that he had been carjacked and shot. Ms. Pierce
hesitated momentarily, thinking that this might be a prank, until she saw the massive amount of
blood on the victim’s shirt. As she walked to the victim in the next aisle, she noticed there was a
trail of blood across the parking lot and that the victim’s shirt and shoes were covered with blood.
As she laid him on the ground, Ms. Pierce saw a hole in the victim’s chest and a “fountain of blood”
that was squirting out of the hole as his heart pumped. She stated that she realized the victim would
bleed to death quickly, so she used his wadded-up shirt to apply pressure on the chest wound and
called for help. Ms. Pierce related how the victim asked her if he was going to die and that she
prayed for him. After the ambulance came, Ms. Pierce took the victim’s cousin to the hospital. She
remembered that the blue car left the scene of the shooting and stated that she did not see the maroon
car.

        David Sutton, another witness at the mall, testified that he was driving northbound on
Perimeter Drive toward the Sears at the Cool Springs Mall when he noticed two black males on the
opposite side of the median running from a blue car toward a brownish, burgundy Oldsmobile or
Cadillac. The blue car was situated slightly behind the burgundy car and was sideways in the street
after impacting the curb. Sutton drove past the median and turned around to go back to the scene,
but the burgundy car sped away, and the two men were gone. The doors of the blue car had been
left open, and the engine was running. He could see that the front tire and wheel of the blue car were
virtually destroyed. The witness identified photographs of the victim’s blue Cadillac and the
defendants’ maroon Cadillac as the cars he saw that day. On cross-examination, Sutton admitted
that he could not identify any of the individuals he saw.

        Highway Patrolman Harold Gooding testified that, on August 31, 1997, he received a “be
on the lookout” radio broadcast for a rust or maroon 1985 Cadillac with a temporary tag in the left
rear window that was suspected in a carjacking at the mall. Gooding spotted a car on Old Hickory
Boulevard matching the description that had been broadcast and notified the dispatcher around 5:00
p.m. of a possible sighting. He turned and followed the vehicle. Gooding followed the car as it
made a left turn to go north on Hill Road and then observed it turning right on Woodbridge.
Knowing that this was a cul-de-sac and that his backup was on the way, Gooding turned around on
Hill Road and waited for the car to emerge from the cul-de-sac. The car appeared less than a minute
later and turned south on Hill Road. As the driver made a left on Old Hickory, Gooding stopped the
car with his backup present. Initially, he had observed at least two people in the car, but, at the time


                                                  -4-
of the stop, only the driver, defendant Groomes, was present. A cooperative Groomes was taken into
custody, and the suspect and his vehicle were searched.

        The search turned up a live 12-gauge shotgun shell in Groomes’s right front pocket and a
Remington shotgun on the rear floorboard. Gooding took photographs of the shotgun, which he
identified at trial, and gave the shotgun shell to Officer Charles Bradley. He also identified two
photographs of the maroon Cadillac as the car he stopped. On cross-examination, the trooper
admitted that he had given a written statement in which he said that the shotgun shell was found in
Groomes’s left front pocket rather than the right pocket, as he testified at trial.

         The State’s next witness was Detective Tommy Heithcock of the Franklin Police
Department, through whom a number of exhibits were placed into evidence. Detective Heithcock
testified that, on August 31, 1997, around 6:15 p.m., he responded to the scene of defendant
Groomes’s arrest on Old Hickory Boulevard. He identified the Mossberg 12-gauge shotgun that he
found in the backseat of the burgundy Cadillac, photographs that he took of the gun that day, as well
as four shotgun shells found in the car and photographs taken of the shells while they were still in
the pocket attached to the back of the front passenger seat. All were admitted into evidence.
According to Heithcock, the shotgun’s safety was off when he found it. The shotgun shell found in
Groomes’s pocket during the search was given to Heithcock by Officer Bradley, who did not testify
at trial. Due to an objection of improper foundation, the single shell was moved into evidence later
in the trial through Trooper Gooding.2

        Detective Heithcock was later called to 5552 Hill Drive in Nashville, where he recovered a
.380 Larson semiautomatic handgun that had been discovered approximately 100 yards off Hill Road
under some bushes at the home. This was the same area where the burgundy Cadillac had been
observed turning into a cul-de-sac, and some of the suspects had gotten out of the car. Heithcock
identified photographs of the house and weapon. He testified that the gun was loaded, the safety was
off, and there was a spent shell lodged in the chamber which had improperly ejected. The handgun
and the rounds found in it, including the spent round, were identified by Heithcock and also moved
into evidence.

         Detective Heitchcock’s inspection of the maroon Cadillac revealed blood on the right rear
door handle. Two photographs of the blood spatter were admitted into evidence through Detective
Heithcock’s testimony. He had also recorded the VIN number of the vehicle on the tow slip the day
of the incident and matched that number to a certified copy of the title and registration of the maroon
Cadillac showing defendant Groomes as the owner.

       The State’s next witness was co-defendant Allen Rick “Cry Baby” Jordan, who had already
pled guilty. He testified that Cecil Groomes, Terrancé Akins, and Oswald Nelson went to the Cool
Springs Mall with him on August 31, 1997, in Groomes’s burgundy Cadillac. At the time of trial,

         2
           The State recalled Trooper Gooding to the stand, who identified the single shotgun shell as the one he took
from Groom es and ga ve to Off icer Brad ley. The sh ell and two photographs tak en of the sh ell were en tered into
evidenc e.

                                                         -5-
Groomes and Jordan were nineteen years old, Akins was eighteen, and Nelson was still a juvenile.
According to Jordan, they went to the mall to look for an amplifier for Groomes’s speakers. When
they saw the victim’s blue Cadillac, Groomes said, “Look at that ride.” After both cars parked, all
four occupants of Groomes’s car followed the victim and his cousin up to the mall. Jordan testified
that he intended to get some money from the men but that his three friends were just going to the
mall. Before reaching the mall, the victim turned around and went back to his car. According to
Jordan, Groomes saw a closer parking space and asked Jordan to move the car, but Groomes ended
up going back to his car as well. Jordan retrieved a handgun from under the front seat of the car and
went to the victim’s blue Cadillac. He stated that he bought the gun from Akins about a week before
the incident. At some point, Akins and Nelson also returned to Groomes’s car. As the victim was
pulling out of his parking space, Groomes pulled his car in front of the victim’s car. Jordan stated
that he opened the driver’s side door and “drew down on him [the victim]” with the handgun. With
Akins behind him holding a shotgun,3 Jordan ordered the victim to get out of his car, but the victim
began kicking him and was accidentally shot. He then pulled the victim out of his car and told Akins
to get in the victim’s car. With Jordan driving, the two defendants sped away to catch up with
Groomes’s car, which had already left the scene. As he caught up with Groomes and applied his
brakes, Jordan was forced to swerve around Groomes’s car and hit the curb. Jordan and Akins ran
from the victim’s car, jumped into Groomes’s burgundy Cadillac, and got back on the interstate.
They noticed a state trooper following them, and Jordan, Akins, and Nelson ran from the car after
Groomes pulled into a side street off Old Hickory Boulevard. Jordan testified that he left the
handgun there. A female eventually helped them check into the Liberty Inn off Trinity Lane. Jordan
testified that he and Akins discussed their plans to leave the state.

        According to Jordan, there was no discussion among the co-defendants about robbing anyone
before the incident. When asked why Groomes had pulled his car in front of the victim’s car, Jordan
replied that he thought Groomes blocked the victim off so he could not go anywhere. Jordan
acknowledged giving a written statement to Franklin Police Detective Ray Dilworth a few days after
the shooting that said, “We was going to rob the boy but the situation changed and we ended up
carjacking.” On cross-examination, Jordan said that the previous statement was not correct. He
explained that the defendants did not take the shotgun out of Groomes’s car when they fled on foot,
because, if they were going to get caught, the shotgun was registered and the pistol was not. Jordan
admitted that he is a member of the South 40 Gangster Disciples.

        On cross-examination, Jordan stated that it was his idea to rob the victim, and he was the
only one that planned the robbery. Jordan testified that, as they were walking toward the mall, he
told Groomes that he forgot something and needed to go back to the car. Groomes asked Jordan to
move his car closer to the mall, but Jordan gave the keys back to him at the car. Jordan testified that
he did not ask Groomes to block the victim’s car. He also stated that when he hit the curb and blew
out the tires on victim’s car, Groomes was forced to stop behind him. When Jordan and Akins
jumped into Groomes’s car, Jordan still had the gun in his hand and told Groomes to drive.

         3
           Jordan testified on redirect that the shotgun was located in the back seat of Gro omes’s car. He ag reed that,
after Groomes pulled his car up and blocked the victim’s car, Akins had to get out of Groomes’s car, get the shotgun
out of the backsea t, and com e to stand b ehind Jo rdan at the victim’s ca r.

                                                          -6-
         Jordan also described how both he and Akins had been kicked out of their homes and were
staying with Groomes in a townhouse recently vacated by Groomes’s mother. Jordan testified that
he does not have a high school diploma and felt bad, homeless, left on his own, and was not working
at the time of the arrest. He agreed that Akins was under considerable stress at the time. Jordan
testified that Akins backed him up with the shotgun during the robbery, but Akins did not know it
was a carjacking and did not use the shotgun in any threatening manner or point it at the victim.
According to Jordan, Akins seemed surprised and confused after the incident. Jordan expressed
remorse for what had happened, because he did not intend for the victim to be shot, and stated that
what they did was a mistake. He denied that the defendants followed the victim’s car in the mall
parking lot or that he asked Akins to back him up.

        The next witness to testify was Tjwani (West) Cain, a resident of the Valleybrook
Apartments, whom the defendants asked to take them to a hotel. This request did not seem unusual
to her, because she knew that Akins’s mother had kicked him out of her apartment, but she did not
know the defendants had been involved in a crime. After taking them to several hotels that were too
expensive, she was able to get them checked into the Liberty Inn Hotel on Trinity Lane. Akins
spoke to her about going back to St. Louis, and Jordan wanted to go to Texas. Ms. Cain heard about
the carjacking after Labor Day and called the police. On cross-examination, Ms. Cain stated that
Akins’s hair was long and pulled straight back in a ponytail on the day he came to her apartment.

       The lead investigator from the Franklin Police Department, Detective Ray Dilworth, testified
next. On August 31, 1997, Dilworth arrived at the Cool Springs Galleria to supervise evidence
gathering and witness interviews by the other detectives. The crime scene had already been
sequestered, and the patrolmen had located the witnesses. Dilworth personally interviewed one
witness and photographed the crime scene, including the blood trail on the ground. He arrested
Akins at his mother’s Valleybrook apartment three days later on September 3. Dilworth and
Detective Hale interviewed Akins at the police station in the presence of his mother. Both Akins and
his mother signed a waiver of rights form after Akins was advised of his Miranda rights. Akins
subsequently gave the detectives a written statement, which he and his mother signed, about his
involvement in the carjacking. Dilworth read the statement to the jury as follows:

               I went on the city. I don’t remember. I stopped a while and then
               continued on to the mall. There I saw two men in a Cadillac. I
               followed them. They parked and got out and went into the mall. I got
               out [of] the car and was going to go in the mall. Then I saw one of
               the man [sic] come out of the mall and went to the car and I started
               walking back to [the] car[.] [T]he man was driving the car. Cry Baby
               and I went to the car with the gun and told him to get out. I had no
               intentions of shooting or killing nobody. I had no intention off [sic]
               carjacking. All I wanted was some money but back to the story. The
               man started kicking and saying he’s not getting out [of] the car. I’m
               not sure if that’s how the gun went off or not. Then we jump[ed] in
               the Cadillac and drove off and we hit the car on the curve and jump
               back into another car and drove back toward the way I live when I got

                                                -7-
               to this street and Cry Baby and I jump out. I had no intention of
               nobody [sic] getting hurt. During the shooting, Cry Baby went up to
               the car with the hand[gun,] and I went to the car with the shotgun and
               while we were telling him to get out [of] the car[,] the man was
               kicking and saying he’s not getting out. Then the gun went off. I’m
               not sure if Cry Baby shot him or not.

        On cross-examination, Detective Dilworth stated that Akins’s mother had paged him at 10:30
a.m. on September 3 and told him that her son was at her house and that she wanted to turn him over
to the police. Detectives Dilworth and Hale took Akins into custody approximately twenty minutes
later. The detective agreed that the time between his mother’s phone call and their arrival at her
home was enough time for Akins to have escaped. He testified that Akins was cooperative during
the arrest. Once he and his mother were advised of and waived his rights at the police station, Akins
was willing to talk to the detectives and immediately gave a statement.

        The last witness for the State was Dr. Tim VanNetta, the Vanderbilt University Medical
Center trauma surgeon who treated the victim’s gunshot wound in the hospital from August 31 until
September 4, 1997. When Dr. VanNetta first saw the victim, he was suffering from a bullet wound
that had entered his chest just to the right of his left nipple, traveled behind the breastbone, and
penetrated the middle and upper lobes of his right lung. As a result, the victim suffered from a
pneumothorax and a hemothorax (collection of air and blood in the chest cavity). The victim’s lung
was reexpanded, and an ultrasound was performed, which showed no blood around the heart.
According to Dr. VanNetta, the bullet just missed the victim’s heart, went into the lung, and lodged
in the victim’s armpit, where it still remained. It was necessary for the doctor to insert two chest
tubes in the victim to drain the blood out from around the lung and to make sure that it was not
leaking air. It was the doctor’s opinion that the victim’s injury was life-threatening, and, without
the chest tubes, he would have died.

       After this testimony, the State rested its case, and the defendants elected not to testify or put
on any evidence. Their motions for acquittal were denied by the trial court.




                                                  -8-
                                              ANALYSIS

                     Transfer of Defendant Akins from Juvenile Court

        Because defendant Akins was seventeen years old at the time of the offense, he was taken
to juvenile court following his arrest. The State then filed a petition in juvenile court requesting that
he be transferred to circuit court to be tried as an adult. A hearing was held on September 25, 1997.
The juvenile court judge granted the State’s petition after finding reasonable grounds to believe that
Akins committed the delinquent act charged, that he was not committable to an institution for the
mentally retarded or mentally ill, and that the interests of the community required that Akins be
restrained or disciplined. Akins argues that the juvenile court judge erred in granting the transfer
to adult court, because the evidence was insufficient to find the three criteria required by Tennessee
Code Annotated § 37-1-134(a)(4)(A)-(C) in order to transfer a minor from juvenile court. We
disagree.

        A child charged with a criminal act is to be treated as an adult if the court finds that there are
reasonable grounds to believe that: (1) the child committed the alleged delinquent act; (2) the child
is not committable to an institution as retarded or mentally ill; and (3) the interests of the community
require that the child be restrained or disciplined. Tenn. Code Ann. § 37-1-134(a)(4)(A)-(C) (1996).
In addition, § 37-1-134(b) lists a number of factors that the judge shall consider in deciding whether
a juvenile should be treated as an adult. These factors relate to the interests of the community and
whether the juvenile is amenable to treatment or rehabilitation through juvenile court rather than
restraint or punishment meted out through the adult court, and include:

                (1) The extent and nature of the child’s prior delinquency
                    records;

                (2) The nature of past treatment efforts and the nature of the
                    child’s response thereto;

                (3) Whether the offense was against person or property, with
                    greater weight in favor of transfer given to offenses against
                    the person;

                (4) Whether the offense was committed in an aggressive and
                    premeditated manner; and

                (5) The possible rehabilitation of the child by use of
                    procedures, services and facilities currently available to the
                    court in this state.

Tenn. Code Ann. § 37-1-134(b)(1)-(5) (1996). This list is by no means exclusive.



                                                   -9-
        On appeal of an order of transfer from juvenile court, we do not decide where the
preponderance of the evidence lies, but whether there were reasonable grounds for the juvenile court
judge to believe that the three criteria of § 37-1-134(a)(4)(A)-(C) mentioned above were present.
See State v. Strickland, 532 S.W.2d 912, 920 (Tenn. 1975), appeal dismissed, 425 U.S. 929, 96 S.
Ct. 1657, 48 L. Ed. 2d 170, cert. denied, 429 U.S. 805, 97 S. Ct. 38, 50 L. Ed. 2d 65 (1976); State
v. Layne, 546 S.W.2d 220, 224 (Tenn. Ct. App.), cert. denied (Tenn. 1976). In other words, if there
was probable cause to believe that the juvenile committed the crime and the evidence at the hearing
showed that the defendant was not mentally impaired and should be legally restrained, a juvenile
court judge’s discretionary decision to allow a juvenile to be treated as an adult should not be
disturbed on appeal. See State v. Orange, 543 S.W.2d 344, 346-47 (Tenn. Ct. App.), cert. denied
(Tenn. 1976).

       The juvenile court judge, in making his ruling to transfer Akins to adult court, stated:

               These are extraordinary proceedings. Sending a juvenile, sending a
               child to adult court is an extraordinary proceeding and there’s a very
               difficult burden placed on the state in establishing the criteria under
               which we would do that. Looking at those criteria one by one, I think
               it’s pretty clear that this child did commit this delinquent act. I think
               it’s pretty clear that this child is not mentally retarded. He’s very
               articulate, he speaks well. I think he has potential. I hope before his
               young life is entirely over that that potential can be channeled and
               developed and turned around. But he’s certainly not a young man
               who’s committable for an institution for the mentally retarded or the
               mentally ill.

               Do the interest[s] of the community require that he be put under
               restraint or discipline? I think that’s pretty clear that they do.
               Looking at the factors involved, it’s true that his prior record is not as
               extensive as some other young men that we see in juvenile court, but
               he does have a prior record and he’s been on probation . . . I think the
               past treatment efforts, the only ones we heard about were pretty
               incomplete, pretty sketchy. I don’t think he’s had a whole lot of a
               chance. I think maybe at age twelve if the courts and the system in
               Wisconsin had been able to get a hold of him and do something other
               than putting him on probation, maybe they could’ve headed some of
               this off, I don’t know.

               A heinous offense. It was not against property, although it started out
               to be a theft, but Mr. Puckett was shot, nearly killed, and I think the
               thing that sticks in my mind and makes this more certain for me is
               that nobody, none of these four guys – it’s true, Mr. Plummer, that
               Mr. Akins had a shotgun and didn’t shoot him again, and I suppose
               that militates in his favor, but he also didn’t help him. He didn’t put

                                                 -10-
                 the gun down and say, “My God, guys, what have we done? Let’s get
                 help for this young man, he’s bleeding to death on the pavement.”
                 No, he grabbed the gun, jumped in the car and took off.

                 And I don’t know about the possible rehabilitation by use of the
                 procedures, services and facilities currently available to this court.
                 I’m afraid that – he’s going to turn eighteen in November, between
                 now and his nineteenth birthday, I don’t believe that there’s much
                 likelihood that we’re going to be able to turn this young man around.

                  ....

                  And so I am granting the petition of the district attorney and I’m
                  transferring this case, jurisdiction of this case, to the Circuit Court of
                  Williamson County. . . .

        It is clear from the judge’s ruling that he considered the appropriate factors and made the
required findings in transferring Akins from juvenile court. The evidence presented at the hearing
was sufficient to give the juvenile court judge reasonable grounds to believe that Akins committed
especially aggravated robbery.4 The victim testified about the events surrounding Akins’s
participation in the carjacking with the shotgun and Akins’s escape in the victim’s car after Jordan
shot the victim in the chest. In the statement given to Detective Hale, Akins described how he,
defendant Groomes, Harris, and Jordan followed the victim’s Cadillac in the mall parking lot, where
Groomes blocked the victim’s exit from the parking space. Akins admitted to Detective Hale that
he was one of the gunmen who ordered the victim out of his car in order to rob him of his money.
After the victim was shot, Akins admitted in his statement to jumping into the victim’s car and
leaving the scene. Akins’s own testimony at the hearing showed that he “just went with it [walking
up to the victim’s car with a gun] . . . just did it . . . I know now that I should not have.” He admitted
that he wanted the victim’s money and that he and his friends had discussed robbing the victim prior
to doing so. Once Jordan had approached the victim with Akins’s handgun, Akins made the decision
to return to Groomes’s car and get a shotgun from the backseat. Akins’s participation in the crime
is virtually undisputed.

         The record likewise supports the judge’s ruling that Akins was not mentally ill or retarded.
There was testimony from his high school guidance counselor, the school librarian, his former
English teacher, his employer at Valvoline Instant Oil Change, and his mother. Nothing in any of
this testimony showed that Akins was committable to an institution for the mentally impaired. In
addition, Akins’s and his mother’s testimony at the hearing showed him to be a confused young man
who has had an extremely difficult upbringing, but not one with a committable illness. It was


        4
          Especially aggravated robbery is committed when: (1) a person commits an intentional or knowing theft of
property from the person of another by violence or putting the person in fear; (2) accomplished with a deadly weapon;
and (3) the victim suffers serious bodily injury. Tenn. Code Ann. § 39 -13-403(a).

                                                       -11-
reasonable for the juvenile court judge to believe that Akins was not committable to a mental
institution.

        Finally, the record supports the judge’s finding that it is in the best interests of the
community for Akins to be tried as an adult. Akins’s delinquent activities began at age twelve, when
he got involved with stealing cars, smoking marijuana, and drinking alcohol. In addition, his current
offense was a violent and heinous act against a person, which is given more weight by the statute.
The victim described the near fatal injuries he received, as well as the sleeplessness and soreness he
was still suffering at the time of the hearing. The bullet still remains in his body, which bears the
scars of the gunshot and tubes that had to be inserted in his side for a punctured lung. Akins himself
testified that he left the scene of the crime to elude capture, not knowing if the victim was dead or
alive and without attempting to assist the victim in any way. He also testified that he was planning
to flee to another state. Detective Allen Hale testified that Akins hid out for three days after the
shooting and turned himself in only after Jordan was arrested on September 3 because he was left
alone.

        It is also disturbing that Akins does not seem to have learned much of a lesson from his brush
with the law at age twelve. He testified at the hearing that he was fired from a job at Wal-Mart for
giving a friend free merchandise less than a year before he was involved in this violent crime. The
defendant’s choice of friends and decision to drop out of school show extremely poor judgment. The
juvenile court judge also expressed concern that there was not enough time at the defendant’s age
for him to be rehabilitated through any programs available to juveniles. Akins had his eighteenth
birthday two months after the hearing. The record supports the judge’s reasonable belief that it was
in the interest of the community that Akins be restrained or disciplined by the adult court.

        Since all three statutory criteria were met, we affirm the juvenile court judge’s decision to
transfer Akins to adult court. This issue is without merit.

                                             Batson Violation

        The defendants argue that the only African-American left in the venire was excused when
the State exercised a pretextual peremptory challenge in violation of the defendants’ equal protection
rights under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). All other
jurors were white, and the defendants are both African-American. After a careful review of the
record and applicable law, we affirm the judgment of the trial court in allowing the juror to be
excused.

       During the jury selection process, the State excused juror Danita Amos, over the defendants’
objections.5 In a jury-out conference, the prosecutor gave three reasons why he wanted to strike
Amos: (1) she indicated on the juror questionnaire that she had a relative who was charged with a


         5
         Following the challenge to Danita Am os by the State, the court said to the prosecutor, “This is no t the only
case where you have dismissed the only black juror.” Matters then proceeded as set out in this opinion.

                                                         -12-
crime or had been the subject of a criminal investigation; (2) she indicated that she considers herself
to be politically slightly liberal; and (3) she indicated that, if she was a lawyer in this case, she would
want to know how a juror felt about blacks and crime, their thoughts about blacks, and whether they
had ever been robbed by a black person. Both defendants objected to the reasons as pretextual. The
prosecutor explained to the judge that he was planning to also strike a white juror, Mr. Bradford,
because he had also indicated that he was slightly liberal.6 Since the judge could not tell what
relationship the juror had with the relative charged with a crime, an individual voir dire was
conducted with Ms. Amos. The relative turned out to be her brother, and the trial judge eventually
allowed Amos to be excused.

        The defendants allege that two white members of the jury indicated on their questionnaires
that they also had brothers accused or convicted of crimes but were not excused; therefore, the
State’s neutral reason for the peremptory challenge is not valid. In the record, we have the affidavit
of juror Linda Suggs stating that she had indicated on her juror questionnaire that her brother had
been convicted of a crime. The State argues that the defendants could have asked questions of juror
Suggs during voir dire about her brother’s conviction but chose not to. It defends the race-neutral
reasons given the trial court for excusing Amos.

        In Batson v. Kentucky, the Court held that it is a violation of a defendant’s equal protection
rights for the State to exclude all members of the defendant’s race from the jury on account of race.
Batson, 476 U.S. at 89; Woodson v. Porter Brown Limestone Co., 916 S.W.2d 896, 902 (Tenn.
1996). To challenge a peremptory strike as a Batson violation, the defendant must establish a prima
facie case of purposeful discrimination. Batson, 476 U.S. at 96; Woodson, 916 S.W.2d at 902. The
defendant must show that he is a member of a cognizable racial group, that the prosecutor exercised
a peremptory challenge to remove members of his race from the jury, and that all the relevant facts
point to an inference of a discriminatory purpose. Batson, 476 U.S. at 96; State v. Brown, 915
S.W.2d 3, 8 (Tenn. Crim. App. 1995). A defendant may show such a discriminatory purpose with
evidence of systematic racial exclusion by the prosecution, a venire that is substantially
underrepresented by that racial group, or the particular selection methods and results of the present
case, such as questions and statements made during voir dire. Woodson, 916 S.W.2d at 902, 904.
In addition, the defendant is allowed to rely on the presumption that the nature of a peremptory
challenge itself allows one who wants to discriminate to do so. Batson, 476 U.S. at 96; Woodson,
916 S.W.2d at 902.

        Once the defendant makes such a prima facie showing, the burden shifts to the State to
demonstrate a neutral reason for excluding the potential juror. Batson, 476 U.S. at 97; Woodson,
916 S.W.2d at 903. The racially-neutral reason does not have to be plausible or persuasive; it just
cannot be a reason that denies equal protection. Purkett v. Elem, 514 U.S. 765, 768-69, 115 S. Ct.
1769, 1771, 131 L. Ed. 2d 834 (1995) (long, unkept hair, mustache, and beard are sufficient racially-
neutral reasons to strike black juror). The defendant then must be given the opportunity to show that
the reason given is pretextual or inadequate. Woodson, 916 S.W.2d at 904. After hearing all of the


        6
            Mr. Bradford, a white juror, was subsequently stricken from the jury.

                                                         -13-
relevant facts, the trial court must determine whether purposeful racial discrimination has been
demonstrated based on a totality of the circumstances. See id.

        In reviewing the facts surrounding the exclusion of Amos from the jury, we must be mindful
of the proper use of peremptory strikes. It is permissible for parties to use their peremptory strikes
to eliminate those jurors who are sympathetic to the opposing side, as well as those who are the most
extreme in their perceived biases toward the striking party’s position. State v. Turner, 879 S.W.2d
819, 821 (Tenn. 1994) (citing Swain v. Alabama, 380 U.S. 202, 218-20, 85 S. Ct. 824, 831-35, 13
L. Ed. 2d 759) (1965), and Holland v. Illinois, 493 U.S. 474, 484, 110 S. Ct. 803, 809, 107 L Ed. 2d
905 (1990)). “Peremptory strikes, by definition, may be exercised for any reason unless that reason
is specifically prohibited by legislation or by judicial decision.” Turner, 879 S.W.2d at 821. In
addition, a determination of whether the prosecutor’s intent in exercising a peremptory strike is
discriminatory turns largely on the prosecutor’s credibility, which can best be gauged by his
demeanor. Batson, 476 U.S. at 98 n.21; State v. Smith, 893 S.W.2d 908, 914 (Tenn. 1994); State
v. Ellison, 841 S.W.2d 824, 827 (Tenn. 1992). Therefore, the trial court’s decision as to whether the
challenged strike is permissible is given great deference on appeal and will not be set aside unless
clearly erroneous. Woodson, 916 S.W.2d at 906. Since an attorney is allowed to rely on “gut
instinct” and experience in choosing a jury that is the most favorable to his or her side, excluding
one juror for having a relative convicted of a crime and not excluding another is not necessarily
improper. Many factors and circumstances go into an attorney’s concept of whether a juror is
favorable to his side or not, and the attorney’s judgment is acceptable unless motivated solely by
race. We find nothing in the case law that requires the prosecution to pick one factor, such as having
a relative involved in a crime, and exclude every single juror who has that factor, regardless of
whether the attorney’s gut feeling is that the particular juror would be favorable to his side. See
generally, Kelly v. Withrow, 25 F.3d 363, 367-68 (6th Cir. 1994); United States v. Valley, 928 F.2d
130, 135-36 (5th Cir. 1991).

        Our review of the record regarding the trial court’s exclusion of Amos and the retention of
Linda Suggs7 as a juror reveals no error. The trial judge was very careful in his consideration of the
peremptory challenge of Amos by the prosecution and conducted an individual voir dire to explore
the prosecution’s race-neutral reasons. Amos told the judge that her half-brother was involved in
an ongoing legal battle after being convicted of selling drugs. When asked about her answers related
to race, Amos expressed her opinion that race has a bearing on the outcome of a trial, in that a white
juror may convict a defendant just because he is black. The judge was satisfied that the close
relationship of Amos to her brother’s conviction was sufficient to exercise the peremptory challenge
and excused her. The only other black juror, Ms. Flowers, was excused for cause without objection.

        The defendants never raised any questions at trial about juror Linda Suggs, who also
indicated on the questionnaire that her brother had a conviction. An individual voir dire was also

         7
           In his brief, defendant Groomes also challenges the fact that a white juror, Donna Casey, indicated on the juror
questionnaire that her brother was accused of vandalizing a car but was not stricken from the jury by the prosecution.
No ob jection w as mad e by the d efendan t. Thus, w e have n othing in the record to review in relation to this claim and
decline to a ddress it.

                                                          -14-
conducted with Suggs as one of the jurors who indicated that she had heard about the case from the
media or other outside sources. She subsequently served on the jury. In her affidavit filed with
Groomes’s post-trial motion, Suggs stated that she did not know much about the charge against her
brother, other than the conviction was in Texas and was related to possession of drugs.

        Since the prosecution articulated race-neutral reasons for striking Amos, the burden of proof
shifted back to the defendants to show purposeful discrimination. See Purkett, 514 U.S. at 768. The
defendants have not carried that burden. We are satisfied that the trial judge used his discretion
properly in allowing the prosecution to peremptorily strike Amos and that no constitutional violation
occurred.

                               Prosecutor’s Closing Argument

        The defendants allege that the prosecutor made prejudicial and improper statements in his
closing argument. Groomes argues that the prosecutor’s references to the defendants’ actions in the
present case being consistent with their characters, statements urging the jury to vindicate the victim,
and references to making the mall safe for everyone were reversible error. The State argues that
Groomes waived his objection to statements regarding deterrence, since he did not object at trial, and
any improper statements were harmless error. Akins objected to the comments on the defendants’
character at trial. After careful review, we conclude that any improper statements by the prosecution
were harmless error.

        Wide latitude is given to both the prosecution and defense during closing argument and is
subject to the trial court’s discretion. State v. Middlebrooks, 995 S.W.2d 550, 557 (Tenn. 1999).
However, closing arguments should be based on the evidence presented and not be improper under
either the facts or the law. Id. Where the argument is found to be improper, we must decide if the
improper remarks prejudiced the defendant by affecting the verdict. Id. at 559. In making such a
determination, the following factors are considered: (1) the conduct viewed in light of the
circumstances and facts in the case; (2) any curative measures taken by the trial court and the
prosecution; (3) the prosecutor’s intent in making the improper statements; (4) the cumulative effect
of the prosecutor’s statements and other errors in the record; and (5) the relative strength and
weakness of the case. Id. at 560.

            Statements of the prosecutor regarding the current actions of each defendant being
consistent with his character were improper, unless the defendants opened the door to their own
characters. It may be that Akins cracked open that door in his cross-examination of Jordan by
eliciting responses that Akins was still working, even though he was homeless and had to walk to
work, and how surprised and confused he was after Jordan shot the victim. Akins elicited responses
from Detective Dilworth that Akins stated that he was “lost and confused,” that he did not escape
after Dilworth was called to come to his mother’s house, that he was polite and cooperative during
the arrest, and that he was concerned about the victim’s condition. Jordan also testified at trial that
he was a gang member, but Akins was not. This testimony appears to have been intended to show
that the robbery was not consistent with Akins’s character. But, in any event, in view of the judge’s
instruction to the jury that statements of counsel are not evidence and in light of the strength of the

                                                 -15-
case against both defendants, we find no prejudice to the defendants or effect on the verdict from
these statements. See State v. Tyson, 603 S.W.2d 748, 754 (Tenn. Crim. App.), perm. app. denied
(Tenn. 1980) (reference to defendants as rats improper but harmless error). This error was harmless.

        Likewise, the prosecutor’s statements that the jurors “cannot condone this activity in our
county,” “set the standard for how safe our county is,” and “have to let these individuals know . . .
you can’t do that in a civilized society” basically asked the jurors to be the conscience of the
community with their verdict. It is not necessarily improper for the prosecutor to appeal to the jury
to be the conscience of the community. State v. Patterson, 966 S.W.2d 435, 446 (Tenn. Crim. App.
1997); State v. Pulliam, 950 S.W.2d 360, 368 (Tenn. Crim. App. 1996), perm. app. denied (Tenn.
1997). However, the prosecutor also made statements that border on asking the jury to deter future
crimes with their verdict, which was improper:

               People at the mall have a right to be free from crime. They have a
               right to go there and shop and to enjoy life without having this thing
               shoved in their chest. They have a right to that, and I ask you. . . I ask
               you, Ladies and Gentlemen, on behalf of the people of the State of
               Tennessee, to find these two people guilty of what they have been
               indicted for, which is especially aggravated robbery.

        The prosecutor could have replaced “people” with the victim’s name and comported with the
evidence, so we do not find these remarks to be so prejudicial or inflammatory to have affected the
verdict. The trial judge also instructed the jury to disregard statements of counsel that did not
comport with the evidence presented, and the jury is presumed to have followed the judge’s
instructions. See State v. Carter, 988 S.W.2d 145, 152 (Tenn. 1999); State v. Brewer, 932 S.W.2d
1, 27 (Tenn. Crim. App.), perm. app. denied (Tenn. 1996). This error is harmless.

                                    Sufficiency of the Evidence

        Defendant Groomes asserts that the evidence at trial was insufficient to sustain a guilty
verdict against him for especially aggravated robbery. The defendant is initially cloaked with a
presumption of innocence, but this presumption is lost following a jury verdict. Thus, on appeal,
the defendant has the burden to prove that the evidence is insufficient. State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982). We must affirm the conviction, unless the evidence at trial was so deficient
that no rational trier of fact could have found all of the essential elements of the convicting crime
beyond a reasonable doubt. Tenn. R. App. P. 13(e); State v. Cazes, 875 S.W.2d 253, 259 (Tenn.
1994). This applies to convictions based on either direct or circumstantial evidence or a
combination of the two. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.), perm. app.
denied (Tenn. 1990). In determining the sufficiency of the evidence, we do not reweigh the evidence
or substitute our own inferences for those of the jury. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.
1978). In addition, we give the strongest legitimate view of the evidence and all reasonable
inferences to the State. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992), cert. denied, 507 U.S. 954,
113 S. Ct. 1368, 122 L. Ed. 2d 746 (1993). With these principles in mind, we turn to the evidence.


                                                 -16-
       The defendant was convicted of especially aggravated robbery, which is defined in
Tennessee Code Annotated § 39-13-403 as robbery: (1) accomplished with a deadly weapon; and
(2) where the victim suffers serious bodily injury. Robbery is defined in Tennessee Code Annotated
§ 39-13-401 as: (a) the intentional or knowing theft of property from the person of another by
violence or putting the person in fear.

        At trial, there was a plethora of evidence supporting Groomes’s conviction. The victim
described in detail how the defendants followed him, were looking at his car, and how Groomes
blocked his car while Jordan and Akins robbed him. There is no doubt that the victim suffered a
painful and life-threatening injury from being shot point-blank in the chest. The victim’s testimony,
as well as that of Laura Pierce and Dr. VanNetta, was sufficient for the jury to find that Groomes,
as well as Akins, meant to rob the victim, who sustained serious bodily injury as a result. The
testimony is undisputed that Akins and Jordan took the victim’s car in the robbery. The testimony
from Jordan about the shooting and flight, the testimony from Trooper Gooding and the Franklin
police officers involved in the arrest of Groomes and Akins, and the testimony of Tjwani Cain, who
helped the defendants rent a hotel room to hide out, further supported the essential elements of the
offense and allowed the jury to infer guilt from the defendants’ flight. The jury simply did not
believe Groomes’s story that he was just backing out his car to move it to a closer parking space and
was not involved in the robbery. There is no merit to this issue.

               Serious Bodily Injury and Lesser Offense of Carjacking

         Defendant Akins next argues that the trial judge erred in taking the issue of serious bodily
injury away from the jury by only giving instructions on especially aggravated robbery and
facilitation of especially aggravated robbery, which both require serious bodily injury to the victim.
This is actually a challenge to the court’s decision not to instruct on “bodily injury” or on the lesser
offense of carjacking, which does not include serious bodily injury to the victim. In addition,
defendant Groomes argues that the trial court erred by not giving an instruction on aggravated
robbery, robbery, carjacking, and an attempt to commit these offenses. The State argues that the jury
was instructed on all elements of especially aggravated robbery, including serious bodily injury, and
that an instruction on the lesser offenses was not required. We agree with the State and conclude that
the judge was not required to give an instruction on “bodily injury” or any of the other offenses
listed. This issue is without merit.

        The judge charged the jury as follows:

                For you to find the defendant guilty of this offense [especially
                aggravated robbery], the state must have proven beyond a reasonable
                doubt the existence of each of the following essential elements:
                ....

                     (6) that the alleged victim suffered serious bodily injury.

                     ....

                                                 -17-
                   “Serious bodily injury” means bodily injury which involves a
                   substantial risk of death; protracted unconsciousness; extreme
                   physical pain; protracted or obvious disfigurement; or protracted loss
                   or substantial impairment of a function of a bodily member, organ, or
                   mental faculty.

        The judge also gave an instruction on facilitation of especially aggravated robbery, which
also requires that the victim suffer serious bodily injury. There was no doubt from the trial court’s
instruction that the jury was required to find that the victim sustained serious bodily injury under the
legal definition beyond a reasonable doubt in order to return a guilty verdict, which they did.

        Thus, as to both defendants, the trial court instructed as to especially aggravated robbery, a
Class A felony, and facilitation of especially aggravated robbery, a Class B felony. Both defendants
argue that the court should have also instructed as to carjacking, a Class B felony. Additionally,
Groomes claims that the jury should have been instructed as to aggravated robbery, a Class B felony,
robbery, a Class C felony, and the attempt to commit each of these offenses, which is one
classification below the most serious crime attempted.

        We will now consider whether it was error for the court not to have instructed as to the
additional offenses set out by the defendants. By statute, a trial court is required to instruct on any
lesser-included offenses that are supported by the evidence at trial, regardless of whether any request
is made. Tenn. Code Ann. § 40-18-110; State v. Eric Flemming, No. M1997-0073-SC-R11-CD,
2000 WL 520933 (Tenn. Apr. 3, 2000); State v. Burns, 6 S.W.3d 453, 464 (Tenn. 1999); Elder, 982
S.W.2d at 876-77. Our supreme court has recently given us a step-by-step analysis for determining
when an instruction is required on a lesser-included offense. At the same time, the court also
overruled the language in State v. Trusty, 919 S.W.2d 305 (Tenn. 1996), that made a distinction
between lesser “grades” and “lesser-included” offenses, which was causing much confusion in our
courts. Burns, 6 S.W.3d at 464-65; State v. Dominy, 6 S.W.3d 472, 477 (Tenn. 1999).

        Under Burns, trial courts must now engage in a two-step process that: (1) requires the court
to determine whether the offense in question fits the Burns court’s definition of a lesser-included
offense,8 and, if the answer to step one is “yes,” then (2) the court must determine if the evidence

       8
           An offense is a lesser-included offense if:

                   (a)   all of its statutory elements are included within the statutory ele ments
                         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 o r risk of harm to the same p erson, pro perty or p ublic interest;
                                 or
                   (c)     it consists of
                                                                                                              (continu ed...)

                                                           -18-
supports an instruction on that lesser offense. Burns, 6 S.W.3d at 467. If the answer to step one is
“no,” then an instruction is not required, even if the evidence warrants one. Id.

      Robbery is defined in Tennessee Code Annotated § 39-13-401(a) as “the intentional or
knowing theft of property from the person of another by violence or putting the person in fear.”

       Aggravated robbery is defined in Tennessee Code Annotated § 39-13-402 as robbery plus:

                   (1) Accomplished with a deadly weapon or by display of any
                       article used or fashioned to lead the victim to reasonably
                       believe it to be a deadly weapon; or

                   (2) Where the victim suffers serious bodily injury. (emphasis added)

       Especially aggravated robbery is defined in § 39-13-403(a) as robbery:

                   (1) Accomplished with a deadly weapon; and

                   (2) Where the victim suffers serious bodily injury. (emphasis added)

       Finally, carjacking is defined by § 39-13-404 as:

                   (a) the intentional or knowing taking of a motor vehicle from
                       the possession of another by use of:


                            (1) A deadly weapon; or

                            (2) Force or intimidation.

        Applying the first step of the Burns analysis, we conclude that carjacking is not a lesser-
included offense of especially aggravated robbery, since it has an essential element, the taking of a
motor vehicle, that is not present in the offense charged. Thus, the trial court was correct not to
instruct on carjacking.

       8
           (...continued)
                            (1)   facilitation of the offense charged or of an offe nse that oth erwise m eets the
                                  definition of lesser-included offense in part (a) or (b); or
                            (2)   an attempt t o com mit the off ense cha rged or a n offense that otherw ise 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).

       Burns, 6 S.W.3d at 466-67.



                                                            -19-
         Aggravated robbery, robbery, and an attempt to commit these offenses all fall under the
Burns definition of lesser-included offenses, but that is not where our inquiry ends. We must decide
if the evidence at trial warranted an instruction on these offenses under the second step of the Burns
analysis. In completing this step, we must view the evidence in the light most favorable to the
lesser-included offense, without making judgments on the credibility of witnesses or evidence, and
determine whether any evidence exists that reasonable minds could accept as to the lesser-included
offense. Next, we must determine if the evidence, when viewed in this light, is legally sufficient to
support a conviction on the lesser offense. Burns, 6 S.W.3d at 469.

        There were a number of undisputed facts in this case: the victim had a life-threatening
injury; Jordan was the shooter; Akins held a shotgun and stood behind Jordan during the robbery;
Groomes’s car blocked the victim’s car from backing out; Jordan and Akins took the victim’s car
and wrecked it; all of the defendants fled the scene; and Jordan and Akins hid out for three days
before being captured. However, there are three scenarios that the rest of the evidence could have
raised. First, there is the victim’s version that the defendants followed him and acted in concert to
rob him. This is also supported by statements made by Akins and Jordan to police that the four
defendants followed the victim and planned to rob him. Second, there is the version raised by Akins,
through his questioning of witnesses, that the defendants had no plans to rob the victim and that
Akins just went along with Jordan without having any intent to take the victim’s car or to shoot him.
A third version was raised by Groomes through cross-examination, that the defendants had gone to
the mall to buy an amplifier, that he did not know what Jordan had planned to do, and that he was
simply backing his car out to move it to a closer parking space when he blocked the victim’s car.
He left the scene when he realized what Jordan was doing. However, he allowed Jordan and Akins
to flee in his car because he was forced to stop when the victim’s car hit the curb, and Jordan still
had a gun in his hand when he approached Groomes’s car. Coupled with the undisputed facts, we
conclude that the only evidence presented that a reasonable mind could accept was especially
aggravated robbery as to all three defendants (version 1), facilitation of a felony9 (version 2 or 3),
or acquittal. There was no evidence that reasonable minds could accept that the victim did not incur
serious bodily injury or that the robbery was accomplished without a deadly weapon. Both elements
were undisputably present, so there was no need to instruct on aggravated robbery or simple robbery.
The jury simply did not believe the defendants’ versions and found them guilty of the greater charge
rather than merely facilitation of Jordan’s robbery.

       Likewise, an instruction for attempted especially aggravated robbery was not required. Even
though this meets the exception of Burns as a lesser-included offense, there was no evidence that
reasonable minds could accept that either Akins or Groomes acted with the intent necessary for
especially aggravated robbery but merely went beyond mere preparation toward the commission of
the robbery or intentionally engaged in conduct designed to rob the victim, but that the crime was


         9
           Facilitation of a felony under T ennessee Code A nnotated § 39-11 -403(a) (1997) makes a defend ant crimin ally
respons ible if, “knowing that another intends to commit a specific felony, but without the intent required for criminal
respons ibility under § 39-11-402(2), the person knowingly furnishes substantial assistance in the commission of the
felony.”

                                                          -20-
not completed. See Tenn. Code Ann. § 39-12-101. Thus, no instruction was required on attempt.

        Additionally, we note that the jury was instructed both as to especially aggravated robbery,
a Class A felony, and facilitation of this offense, a Class B felony, and that both defendants were
convicted of the Class A felony. Thus, the jury having been instructed as to a Class B felony, and
having convicted the defendants of the Class A felony, it would have been harmless error for the trial
court not to have instructed as to the additional offenses claimed by the defendants had such
instructions been warranted. State v. Williams, 977 S.W.2d 101, 105 (Tenn. 1998). In Williams,
our supreme court said:

                Reversal is required if the error affirmatively appears to have affected
                the result of the trial on the merits, or in other words, reversal is
                required if the error more probably than not affected the judgment to
                the defendant’s prejudice.

Id. (citation omitted).

       Thus, even if there should have been an instruction as to these additional offenses, it does not
affirmatively appear that such alleged error affected the results of the trial or that it more probably
than not affected the judgment to the defendants’ prejudice. Thus, for this additional reason, this
assignment of error is without merit.

                               Improper Contact with Jurors

        Defendant Groomes asserts that the verdict against him is tainted, because jurors had
improper conversations with the victim’s family, and that he is entitled to a new trial. The State
argues that Groomes has not shown any prejudice from any alleged contacts. After a careful review
of the record, we affirm the trial court’s denial of Groomes’s motion for new trial.

         Communication about the case with a non-juror third party is one type of external influence
that could warrant a new trial if it is also found to be prejudicial. Caldararo v. Vanderbilt Univ., 794
S.W.2d 738, 742 (Tenn. Ct. App.), perm. app. denied (Tenn. 1990). When a jury is not sequestered,
the defendant has the burden of showing more than mere interactions between jurors and third parties
to shift the burden to the prosecution to show that no prejudice to the defendant occurred. The
defendant must show that extraneous prejudicial information or some outside improper influence
was imparted to one or more jurors. State v. Blackwell, 664 S.W.2d 686, 689 (Tenn. 1984); State
v. Clinton, 754 S.W.2d 100, 103 (Tenn. Crim. App.), perm. app. denied (Tenn. 1988).

         In support of his allegations of improper jury contact at the hearing on his motion for a new
trial, Groomes offered the affidavits, as well as the testimony, of his mother and sister stating that
they overheard the victim discussing the facts of the case with two female jurors, one of whom was
blonde and pregnant. In their testimony at the motion hearing, neither woman was able to identify
a specific juror that had improper contact with witnesses. Two jurors, Chantelle Smith and Linda
Kelly, were brought to court on the day of the motion hearing to meet Ms. Groomes and her

                                                 -21-
daughter, because they most closely matched the descriptions in the Groomes’s affidavits of jurors
who had conversations with the victim and his family during the jury selection process. Linda Kelly
was not the juror either woman remembered, and Ms. Smith testified at the hearing that she was
pregnant at the time of trial but did not have a conversation with the victim or his family. She was
also not a blonde. Her only conversation was with a woman identified as Ann Sleigh, who had asked
the younger Ms. Groomes what her jury number was. When Ms. Groomes answered that she was
the defendant’s sister, the woman patted her and said, “Oh, bless your heart. I’m so sorry.” Ms.
Sleigh had related this story to Chantelle Smith but was later stricken from the jury by defendant
Groomes.

       Joe Burns, a transportation deputy with the sheriff’s department, also testified at the hearing
on Groomes’s motion for a new trial. He testified that he saw an older man with the victim pointing
toward the two defendants and mouthing profanity during a courtroom break. Deputy Burns did not
know if any jurors were present in the courtroom during this time, and the man was excluded from
the courtroom by the judge.

        In reviewing the record, we find no indication that any members of the jury panel that
decided this case were involved in any improper, prejudicial communications. At the end of the jury
selection process, a male jury panel member, Richard Coles, Jr., notified the judge that he had heard
witnesses discussing the case and pointing out defendant Akins. The judge excused Mr. Coles and
questioned the entire panel as to whether any other jurors had overheard conversations about the
case. None of the jurors responded in the affirmative. At that point, three jurors were stricken by
the parties, and alternates were picked. Defense attorneys could have questioned the two
unidentified women from the Groomes’s affidavits or any of the other jurors about contact with third
parties if a problem were perceived. In fact, in her brief, Groomes’s counsel alleges that she
observed the victim talking to a jury panel member during the selection process, but there is nothing
in the record to show that she pursued this with the jurors during voir dire. We conclude that the
defendant has failed to show that there were improper communications between any member of the
jury panel and a non-juror third party or that the outcome of the trial was affected by any alleged
communications. This issue is without merit.




                                                -22-
                                               Sentencing Factors

         In reviewing a sentence, we conduct a de novo review with a presumption of correctness of
the trial court’s findings. Tenn. Code Ann. § 40-35-401(d). This presumption 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). We conclude
that the trial court properly considered the appropriate factors, and the presumption of correctness
applies.

        In conducting our de novo review of the sentences, we must consider: (1) the evidence
received at trial and at the sentencing hearing; (2) the presentence report; (3) sentencing principles;
(4) arguments for sentencing alternatives; (5) the nature and characteristics of the criminal conduct
involved; (6) any mitigating and enhancing factors; (7) the defendant’s statements regarding
sentencing; and (8) the defendant’s potential, or lack thereof, for rehabilitation or treatment. Tenn.
Code Ann. § § 40-35-102, -103, -210 (1997); State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim.
App. 1987).

                                             A. Cecil Groomes

         Defendant Groomes argues that his sentence of twenty-two years is excessive and that the
trial court erred in not applying additional mitigating factors to his case, which would reduce his
sentence to twenty years. We disagree and conclude that the defendant was properly sentenced by
the trial court.

        Because especially aggravated robbery is a Class A felony, the trial judge began sentencing
using the midpoint of twenty years. Tenn. Code Ann. § 40-35-210(c) (1997); State v. Chance, 952
S.W.2d 848, 851 (Tenn. Crim. App. 1997). He applied three enhancing factors set out in Tennessee
Code Annotated § 40-35-114: (1) the defendant had a prior criminal history of a misdemeanor
conviction for possession of a gun and a felony conviction for possession of pipe bombs;10 (13) the
defendant committed the current offense while on probation for the felony; (21) the defendant
deceived the court in his affidavit of indigency and failed to pay the administrative fee. The trial
judge then applied three mitigating factors set out in § 40-35-113: (4) the defendant played a minor
role in the offense; (6) because of his youth, the defendant lacked substantial judgment in the
commission of the offense; and (9) the defendant assisted authorities in apprehending the other
defendants.

       We conclude that the trial court properly considered the enhancing and mitigating factors in
reaching the twenty-two-year sentence. Testimony was presented at the sentencing hearing that
Groomes had assets that he did not divulge to the court in procuring court-appointed counsel and did
not pay his administrative fee. Groomes gave testimony that showed he has been involved in fights

         10
           Probation Officer David Pratt testified at the sentencing hearing that Groomes pled guilty to these offenses
on July 14, 1997, and was out on bond approximately one month when the current offense occurred. He was sentenced
on Septem ber 4, 1997 , for the weapo ns and pipe b omb ch arges.

                                                        -23-
in the jail and at school, as well as convicted of prior criminal offenses. In addition, there was
testimony that the defendants were involved in another shooting incident earlier in the day of the
carjacking. The trial judge apparently weighed the enhancing factors heavily, and we presume his
findings to be correct.

        Groomes further argues that the court failed to apply mitigating factor (1), because his
conduct neither caused nor threatened serious bodily injury. We cannot agree. Groomes was armed
that day, and it was his shotgun that Akins used in the robbery. The victim sustained a life-
threatening injury as a result. The trial court did not err in refusing to apply this factor.

         Groomes also claims that mitigating factor (11) should have been applied, in that he
committed this offense under such unusual circumstances that it is unlikely that a sustained intent
to violate the law motivated his conduct. In light of the evidence presented that he was involved
earlier that day in another shooting incident and continued to go armed with the other defendants,
we conclude that the trial court correctly refused to apply this factor. Groomes was properly
sentenced, and we affirm the trial court’s findings.

                                          B. Terrancé Akins

         Akins argues that he should have been sentenced as an especially mitigated offender. He
further argues that the trial court failed to apply three other mitigating factors: (3) substantial grounds
exist to justify the defendant’s conduct; (4) the defendant played a minor role in the offense; and (11)
the offense was committed under such unusual circumstances that it is unlikely that a sustained
intent to violate the law motivated his conduct. Tenn. Code Ann. § 40-35-113. In setting this
defendant’s twenty-year sentence, the trial judge applied one enhancing factor, the defendant had
a previous juvenile conviction for auto theft that would be a felony if committed by an adult (factor
20), and one mitigating factor, his youth caused him to lack substantial judgment in committing this
offense (factor 6).

        As to enhancing factor (20), Akins argues that there was no valuation of the vehicle involved
in the juvenile car theft conviction, so the court had no evidence that this would be considered a
felony rather than a misdemeanor. As provided by Tennessee Code Annotated § 39-14-105(1), a
theft of property under $500 is a Class A misdemeanor. Juvenile offenses occurring after July 1,
1995, can be considered only if they qualify under Tenn. Code Ann. § 40-35-114(20), which requires
that, for consideration, a juvenile offense must be such that, if committed by an adult, it would be
a felony. See State v. Glynnon Bradshaw, No. 01C01-9810-CR-00439, 1999 WL 737871, at *2
(Tenn. Crim. App., Nashville, Sept. 22, 1999); State v. Jeffery Ray Jennings, No. E1999-00848-
CCA-R3-CD, 2000 WL 274078, at *4 (Tenn. Crim. App., Knoxville, Mar. 14, 2000). Thus, since
there was no proof presented as to the value of the vehicle stolen, we agree that factor (20) did not
permit this conviction to be considered for enhancement purposes. Accordingly, there were no
applicable enhancing factors.




                                                   -24-
         The additional mitigating factors that Akins asks us to apply fly in the face of the testimony
at trial and the sentencing hearing. Not only was Akins one of the gunmen in the robbery, he was
with the other defendants earlier in the day when Jordan fired the shotgun out of the car window at
another motorist on the freeway. In addition, there was testimony from several witnesses that Akins
was working at the time of the offense, but in his statement given to police, he stated that he wanted
to take money from the victim. The fact that he was put out of his house and could not graduate
from high school on time is no excuse for committing such a violent crime. It was his choice not
to remain in school so that he could live at home. The trial judge already took into account his poor
youthful judgment as a mitigating factor, and we cannot disagree with the court’s refusal to apply
other mitigating factors.

        Thus, as to defendant Akins, it appears that there were no enhancing factors and that the trial
court could have considered him as an especially mitigated offender. However, it was discretionary
with the trial court as to whether to do so. See Tenn. Code Ann. § 40-35-109(a) (“The court may
find the defendant is an especially mitigated offender, if: (1) The defendant has no prior felony
convictions; and (2) The court finds mitigating, but no enhancing factors.”) (emphasis added); State
v. Braden, 867 S.W.2d 750, 762-63 (Tenn. Crim. App.), perm. app denied (Tenn. 1993) (It is within
the “sound discretion” of the trial court whether a defendant should be sentenced as an especially
mitigated offender and, given the serious nature of the offenses, the court did not abuse its discretion
in refusing to do so.). As to defendant Akins, we conclude that the trial court did not abuse its
discretion in not sentencing him as an especially mitigated offender. Accordingly, we affirm the
twenty-year sentence.

                                       CONCLUSION

        Based upon the authorities and reasoning set out herein, we affirm the judgments of the trial
court as to both defendants.




                                                        ___________________________________
                                                        ALAN E. GLENN, JUDGE




                                                 -25-
