         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                        June 2000 Session

                  STATE OF TENNESSEE v. CLINT T. MELTON

                   Direct Appeal from the Criminal Court for Knox County
                              No. 67737, Ray L. Jenkins, Judge



                                  No. E1999-02090-CCA-R3-CD
                                        October 19, 2000

The appellant was convicted of one count of aggravated robbery and one count of attempted
aggravated robbery and received respective sentences of thirty years and fourteen years, to run
consecutively. On appeal, he argues (1) the sufficiency of the evidence; (2) failure to instruct on the
lessor offense of theft; (3) introduction of hearsay testimony; (4) the trial court=s refusal to permit
introduction of photographs for identification purposes; and (5) misapplication of sentencing
enhancement factor (11), the convicting felonies involved the threat of death or bodily injury and
defendant had previous felony convictions resulting in death or bodily injury. After review, the
judgments of conviction and sentences are affirmed.


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

DAVID G. HAYES, J., delivered the opinion of the court. JAMES CURWOOD WITT, JR., J. filed a
separate concurring opinion, in which NORMA MCGEE OGLE, J., joined.

Susan E. Shipley, Knoxville, Tennessee, for the appellant, Clint T. Melton.

Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Mark A. Fulks,
Assistant Attorney General, Randall E. Nichols, District Attorney General, and Robert L. Jolley, Jr.,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                             OPINION


       The appellant, Clint T. Melton, was indicted by the Knox County Grand Jury in a multi-
count indictment for the offenses of especially aggravated kidnapping, aggravated kidnapping,
aggravated robbery, and attempt to commit aggravated robbery. Following a jury trial, the appellant
was found guilty of one count of aggravated robbery, a class B felony, and one count of attempted
aggravated robbery, a class C felony. The appellant was sentenced to thirty years for aggravated
robbery as a career offender and fourteen years for attempted aggravated robbery as a persistent
offender. The trial court ordered the sentences to be served consecutively. On appeal, he raises the
following issues:

       I. Whether there was insufficient evidence as a matter of law to support the verdicts;

       II. Whether the court erred in failing to instruct the jury on the lesser-included
       offense of theft;

       III. Whether the court erred in the admission of hearsay evidence relating to the
       appellant=s automobile license tag number;

       IV. Whether the court erred in denying the admission of photographs of the
       appellant=s tattoos; and

       V. Whether the court erred in the application of enhancement factor Tenn. Code
       Ann. ' 40-35-114(11).

         After reviewing the record, we affirm the judgments of conviction and sentences entered by
the trial court.


                                            Background

        In August 1998, Shirley Anderson was employed at the Rocky Hill=s Beauty Salon in
Knoxville as a beautician. She had worked the date of Saturday, August 1, but left early to have
lunch with her granddaughter, Rachel Baird, and Rachel=s mother, Doris. At approximately 4:00
p.m., Ms. Anderson returned to the beauty salon accompanied by her granddaughter and Doris Baird
in order that Ms. Anderson could tally up her daily business receipts. All three entered the business
which, by this time, was closed for the day. Shortly thereafter, the appellant entered the salon and
asked if he could get a haircut. Ms. Anderson told him that the salon was closed, and he left.
Moments later, the appellant returned and asked when would the shop be open again. When Ms.
Anderson told him not until Monday, the appellant replied, AGood, you ladies have a seat. I want
your money.@ The appellant instructed, AEverybody sit down and nobody=ll get hurt.@ Ms. Anderson
picked up her purse and put it on her shoulder. In doing so, she noticed her cellular phone inside her
purse. At this point, Rachel, who was only twelve years old, became frightened and tried to escape
through a doorway, but the appellant blocked her way. Ms. Anderson told the appellant that they did
not have any money and that he should leave them alone. The appellant stated, ALady, do I have to
come over there and cut that strap off your shoulder?@ Ms. Anderson noticed that the appellant, who
was wearing surgical gloves, had what appeared to be a knife in his hands. Ms. Baird also observed
the appellant holding Asomething sharp,@ what she thought was a knife. Ms. Anderson retrieved her
cellular phone from her purse and began dialing 9-1-1. The appellant grabbed Ms. Baird=s purse
which was located on a hair dryer seat and ran out the door. Doris Baird ran after the appellant and


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Ms. Anderson followed. Ms. Anderson, realizing that the beauty salon door was unlocked, returned
to the business.

        The appellant got into a truck and drove off. Doris Baird flagged down a teenager, jumped in
his car, and asked him to follow the appellant. The appellant was able, however, to elude his
pursuers. As they were stopped at a red light, a lady from another car knocked on the window and
gave Baird a license tag number. As the vehicle in which Ms. Baird was a passenger was turning
around to return to the beauty salon, she observed a police car. Baird flagged down Officer Patricia
Tipton and provided the officer with the license tag number she had just received from the
unidentified motorist. Officer Tipton gave the information to the patrol officers on the scene at the
salon. This information was then relayed to Detective Terry Clowers. As a result of the information
he received, Detective Clowers located the truck and the appellant. Both Anderson and Baird
identified the appellant as the perpetrator from a composite photo line-up. At trial, Anderson, Doris
Baird and Rachel Baird identified the appellant as the robber.


                                   I. Sufficiency of the Evidence

        First, the appellant challenges the sufficiency of the evidence to sustain a conviction for the
aggravated robbery of Ms. Baird and attempted aggravated robbery of Ms. Anderson. When a
challenge is made on appeal to the sufficiency of the convicting evidence, Tennessee Rule of
Appellate Procedure 13(e) provides that findings of guilt Ashall be set aside if the evidence is
insufficient to support the finding by the trier of fact of guilt beyond a reasonable doubt.@ See also
Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 2789 (1979). The jury conviction removes
the presumption of innocence from the defendant and replaces it with one of guilt; thus, on appeal, a
convicted defendant has the burden of demonstrating that the evidence is insufficient. State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Moreover, the State is entitled to the strongest
legitimate view of the evidence and all reasonable or legitimate inferences which may be drawn
therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992); cert.denied, 507 U.S. 954, 113 S.Ct.
1368 (1993). This court may not reweigh or reevaluate the evidence. State v. Cabbage, 571 S.W.2d
832, 835 (Tenn. 1978). A jury verdict accredits the testimony of state=s witnesses and resolves all
conflicts in favor of the state=s theory. State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983).

         The appellant argues that his convictions were based solely upon the testimony of
eyewitnesses who presented contradictory proof concerning the physical description of the
perpetrator. The appellant points out that Shirley Anderson and Rachel Baird testified that the
intruder was wearing sunglasses. However, Doris Baird did not recall the intruder wearing glasses.
Doris Baird further stated that the appellant was wearing jeans. The appellant also contends that
there is no physical evidence linking the appellant to these offenses. Thus, the appellant asserts that
a rational trier of fact, could not have found that the State established, beyond a reasonable doubt, the
identity of the appellant as the perpetrator. Jackson v. Virginia, 443 U.S. at 307, 99 S.Ct. at 2781.




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       In this case, the evidence established that Shirley Anderson and Doris Baird both identified
the appellant from a police photographic line-up without hesitation. Additionally, notwithstanding
some discrepancies in their testimony at trial, all three eyewitnesses made in-court identifications of
the appellant.

        Inconsistency, inaccuracy and omissions in the description of a defendant by a
        witness who is otherwise able to positively identify the defendant are questions for
        the jury to consider in determining the weight to be given the testimony. State v.
        Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Further, although
        inconsistencies or inaccuracies may make the witness a less credible witness, the
        jury=s verdict will not be disturbed unless the inaccuracies or inconsistencies are so
        improbable or unsatisfactory as to create a reasonable doubt of the appellant=s guilt.
State v. Corey Lamont Radley, No. 01C01-9803-CR-00113 (Tenn. Crim. App. at Nashville, Jul. 15,
1999), perm. to appeal denied, (Tenn. Dec. 27, 1999 )(for publication). The proof in the record
establishes that the appellant obtained control over the property of Doris Baird by the use of violence
or by fear accomplished by the display of a deadly weapon, or reasonably believed to be a deadly
weapon. Tenn. Code Ann. ' 39-13-402 (1997). Also, the proof establishes that the appellant acted
with the intent to commit aggravated robbery of Ms. Anderson. See Tenn. Code Ann. ' 39-12-
101(3)(1997); Tenn. Code Ann. ' 39-13-402. Moreover, the positive identification testimony of the
witnesses established the appellant as the perpetrator of these offenses. Accordingly, we find the
evidence is sufficient to support the finding that the appellant is guilty of aggravated robbery and
attempted aggravated robbery beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v
Virginia, 443 U.S. at 317, 99 S.Ct. at 2781.


                                 II. Instruction on Lesser Offense

        Second, the appellant asserts that the trial court erred in failing to instruct the jury on the
lesser-included offense of theft. It is undisputed that theft is a lesser-included offense of robbery and
aggravated robbery. State v. Hayes, 7 S.W.3d 52, 56 (Tenn. Crim. App. 1999). This fact alone is not
dispositive of whether error occurred. See generally State v. Burns, 6 S.W.3d 453 (Tenn. 1999).
Determining whether a lesser-included offense must be charged in the jury instructions is a two-part
inquiry. Burns, 6 S.W.3d at 469. First, the court must determine whether any evidence exists that
reasonable minds could accept as to the application of a lesser-included offense. Id. 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. Id. 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. Id. at 467-69.

        In this case, the evidence included the testimony of three eyewitnesses, all of whom testified
that they were confronted by the appellant who displayed a knife-like object in his hand and
demanded their money. Additionally, they all testified that the appellant threatened to cut
Anderson=s purse from her body, before grabbing Baird=s purse and fleeing the establishment.


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Aggravated robbery is the intentional or knowing theft of property from another person by violence
or putting the person in fear when accomplished with a deadly weapon or any article used or
fashioned to lead the victim to believe it to be a deadly weapon. Tenn. Code Ann. ' ' 39-13-401,
39-13-402. Robbery is, in effect, aggravated theft; that is, it is theft accomplished by violence or
putting the person in fear.1 Theft involves knowingly obtaining or exercising control over another
person=s property without consent and with the intent to deprive the owner of the property. Tenn.
Code Ann. ' 39-14-103.

        Aggravated robbery, as charged in this case, is robbery accomplished by a deadly weapon.
The proof establishes the elements of (1) violence or fear and (2) display of a deadly weapon. The
appellant makes no effort to refute the existence of these elements; rather, he argues that he was not
the perpetrator. The trial court is required under Burns to view the evidence in the light most
favorable to the existence of the lesser included offense. Burns, 6 S.W.3d at 469. In other words, a
defendant is entitled to have submitted to the jury any defense, which his testimony, or any other
evidence tends to prove. It is equally true that where the evidence shows the accused is either guilty
of the higher offense or not guilty of any offense, an instruction on the lower offense may be properly
refused.2 See generally Schmuck v. United States, 489 U.S. 705, 109 S.Ct. 1443 () ; People v.
         1
             The record reflects that the jury was charged as to the lesser offense of robbery.

         2
            It would be illogical for an instruction on a lesser offense to be provided where the proof establishing the
greater offense is undisputed. Thus, for example, we do not believe that Burns requires the trial court to charge Aassault,@
a lesser offense of murder, in a first degree murder prosecution when the proof is undisputed that the victim is deceased.
Likewise, the trial court is not required to instruct the jury on misdemeanor theft (value under $500) where the only
evidence of value as to the items allegedly stolen by the defendant showed those items to be worth an amount in excess of
the statutory minimum required for felony theft. This is not to advocate an Aall or nothing@ approach. Rather, this
approach, in effect, provides a verdict no harsher or more lenient than the evidence merits, and protects the jury=s truth
ascertainment function. See People v. Breverman, 960 P.2d 1094 (Cal. 1998). Just as the prosecution has no legitimate
interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an




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Thompson, 342 N.E.2d 445 (Ill. App.1976); Rousseau v. State, 855 S.W.2d 666 (Tex. Crim. App.),
cert. denied, 510 U.S. 919, 114 S.Ct. 313 (1993); 75B AM. JUR.2D Trial ' 1428 (2d ed. 1992 &
Supp. 2000). The facts presented in the present case are analogous to those in People v. Thompson.
In rejecting the lesser included offense of theft, the court in Thompson concluded:



         In the instant case, an examination of all the testimony indicates that the jury could
         have reached but two possible conclusions: the defendant was guilty of [aggravated
         robbery and attempted aggravated robbery] or was guilty of no crime. From the
         state=s evidence, the defendant was unquestionably guilty of [aggravated robbery and
         attempted aggravated robbery]. Defendant contends that he was never at the [beauty
         salon]. Thus, there is no evidence in the record which would tend to indicate that a
         theft occurred at the [beauty salon].

Thompson at 448. We find this rationale applicable to the instant case and consistent with Burns.


        For these reasons, the second inquiry of Burns, i.e., that the evidence is legally sufficient to
support a conviction for the lesser included offense has not been met. Accordingly, we find the trial
court did not err in refusing to instruct the jury as to the offense of theft. This issue is without merit.


                                          III. Admissibility of Hearsay

        Third, the appellant contends that the trial court erred in admitting hearsay evidence
concerning the appellant=s license tag number. In determining whether a statement is hearsay, the
court must consider whether the statement is offered in evidence to prove the truth of the matter
asserted. Tenn. R. Evid. 801. If it is not used to prove the truth of the matter asserted, the

acquittal when that evidence is sufficient to establish a lesser included offense. Id. Moreover, the duty to instruct on a
lesser offense is not restricted by trial theories or tactics that the defendant has pursued. Thus, the duty to instruct on a
lesser included offense may arise even when inconsistent with the proof presented by the defense. Id. For example,
where a defendant presents a complete defense, such as alibi, to the substantive elements of the offense charged, an
instruction as to any lesser offense should be given if, based on the evidence adduced by the State, a trier of fact can find
for the defendant on some element of the greater offense which is not required to prove the lesser offense, and for the
State on elements required to prove the lesser offense. See State v. Keenan, 689 N.E.2d 929 (Ohio), cert. denied, 525
U.S. 860, 119 S.Ct. 146 (1998).




                                                            -6-
information regarding the tag number can properly be admitted as nonhearsay. Neither the license
plate number of the truck driven by the appellant nor the paper provided to Ms. Baird by the
unknown motorist was introduced into evidence. Rather, Ms. Baird and the investigating officers
testified as to their actions based upon the receipt of this information from the unidentified motorist.
Clearly, this evidence was not introduced to prove the truth of the matter asserted. Accordingly, the
evidence is nonhearsay and was properly admitted by the court. This issue is without merit.


                                IV. Admissibility of Photographs

        During his case in chief, the appellant sought to introduce photographs which revealed the
presence of distinctive tattoos above each of the appellant=s knees. The photographs of the tattoos
were taken four days prior to trial. The State objected to their admission upon grounds that the
appellant had not laid a proper foundation. Specifically, the State argued that the appellant had not
established that he had the tattoos on the date of the offenses. The trial court sustained the State=s
objection. No further efforts were made by the appellant to have the photographs admitted into
evidence. For this reason, the appellant may not now complain of their exclusion. Tenn. R. App. P.
36(a) (relief not required to party responsible for an error or who failed to take whatever action
reasonably available to prevent or nullify effect of error).

        Moreover, even had a proper foundation been laid, the proof fails to establish the relevancy of
the photographs. The appellant argues that the photographs were relevant in challenging the
credibility of the eyewitnesses= identification of the appellant as the perpetrator. However, no proof
was introduced during the trial that the appellant=s legs were exposed at any time during the offenses.
 Ms. Baird testified that the appellant was wearing jeans. Her daughter, Rachel, did not provide any
description of the appellant=s clothing. Finally, although Ms. Anderson admitted on cross-
examination that she had reported to the 911 operator that she Athought@ the appellant was wearing
shorts, she explained that AI was not looking at the man. I was more looking at his face.@ Absent
proof that the appellant was wearing shorts at the time of the perpetration of the offenses, we fail to
find how introduction of the photographs was relevant. See Tenn. R. Evid. 401, 402. This issue is
without merit.

          V. Application of Enhancement Factor Tenn. Code Ann. ' 40-35-114(11)

       In his final issue, the appellant challenges the length of his sentence due to the alleged
misapplication of enhancement factor (11) which permits sentence enhancement if the felony for
which the appellant was convicted involves the threat of bodily injury to another person and the
appellant has previously been convicted of a felony that resulted in death or bodily injury. See State
v. Makoka, 885 S.W.2d 366, 373 (Tenn.Crim.App.1994); Tenn.Code Ann. ' 40-35-114(11) (1997).
When an appellant complains of his or her sentence, we must conduct a de novo review with a
presumption of correctness. Tenn. Code Ann. ' 40-35-401(d). This presumption, however, Ais
conditioned upon the affirmative showing in the record that the trial court considered the sentencing



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principles and all relevant facts and circumstances.@ State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991).

        Although the appellant=s conduct in the present case Athreatened@ bodily injury to a person
other than the victim, i.e., Rachel Baird, the State failed to establish that the appellant has been
previously convicted of a felony that resulted in death or bodily injury. The State introduced into
evidence the appellant=s prior conviction for the felony offense of rape, however, no other proof
was introduced to establish that the rape resulted in death or bodily injury. We acknowledge that
rape is a serious offense, notwithstanding, bodily injury is neither inherent within the offense of
rape nor a necessary element of the offense of rape. See Tenn. Code Ann. ' 39-13-403(a)(1997).
 Without proof of bodily injury, the trial court erred in using this factor to enhance the
appellant=s sentences for aggravated robbery and attempted aggravated robbery.

        Notwithstanding the erroneous imposition of factor (11), one enhancement factor, Tenn.
Code Ann. ' 40-35-114(1), previous criminal history, remains. This factor is entitled to great
weight as the record reflects that the appellant has been incarcerated for the majority of his adult
life. Indeed, he was only released from confinement five months from the date of his arrest on
the instant offenses. His criminal history includes, inter alia, two rapes, two armed robberies,
two burglaries, an assault and battery, and felony escape. The trial court correctly determined
that no mitigating factors were applicable. When the sentencing court finds only enhancement
factors applicable without any mitigating factors present, the court may set the sentence above
the minimum in the range but still within the range. See Tenn.Code Ann. ' 40-35-210(d). Thus,
due to the great weight afforded to enhancement factor (1), we conclude that the appellant's
sentences are justified. This issue is without merit.

       The judgments of conviction and sentences are affirmed.




                                                      ___________________________________
                                                      DAVID G. HAYES, JUDGE




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