              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT NASHVILLE

                              NOVEMBER 1995 SESSION




STATE OF TENNESSEE,                       )
                                          )
                      APPELLEE,           )
                                          )      No. 01-C-01-9506-CC-00206
                                          )
                                          )      Humphreys County
v.                                        )
                                          )      Allen W. Wallace, Judge
                                          )
                                          )      (Aggravated Robbery)
DANNY R. MORRIS,                          )
                                          )
                     APPELLANT.           )
                                                                 FILED
_______________________________________________________________________
                                                      May 9, 1996
                             DISSENTING OPINION
                                                   Cecil W. Crowson
______________________________________________________________________
                                                  Appellate Court Clerk
     I respectfully dissent.

       The crime committed by the appellant, Danny R. Morris, was despicable. I am sure

that the jury, like myself, was enraged as the evidence unfolded. This atrocious crime was

committed in the jury’s home county by two inmates who escaped from a prison in an

adjoining county.    Morris and Barrett were much younger than the victim. They feigned

illness and acted as if one of them needed assistance. When the elderly victim stopped

to lend assistance, Morris and Barrett took advantage of the victim’s act of kindness.

Nevertheless, we as citizens must not lose sight of the fact that ours is a Nation of laws.

These laws govern the conduct of every citizen. As this Court said in Hodges v. State, 491

S.W.2d 624, 626 (Tenn. Crim. App. 1972), cert. denied (Tenn. 1973): “[O]dious individuals

are not governed by one law and the remaining citizens by another; all are protected by the

same general law.”

       It has long been established that the prosecution must prove every element of a

criminal offense beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068,

25 L.Ed.2d 368 (1970). If the prosecution fails to establish one element of the offense

beyond a reasonable doubt , the accused cannot be convicted of the offense. In this case,

the evidence contained in the record is insufficient, as a matter of law, to support a
conviction for aggravated robbery. The evidence will only support a conviction for simple

robbery.

       Before an accused can be convicted of robbery, the State of Tennessee must prove

beyond a reasonable doubt that (a) there was an intentional or knowing theft of property,

(b) from the person of the victim, and (c) by violence or putting the victim in fear. Tenn.

Code Ann. § 39-13-401(a).        In a prosecution for aggravated robbery, the State of

Tennessee must prove beyond a reasonable doubt (a) the elements of robbery, (b) the

offense was committed with a deadly weapon or the use of an article "used or fashioned

to lead the victim to reasonably believe it to be a deadly weapon," or (c) the victim suffered

serious bodily injury during the course of the robbery. Tenn. Code Ann. § 39-13-402(a).

       The state failed to establish that Barrett used a "deadly weapon" during the

commission of this offense. My colleagues agree with this assessment of the evidence.

Thus, the only question is: did the state establish that the victim incurred “serious bodily

injury” at the hands of Morris and Barrett?

       The majority holds that there was sufficient evidence to establish the element of

serious bodily injury by creating “a substantial risk of death.” I am of the opinion that the

evidence is insufficient, as a matter of law, to support this element of the offense.

       The victim testified that the incident in question occurred “midday”, which appears

to mean noontime. It was established that the police officers interviewed the victim in the

hospital emergency room between 4:30 p.m. and 6:30 p.m. The record is devoid of

evidence as to what occurred during noon and 4:30 p.m.

       The testimony of the victim reveals that he was found by a good Samaritan, “a man

walking his dog.” There is absolutely no evidence as to when the good Samaritan found

the victim. In any event, the good Samaritan took the victim to his home and called an

ambulance for the victim. The ambulance arrived and took the victim to a hospital in

Dickson, Tennessee.

       The good Samaritan was not called as a witness. The ambulance attendants were

not called as witnesses. The doctor who attended the victim was not called as a witness.

The medical records librarian was not called as a witness. Thus, there is a void of

evidence concerning (1) when the ambulance arrived at the home of the good Samaritan,



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(2) how long the ambulance personnel treated the victim before placing him in the

ambulance, (3) how long it took the ambulance to take the victim from Humphreys County

to the hospital in Dickson County, (4) when the victim arrived at the hospital, (5) the

condition of the victim when he arrived at the hospital, (6) the nature and extent of his

injuries, and (7) how long the victim had been at the hospital before the police arrived to

interview him. On the other hand, the record establishes that the victim was able to talk

to the police officers, he was able to view the photographs presented to him, and he was

able to select the photograph depicting Morris. The record also establishes that the victim

was released from the hospital and went to his home the same day the incident in question

occurred. In summary, the record does not establish that the laceration sustained by the

victim caused the victim to incur “a substantial risk of death.”

       The evidence in this case will not support the remaining definitions of “serious bodily

injury.” The record does not establish how long the victim was unconscious. Thus, the

evidence will not support a finding that the victim suffered a “protracted unconsciousness.”

Nor does the evidence support a finding of “extreme physical pain.” The victim was not

asked nor did he testify that the injury was painful. A laceration to a person’s head does

not equate to “extreme physical pain.” The record is devoid of evidence that the victim

suffered “a protracted or obvious disfigurement.” A laceration that requires eight stitches

cannot result in a “protracted or obvious disfigurement.” Moreover, any residual scar will

probably be covered by the victim’s hair and will not be noticeable to others. Again, the

record is devoid of evidence to establish that the victim suffered a “protracted loss or

substantial impairment of a function of a bodily member, organ or mental faculty.” A small

laceration will certainly not cause such a condition.

       It is an elementary principle of law that a criminal conviction cannot be predicated

upon conjecture, guess, speculation, or a mere possibility that the accused may be guilty.

Rucker v. State, 174 Tenn. 569, 572-73, 129 S.W.2d 208, 210 (1939); State v. Cooper,

736 S.W.2d 125, 129 (Tenn. Crim. App. 1987). Nor may this Court “speculate upon the

guilt of one charged with the commission of a criminal offense.” Clancy v. State, 521

S.W.2d 780, 783 (Tenn. 1975).

       The responsibility for the void in the evidence rests squarely upon the state’s



                                              3
shoulders.   As previously indicated, there were several individuals who could have

established that the victim sustained a serious bodily injury. The state opted not to call

these individuals. Thus, the jury was required to engage in conjecture, guess, and

speculation that the victim suffered a serious bodily injury. This Court should not

perpetuate this speculation.

      The record establishes that Morris is guilty of simple robbery, not aggravated

robbery. Based upon the evidence contained in the record, this Court should reduce the

conviction from aggravated robbery to simple robbery.




                                  _______________________________________
                                       JOE B. JONES, PRESIDING JUDGE




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