         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                September 13, 2000 Session

               STATE OF TENNESSEE v. JOHN DAVID PALMER

                  Direct Appeal from the Circuit Court for Gibson County
                           No. 15497    Dick Jerman, Jr., Judge



                   No. W1999-01310-CCA-R3-CD - Filed February 7, 2001


Defendant, John David Palmer, was convicted of voluntary manslaughter and especially aggravated
robbery following a jury trial in Gibson County Circuit Court. He was sentenced to serve three years
for voluntary manslaughter and twenty years for especially aggravated robbery with the sentences
to be served concurrent with each other. He does not appeal the voluntary manslaughter conviction
or sentence. However, regarding the conviction for especially aggravated robbery, Defendant
challenges the sufficiency of the evidence to support the conviction and argues that the trial court
committed reversible error by not instructing the jury on the lesser-included offense of theft and
unauthorized use of a vehicle, i.e., joyriding. After review, we reverse and remand for a new trial
on the offense of especially aggravated robbery.

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

THOMAS T. WOODALL , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
DAVID G. HAYES, J., joined.

Tom W. Crider, District Public Defender; Perianne Houghton, Assistant Public Defender, Trenton,
Tennessee, for the appellant, John David Palmer.

Paul G. Summers, Attorney General & Reporter; Mark E. Davidson, Assistant Attorney General;
Clayburn Peeples, District Attorney General; Larry Hardister, Assistant District Attorney General,
for the appellee, the State of Tennessee.
                                             OPINION

                                             I. FACTS

        Brenda Walker testified that she was a good friend of the victim, Jerry Cotham--a fifty-seven
(57) year-old trader of quarter horses and exotic animals. Walker stated that, in January of 1998, she
had spoken with Cotham on the Friday night of the weekend Cotham died. She testified that Cotham
told her he might be going out of town. The following morning, Walker saw Cotham and Cotham
stated that he was not sure if he was going on his trip. Later, Walker spoke to Cotham by phone.
She did not speak with Cotham anymore.

       Walker testified that, at some point during the day, Cotham’s mother called and said she was
unable to contact Cotham. Walker tried to reach Cotham by phone but did not get an answer. She
went to Cotham’s house between 6:00 and 6:30 p.m., and saw one of Cotham’s trucks in the yard
and the other parked in the driveway. She rang the doorbell, but no one answered. Walker saw
Cotham’s dog, Elder, jump on the couch and then run back toward the kitchen. Walker noted that
this was unusual behavior for the dog, who normally stayed on the couch and barked. After ringing
the doorbell a few more times with no answer, Walker left some food she had for Cotham at the door
and went home. She continued calling Cotham until 10:30 p.m., but Cotham never answered.

        At approximately 7:30 the next morning, Walker went back to Cotham’s house and found
the food still sitting at the door. She checked for Cotham in the barn. Then, she went back to the
house and noticed that Cotham’s Ford truck looked like someone tried to leave in it, but had become
stuck in the mud. She decided to use her key to enter the house, but first she called the Sheriff’s
office and asked them to send someone to enter the house with her. When Deputies Todd Carson
and Johnny Tucker arrived at the house, the three entered Cotham’s home.

        Walker recalled entering the house and finding the couch and coffee table out of place and
the dogs loose. She asked the deputies to check the garage for Cotham’s Mach I Mustang. She
explained that Cotham was very protective of the car and would not allow anyone to drive it. She
stated that when the officers told her the car was gone, she knew something was wrong. As Walker
and the deputies walked down the hallway, they saw blood stains in the carpet. Upon entering a
bedroom, Walker noticed that the closet door was open. She found Cotham’s dead body lying in the
closet wrapped in a blanket and a bearskin rug. On cross-examination, Walker testified that she was
the Administratix of Cotham’s estate. She also told the jury that several items were left in Cotham’s
home, which she sold during an estate sale.

        Deputy Todd Carson testified that he met Brenda Walker and Deputy Johnny Tucker at
Cotham’s home on January 18, 1998. The three entered the house through the back door and
conducted a quick scan of the house. As they entered the living room, they noticed from the imprints
in the carpet that someone had moved the coffee table and couch. As they looked closer, they
noticed some marks in the floor, which appeared to be blood, leading toward the bedroom. Deputy
Tucker stopped to call an investigator, while Deputy Carson checked the bedrooms. Carson


                                                 -2-
explained that, in the far right bedroom, he noticed a blanket lying in front of a broken closet door.
The door looked as if someone pulled it off its hinges. When Carson opened the closet door, he saw
blankets covering Cotham’s body and Cotham’s legs slightly stretched out. Carson asked Deputy
Tucker to call an ambulance, although he strongly suspected that Cotham was dead. The deputies
secured the crime scene and waited for the sheriff and the investigators to arrive.

        Detective Don Curry testified that he went to the home of Jerry Cotham to investigate the
death of Mr. Cotham. Upon arrival, Detective Curry took pictures of the crime scene. Curry also
told the jury that Cotham’s yellow Mach I Ford Mustang was missing from the garage. Detective
Curry testified that Officer Tunning of the Milan Police Department discovered the car in the
Defendant’s possession at a laundromat in Milan, Tennessee.

        Detective Curry further testified that he took two statements from the Defendant. Curry
stated that in Defendant’s first statement, Defendant told the police that he had not seen Cotham and
that Cotham had allowed Defendant to borrow the Mustang. Defendant insisted that he was thinking
of buying the car from Cotham, so Cotham allowed him to test drive the car. Defendant also
admitted that two guns were in the car when he took it-- a .38 caliber pistol and a .25 caliber pistol.
Defendant said that both the guns remained in the car until he returned to his hotel in Milan.
Defendant said he took the .38 caliber gun upstairs to his room and the other gun remained in the car
under the driver’s seat.

        Detective Curry told the jury that, after a search of the Defendant’s room in Milan, he found
the .38 caliber pistol under the mattress. Curry testified that he also questioned the Defendant about
a $575.00 check that the Sheriff found in Defendant’s hotel room. Defendant claimed that he
watched Cotham write the check and then Cotham gave the check to the Defendant for work he had
previously done for Cotham.

        Detective Curry told the Defendant that it was obvious Defendant was lying. Then, Defendant
started crying and gave the officers his second statement. Defendant stated that he went to Cotham’s
house around noon, because Cotham was going to allow the Defendant to borrow the Mustang.
Defendant told Curry that he went inside the house where he and Cotham talked for about twenty
(20) minutes. Cotham left the room and returned with a gun, which he pointed at the Defendant and
demanded that the two have sex. Defendant stated he stood up and pretended to unzip his pants.
Instead, Defendant hit Cotham in the face and took the gun away. Then, the Defendant said he took
a few steps, turned his head and fired two shots at Cotham. Defendant could only recall shooting
the gun twice. Defendant told Curry that he became scared and wanted to get out of the house.

        Defendant further told Curry that he covered the body with a blanket and went to the garage
to take the Mustang, but it would not start. Defendant pushed the Mustang out of the garage and
attempted to use the Ford truck to jump-start the car, but he got the truck stuck in the front yard.
Defendant pushed the Mustang farther back and finally got it to start. Defendant further told Curry
that, while he was outside trying to start the Mustang, he kept seeing Cotham’s body, which made
him sick. Defendant went back inside the house, pulled Cotham’s body down the hallway, put the


                                                 -3-
body in a back closet and covered it with a blanket. Then, Defendant covered the blood stains in the
hallway with two pillows.

       Defendant stated to Curry that after he got the Mustang started, he drove directly to his
mother’s house. Defendant picked up his clothes from Carrie Belle Manor and rented a room at the
Ramada Inn in Milan. Later, Defendant went to his ex-girlfriend’s house. Afterwards, Defendant
picked up his girlfriend and a boy named Tim, and the three drove around. Defendant also admitted
forging the $575.00 check. Defendant said he was going to use the money to get away, but later
decided he had no where to go. Later, Curry discovered that Defendant forged two other checks, a
$125 check to Carrie Belle Manor and a $100.57 check to Wal-Mart. Subsequently, Defendant
admitted forging the two checks, but stated that he found the checkbook under a seat in the Mustang.
Curry testified that the two checks predated Cotham’s death.

         Curry further testified that he could tell from the entrance wounds on Cotham’s body that
Cotham was shot three times. Detective Curry also testified that he personally took the .38 caliber
pistol to the Tennessee Bureau of Investigations Crime Laboratory for a ballistics test, and retrieved
the gun when the test was completed. The State also introduced into evidence, through Curry, three
shell casings removed from the scene and the three bullets removed from the victim’s body by the
medical examiner. On cross-examination, Curry told the jury that Cotham still had jewelry on his
body when the police found him.

        Sergeant Raymond Tunning of the Milan Police Department testified that officers of his
department were told to be on the lookout for a yellow Mustang. They were given the license plate
number of the vehicle. Tunning observed the vehicle pull into a laundromat and park. Tunning and
another officer of the police department detained Defendant at the laundromat until the sheriff and
his investigators arrived. The other officer found a pistol under the driver’s seat of the Mustang,
which he left there, until it could be retrieved by the sheriff’s investigators.

        Steve Clark, a former investigator for the Gibson County Sheriff’s Department, testified that
he received a call concerning the crime scene at Cotham’s house. Clark spoke with the Defendant
about some forged checks written on Cotham’s account. Clark said that the Defendant admitted
forging the checks. However, Clark could not remember whether the checks predated Cotham’s
death. Also, Clark could not recall what Cotham was wearing or if Cotham had any jewelry on his
body.

        Dr. Wendy Gunther, the Assistant Medical Examiner for Shelby County, testified that she
did an autopsy on the body of Jerry Cotham. Dr. Gunther concluded that Cotham had been shot
three times and each shot would have been fatal. She stated that one bullet entered the back of
Cotham’s head. Another bullet entered Cotham’s right side and crossed through his liver and
stomach, finally lodging in the left side of Cotham’s chest. The final bullet entered Cotham’s back
underneath his shoulder blade and traveled through his spleen and colon. Dr. Gunther said that she
could not determine the order in which Defendant fired the bullets. Dr. Gunther further concluded
that the bullets were fired from more than three (3) feet away.


                                                 -4-
        Special Agent Robert Royce, a Forensic Scientist with the Tennessee Bureau of
Investigations testified that the three bullets recovered from Cotham’s body and the spent shell
casings were fired from the .38 caliber gun found in Defendant’s hotel room.

        The Defendant testified that, on January 18, 1998, Jerry Cotham came to his apartment in
Carrie Belle Manor. Cotham asked the Defendant to go with him to Houston, Missouri to purchase
two ponies. Defendant agreed to help Cotham if Defendant’s girlfriend did not come over with
Defendant’s children. Defendant admitted he needed the money, because he had not worked a
regular job for some time. Defendant also admitted that he had worked for Cotham off and on for
approximately ten or eleven years.

         Later that day, Defendant went to Cotham’s house. When Defendant arrived, the two sat in
the living room and talked. Defendant stated that he told Cotham that he wanted to hurry and leave,
so that the two could get back before Defendant’s girlfriend and children came to Defendant’s house.
At some point, Cotham went into the kitchen to cook some food, while Defendant stayed in the
living room playing with Cotham’s dog. Shortly after that, Defendant heard Cotham call his name
and Defendant turned around to see Cotham pointing a gun at him. Defendant testified that he asked
Cotham, “What are you doing?” Cotham replied that he wanted the Defendant to take off his pants
and sit back down on the couch. The two men exchanged words and the Defendant tried to leave,
but Cotham threatened to shoot the Defendant and tell the police that Defendant tried to rob him.
Defendant asserted that he was scared, so he sat on the couch. Then, Defendant stood up and
pretended to take off his pants. Defendant further testified that he grabbed Cotham’s wrist with one
hand and hit Cotham in the face with the other hand. Cotham fell to the floor and Defendant picked
up the gun, turned his head and shot twice. Defendant stated that he shot the gun because he was
afraid for his life. He also testified that he knew he should have just picked up the gun and left, but
he was afraid Cotham would come after him.

        Defendant further testified that he tried to call the police, but the phone line was dead. Then,
Defendant went directly outside to the Mustang, which he intended to take. Defendant explained
that Cotham had offered him the car, and that Cotham told Defendant he would give Defendant a
car if Defendant came to work for him. Defendant admitted that Cotham did not say what car or
truck he would give to the Defendant.

       Defendant pulled the Ford truck into the front yard and attempted to start the Mustang, but
the Mustang would not start. Defendant pushed the Mustang over to the truck so that he could use
jumper cables to start the Mustang. While Defendant was waiting for the Mustang battery to charge,
he went back into the house to cover and hide Cotham’s body. Defendant covered Cotham’s body
with two blankets, dragged Cotham’s body to the back bedroom and pushed the body into the closet.
As Defendant walked back down the hall, he saw a little trail of blood, which he covered with two
pillows. Defendant moved the couch over to cover a huge spot of blood, the sight of which he
claimed made him sick. Afterwards, Defendant tried to call the police again, but the phone still was
not working. Defendant saw Cotham’s checkbook lying on the kitchen table and took it.



                                                  -5-
         After Defendant left Cotham’s house, he went to his mother’s house to tell her what
happened, but was too scared because other people were present. Defendant got a drink of water,
kissed his mother and left. Defendant went to his apartment in Carrie Belle Manor and got his
clothes. Then he went to his ex-girlfriend Kelly’s house to tell her what happened, but he was unable
to tell her. Defendant decided to leave town, but when he was halfway to Milan he decided he was
not going to run from Cotham or leave his mother and sons. Defendant rented a room in Milan.

        At this point, Defendant said he needed someone to talk with so he went to Alamo to visit
his friend Christy Baker. Afterwards, he returned to his hotel room in Milan. The next morning he
went to the laundromat to wash his clothes. Defendant claimed he wanted to have some clean
clothes on when he turned himself over to the police Sunday morning. Defendant also testified that
he was not trying to hide the car or steal the car and that is why he parked the car in front of the
laundromat.

        The Defendant also told the jury that Cotham had previously threatened him with a billy club
and Cotham also tried to break up Defendant’s previous marriage. Defendant told the jury about his
prior employment situation with Cotham. Defendant stated that once Cotham left him stranded in
Plant City, Florida with only $60.00 to make it back home to Jackson, Tennessee. Defendant also
admitted to forging the three checks and to shooting Cotham twice, but asserted he did not remember
firing a third shot. Yet, Defendant agreed that, if Cotham were shot three times, he must have shot
Cotham three times.

      At the close of all the proof, the jury returned a verdict convicting Defendant of voluntary
manslaughter and especially aggravated robbery.

                           II. SUFFICIENCY OF THE EVIDENCE

       In two separate issues, Defendant essentially contests the sufficiency of the evidence to
support his conviction for especially aggravated robbery.

        Where the sufficiency of the evidence is contested on appeal, the relevant question for the
reviewing court is whether any rational trier of fact could have found the accused guilty of every
element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781, 2789, 61 L. Ed. 2d 560, 573 (1979). In determining the sufficiency of the evidence, this court
does not reweigh or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
Nor may this Court substitute its inferences for those drawn by the trier of fact from circumstantial
evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the contrary, this
court is required to afford the State the strongest legitimate view of the evidence contained in the
record as well as all reasonable and legitimate inferences which may be drawn from the evidence.
State v. Tuttle, 914 S.W.2d 926, 932 (Tenn. Crim. App.1995). Since a verdict of guilt removes the
presumption of a defendant’s innocence and replaces it with a presumption of guilt, the defendant
has the burden of proof on the sufficiency of the evidence at the appellate level. State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).


                                                 -6-
        Especially aggravated robbery is defined in Tennessee Code Annotated section 39-13-403
as “robbery as defined in Section 39-13-401: (1) accomplished with a deadly weapon; and (2) where
the victim suffers serious bodily injury.”

        Robbery is defined in Tennessee Code Annotated section 39-13-401 as the “intentional or
knowing theft of property from the person of another by violence or putting the person in fear.”
Tennessee Code Annotated section 39-14-103 provides that “(a) person commits theft of property
if, with intent to deprive the owner of property, the person knowingly obtains or exercises control
over the property without the owner’s effective consent.”

         From the review of the evidence as discussed above, it is clear that the State had
overwhelming proof that the Defendant shot and killed the victim with a deadly weapon. In addition,
there is more than ample proof that the Defendant committed theft of the Mustang automobile. The
question for further analysis is whether there is sufficient proof that the theft was “from the person”
of the victim. As recently emphasized by our supreme court in State v. Owens, 20 S.W.3d 634, 641
(Tenn. 2000), “[i]ndeed, robbery is committed in Tennessee only if the ‘theft of property from the
person of another’ is accomplished ‘by violence or putting the person in fear.’” Tenn. Code Ann.
§ 39-13-401(1997). Id. at 641 (emphasis in original).

         The proof in this case was that the Defendant shot and killed the victim inside the victim’s
home, and immediately went into the garage and began his efforts to take the Mach I Mustang.
There is evidence in the record that the garage was attached to the residence. In fact, in Defendant’s
first statement to Investigator Curry, Defendant stated that on the date of the incident, he knocked
on the Defendant’s door and the victim did not answer. After checking around the barn, the
Defendant stated that he opened up the garage door, went inside and opened up the door that leads
from the garage to the rest of the house and yelled again for the victim three times. The theft of
property located in essentially the same building as the victim is located, is sufficient to be “from the
person” of the victim. See James v. State, 214 Tenn. 683, 383 S.W.2d 20 (1964); Morgan v. State,
220 Tenn. 247, 415 S.W.2d 879 (1967); State v. Edwards, 868 S.W.2d 682, 699-700 (Tenn. Crim.
App.), perm. to appeal denied (Tenn. 1993). There is sufficient evidence for a rational trier of fact,
considering the evidence in the light most favorable to the State, to find that the intentional or
knowing theft of the Mach I Mustang, from the person of the victim, was accomplished by violence
wherein a deadly weapon was used and the victim obviously suffered serious bodily injury.

        The Defendant further asserts that the jury verdicts were impermissibly inconsistent. The
Defendant argues that the jury’s inability to find the underlying felony necessary for a felony murder
conviction, preponderates against a finding of guilty as to especially aggravated robbery. We
disagree. Our supreme court has long held it unnecessary to require consistency in verdicts when
there are multiple count indictments, because each count is a separate indictment. Wiggins v. State,
498 S.W.2d 92, 93 (Tenn. 1973). In Wiggins, the Tennessee Supreme Court adopted the reasoning
of Dunn v. United States, 284 U.S. 390, 52 S. Ct. 189, 76 L. Ed. 356 (1932), and held that “a
seemingly inconsistent verdict” would not be reversed due to speculation as to the jury’s reasoning.



                                                  -7-
Id. at 94. If an appellate court is “satisfied that the evidence establishes guilt of the offense upon
which the conviction was returned,” the court must uphold the conviction. Id.

                        III. LESSER-INCLUDED OFFENSE CHARGE

        The Defendant contends that the trial court erred when it failed to instruct the jury on the
lesser-included offenses of especially aggravated robbery, i.e., theft and “joyriding.”

        In its brief, the State concedes that the trial court committed reversible error by not charging
the jury on theft as a lesser-included offense of especially aggravated robbery. We agree. There is
no question that theft is a lesser-included offense of especially aggravated robbery. Indeed,
especially aggravated robbery cannot occur unless there is proof of a theft. Therefore, it is a lesser-
included offense under part (a) of the test set forth by our supreme court in State v. Burns, 6 S.W.3d
453, 466-67 (Tenn. 1999). In addition, evidence does exist that reasonable minds could accept as
to the lesser-included offense of theft and that the evidence is legally sufficient to support a
conviction for the lesser-included offense of theft.

       The error by the trial court of not charging theft is not harmless error in this case. This is true
whether the standard is “harmless beyond a reasonable doubt” or under the lesser standard that the
error “more probably than not affected the judgment to the defendant’s prejudice.” See State v.
Swindle, 30 S.W.3d 289, 293 (Tenn. 2000); State v. Williams, 977 S.W.2d 101, 105 (Tenn. 1998)

        Regarding the Defendant’s assertion that the trial court erred in failing to charge “joyriding,”
i.e. unauthorized use of a vehicle as prohibited in Tennessee Code Annotated section 39-14-106, we
note that this court has previously held that “joyriding” is a lesser-included offense of theft of a
vehicle under part (b) of Burns. See State v. Burns, 6 S.W.3d 453, 466-67 (Tenn. 1999). In State
v. Brooks, 909 S.W.2d 854, 860 (Tenn. Crim. App. 1995), filed prior to Burns, our court held that
the unauthorized use of a vehicle, “joyriding,” was a lesser-included offense of theft of a vehicle.
Later, in State v. David Michael Gamble, No. 03C01-9812-CR-00442 (Tenn. Crim. App. filed
January 1, 2000 at Knoxville), another panel of this court also held that “joyriding” is still a lesser-
included offense of theft of a vehicle under part (b) of the test set forth in Burns.

        Following the mandates of Burns, we next examine whether, in this case, the trial court erred
by not charging the lesser-included offense of joyriding in this case. Taken in the light most
favorable to the existence of the lesser-included offense without making any judgments on the
credibility of the evidence, we note that Defendant testified that he intended to turn himself in to the
police prior to his arrest, and that he was not trying to hide or steal the car at the time he was
arrested, as evidenced by the fact that he parked it in front of the laundromat in Milan. We hold that
a jury could accept this evidence, along with other evidence in the case, that Defendant did not have
the intent to deprive the owner of the vehicle. Therefore, the trial court erred by not charging
joyriding. Again, examining the case under State v. Williams, supra, we find that whether the error
must be viewed as harmless beyond a reasonable doubt, or under the lesser burden that it more
probably than not affected the judgment, the error was not harmless.


                                                   -8-
                                      IV. CONCLUSION

       Due to the fact that the trial court committed reversible error by not charging the lesser-
included offenses of theft and “joyriding,” we reverse the conviction for especially aggravated
robbery and remand this case for a new trial. In addition, the judgment of conviction for voluntary
manslaughter is affirmed.



                                                     ___________________________________
                                                     THOMAS T. WOODALL, JUDGE
