         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                  September 23, 2008 Session

             STATE OF TENNESSEE v. MARK ANTHONY FOULK

                       Appeal from the Circuit Court for Sullivan County
                            No. S50, 580    R. Jerry Beck, Judge



                     No. E2007-00944-CCA-R3-CD - Filed January 8, 2009


The Defendant, Mark Anthony Foulk, was convicted by a jury of: one count of aggravated robbery,
a Class B felony; one count of aggravated burglary, a Class C felony; one count of vandalism in the
amount of $500 or less and one count of driving under the influence, both Class A misdemeanors;
one count of speeding and one count of failure to obey a traffic control device, both Class C
misdemeanors. He was sentenced to an effective term of eighteen years in the Department of
Correction. In this direct appeal, the Defendant contends that (1) the evidence at trial was
insufficient to establish his identity as the perpetrator of the vandalism, aggravated burglary, or
aggravated robbery, and was otherwise insufficient to prove the elements of aggravated robbery; (2)
the trial court erroneously instructed the jury on the elements of aggravated burglary; (3) he was
effectively denied his right to a jury trial; (4) the court improperly instructed the jury that a certain
State’s witness, Detective Dale Quillen, was an expert on gunshot wounds and stippling; (5) the
court improperly enhanced his sentences for aggravated burglary and aggravated robbery; and (6)
the court improperly ordered consecutive sentences. We agree with the Defendant that the evidence
at trial was insufficient to convict him of aggravated robbery, and accordingly modify this conviction
to the lesser included offense of robbery. We also conclude that the trial court improperly enhanced
the Defendant’s sentences and failed to make the required findings to impose consecutive sentences.
We conclude that the Defendant’s other points of error lack merit. The case is remanded to the trial
court for resentencing.




  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in Part;
                      Reversed in Part; Remanded for Resentencing

DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH , J., joined. D.
KELLY THOMAS, JR., J., filed a dissenting opinion.

Perry Stout, Johnson City, Tennessee, (at trial); and Kristi M. Davis, Knoxville, Tennessee, (on
appeal, for the appellant, Mark Anthony Foulk.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney
General; H. Greeley Wells, Jr., District Attorney General; and Robert H. Montgomery, Jr., Assistant
District Attorney General, for the appellee, State of Tennessee.


                                             OPINION

                                         Factual Background
        The actions giving rise to this case began on the morning of March 29, 2005. At about 3:00
a.m., the eighty-three-year-old victim, Clara Rita Groseclose, woke up from sleeping in front of her
television. The victim testified that, although her nephew sometimes stayed with her, she typically
lived alone and was alone that morning. Her television room was on the ground floor of her house.
The victim stood up, walked over to the television, and turned it off. She habitually kept with her
a two-shot, two-barrel, pearl-handled Derringer pistol her father had given her for protection some
years before. The victim picked up this pistol and started toward the stairs. One of the walls of the
victim’s house stood to her right as she approached the stairs; that wall formed the right wall of the
staircase as well as the wall of the television room. The wall contained a window a few feet away
from the entrance to the stairs. The house was completely dark except for the small amount of
natural light coming through this window.

         When the victim reached the fifth stair, she heard a noise “like the house caving in” coming
from near the bottom of the stairs, which she later realized was made by the wood lattice in her
window as it broke. She turned around to investigate, descending the stairs slowly. Nearing the
bottom of the stairs, she saw “a shadow” coming into her house through the window, now a few feet
in front of her and to her left. Realizing her danger, the victim readied her pistol. She had been told
that, given the weapon’s small .22 caliber ammunition, “it would take a lot of shots unless [she] hit
a vital spot.” She knew the pistol contained only two bullets, so she thought “well, shall I shoot him
through the heart or through the head?” She first pointed the pistol at his chest but, thinking better
of it, pointed it at his head. Her moment of indecision had cost her the opportunity to take a clear
shot, however, as the person was “right on her” by that time. He successfully pushed the victim’s
arm to the side as she fired the first shot. He then grabbed her arm and pushed it down, pressing the
victim’s arm against her side. The gun went off a second time as the assailant pulled it out of the
victim’s hand; it is uncertain from the record whose finger actually pulled the trigger. The assailant,
having secured the pistol, wrestled the victim to the ground.

       He told her, “I just want some money. I’m on my way to Florida. They tell me you’ve got
some money.” She replied, “they’ve told you something I don’t have.” The assailant then said,
“you’ve shot me. I’m bleeding.” The victim was extremely frightened, and she assumed that he
would strangle her or pistol-whip her now that she was unarmed. Instead, he asked the victim where
her pocketbook was, and she told him to look for it in her purse, which was on a nearby magazine
rack. He picked up the entire purse, which contained her billfold, her coin purse, and a key to her
house.



                                                 -2-
        At that moment the victim’s security alarm sounded; the assailant fled out the window.
Because of the darkness, the victim had not seen his face; at no point did she identify the Defendant
as her assailant. The victim stood up, noting that the assailant had broken out the entire bottom
frame of her window. She picked up her phone to call 911 but found that the line was dead. After
walking outside to investigate, she found that her phone line, contained in a box on the outside wall
immediately to the right of the broken window, had been cut.1 Having no other option, she drove
to the Kingsport Police Department to report the crime. At some point, she also noticed that her
“aluminum six-foot” clothesline pole had been stolen, and on that basis testified to her belief that
a second person must have helped her assailant carry it away. No second person ever entered her
house, however.

         At about 3:18 a.m., Deputy Micah Johnston of the Sullivan County Sheriff’s Office was
driving down Bloomingdale Road at a location a few hundred yards from the victim’s home. He
testified that he stopped for a red light at the intersection of Bloomingdale Road and Stone Drive,
and he described the intersection with the assistance of photographs taken there. Bloomingdale Road
is divided into two lanes at that point. As a sign on approach to the intersection indicates, the right
lane allows cars either to proceed straight through the intersection or to turn right onto Stone Road;
the left lane allows cars to proceed straight only. Additionally, a sign containing a “no left turn”
graphic hangs between the two traffic lights controlling the intersection.

        Deputy Johnston observed a white Chevrolet Lumina in the left, straight-only lane. When
the traffic light turned green, the Lumina illegally turned left onto Stone Drive. Deputy Johnston
followed it. The speed limit on that section of Stone Drive is forty-five miles per hour. Deputy
Johnston, by matching the Lumina’s speed and observing his own calibrated speedometer,
determined that the Lumina was traveling about sixty miles per hour. Deputy Johnston also observed
the Lumina swerving out of its lane. Deputy Johnston followed the car for a total of about one and
a half miles. According to his log, he activated his blue lights at 3:21 a.m. The Lumina pulled into
the parking lot of a nearby International House of Pancakes restaurant (IHOP).

        Deputy Johnston approached the car and spoke to the driver, who he identified as the
Defendant at trial. Deputy Johnston immediately noticed what he described as a “road rash type
injury” on the Defendant’s left cheek. He also noticed some cuts on the Defendant’s hands. Deputy
Johnston asked the Defendant about these injuries, and the Defendant replied that he had been in a
fight in Kingsport.

        At this point, Deputy Johnston noticed an odor of alcohol coming from the vehicle. He asked
the Defendant to exit the vehicle in order to perform three field sobriety tasks to test his intoxication
level: a nine-step walk-and-turn, a finger-to-nose task, and a one-legged stand. The Defendant
confirmed that he had no physical impairments or limitations that would prevent him from
completing these tasks. Deputy Johnston demonstrated each task for the Defendant and testified that
the Defendant appeared to understand them.


        1
            The victim testified that repairs to her window and phone line cost less than $500.

                                                           -3-
       The Defendant failed, on every step of the walk-and-turn, to place his heel to his toe. He also
missed three of the six required touches in the finger-to-nose task. Finally, he had difficulty
maintaining his balance during the one-legged stand, and he had to touch the ground twice while
counting from one to thirty. Based on these results, and on his general observations of the
Defendant, Deputy Johnston formed the opinion that the Defendant was too impaired to legally
operate a motor vehicle. On this basis, Deputy Johnston arrested the Defendant and placed him in
the back seat of his cruiser. Officer Eric Alford had arrived at the scene in the meantime. He rolled
the Lumina’s windows up, locked its doors, and gave the Defendant’s keys to Deputy Johnston.
Deputy Johnston began driving the Defendant to the Sullivan County Jail.

         The victim, meanwhile, had reached the Kingsport Police Department and reported the crime.
Deputy Johnston heard on his police radio, as he was driving the Defendant, a report of that nearby
home invasion. Deputy Johnston noticed that the Defendant turned his head and leaned forward
when the report came over the radio. Deputy Johnston thought the Defendant was attempting to
listen, although he admitted the possibility that the Defendant might simply have been passing out.

        When he reached the jail, Deputy Johnston noticed some broken glass on the Defendant’s
jacket and “put two and two together.” He called Kingsport, told them he had delivered a possible
home invasion suspect to the jail, and gave them the location of the Defendant’s secured vehicle.
He then read Tennessee’s implied consent law to the Defendant and informed him of the
consequences of failing to take a blood alcohol test. In response to Deputy Johnston’s request that
the Defendant take the test and sign the implied consent form, the Defendant told him to “stick it up
[his] ass.” The Defendant’s clothing and possessions were bagged, and he was placed in a cell.

         David Quillen, at the time a detective with the Kingsport Police Department, was dispatched
to the victim’s house. Lieutenant Dale Phipps and Officer Seth Brunsfield were already on the scene
when he arrived. First, Det. Quillen looked at and photographed the broken window from the
outside. He saw that the victim’s phone line had been cut. Although he agreed at trial that the tread
on the Defendant’s later-examined boot was substantial, he noticed no boot prints outside the
window. He entered the house and noticed some glass on the floor under the window. He also
noticed a lamp, a vase, and a handgun holster scattered on the floor “like there had been a struggle.”
Two apparent bullet holes were visible; one to the left of the broken window’s frame, and another
in the stairs. The hole in the stairs contained a bullet fragment. The hole in the window frame did
not contain one, and a second bullet was never found.

       In a few locations, he also saw a noticeable but relatively small amount of red substance,
which he believed to be blood, including the carpet near the foot of the stairs, a nearby magazine
rack, and a nearby iron table. After photographing the inside of the house and gathering the
evidence, Det. Quillen returned to the Kingsport Police Department.

       As he was processing the crime scene, Det. Quillen learned that Deputy Johnston had arrested
the Defendant as a potential suspect. He also learned the location of the Defendant’s car. Detective
Quillen called Officer Daniel Horne and directed him to the Stone Drive IHOP to look for any plain


                                                 -4-
view evidence in the Defendant’s vehicle. Officer Horne testified that, upon arrival at the IHOP, he
looked into the car using his flashlight. While looking in across the hood from the passenger side,
he saw a black leather bag, as well as the pearl handle of a pistol, partially visible under the driver’s
seat. Officer Horne recognized these as the items he had been told were reported missing in the
recent home invasion. He notified Det. Quillen, who arranged to impound the vehicle. Officer
Horne waited with the car until the tow truck arrived. The Defendant’s car was taken to the
Kingsport Police Department’s rear parking lot.

        Detective Quillen also sent Officer Amanda Sykes to the jail to inventory the Defendant’s
possessions. She testified that she observed and photographed in the Defendant’s property bag one
key ring with a number of keys on it, a second key ring with only one key on it, some change, a
wallet, and some currency. The currency consisted of three five-dollar bills and four one-dollar bills.
One of the five-dollar bills contained a tear repaired with clear tape. The second key ring had been
found on the Defendant’s person; the State established at trial that it contained the victim’s house
key. Officer Sykes also took pictures of the Defendant, which were introduced at trial. She also
collected his clothing for investigation, including his boots, a camouflage jacket, and a blue shirt.

        Detective Quillen went to the jail to see the Defendant, who declined to give a statement.
Detective Quillen noticed that the Defendant had cuts on his hands. He also testified that he saw an
abrasion on the left side of the Defendant’s face and gave his opinion, based on his knowledge and
experience as a detective, that the wound was “consistent with powder burns from the discharge of
a gun.” The Defendant was not tested for gunpowder stippling because he had already been allowed
to wash his face.

        After obtaining a search warrant, Det. Quillen searched the Defendant’s vehicle. He found
a blue steel Derringer and a black purse, both of which the victim identified at trial as those taken
in the robbery. The purse contained the victim’s identification as well as some personal items.
Detective Quillen also found the Defendant’s checkbook in the car.

       The victim testified that two days later, on March 31, 2005, she noticed an injury on her right
buttock. She originally assumed she was developing a boil, but on closer inspection, she discovered
a powder burn. This prompted her to look at the underwear she had been wearing at the time she
was robbed; she discovered a hole in them. She again drove to the Kingsport Police Department to
document this wound and brought the underwear as well.

        During the course of the resulting investigation, the following items were sent to the
Tennessee Bureau of Investigation (TBI) for analysis: the victim’s shirt, which she had apparently
left with the police; the Defendant’s boots, jacket, belt, pants, shirt, and sweater; the glass Deputy
Johnston noticed on the Defendant’s jacket, some glass found in his car, and glass from the victim’s
broken window; the victim’s pistol; and the bullet and shell casings recovered during the
investigation. Det. Quillen sent some of this evidence, and some was sent by his replacement, Det.




                                                  -5-
Jason Bellamy.2 After the TBI returned the evidence to Kingsport, Det. Bellamy acted as its
custodian. He brought the evidence to court and identified each piece of evidence at trial.

        Three TBI forensic scientists combined to analyze these items and testified at trial. Special
Agent Teri Arney was qualified as an expert in firearms, tool marks, and gunshot residue. She
examined the victim’s pistol and damaged underwear. She testified that the bullet Det. Quillen
recovered came from the bottom of the pistol’s two barrels. She also matched both recovered
cartridge casings to the pistol.

        Agent Arney also testified that the hole in the victim’s underwear resulted from the high level
of gas pressure produced by a gun’s muzzle when the gun is fired. The nature of the damage
indicated to her that the gun was no more than an inch from the underwear when fired. On cross-
examination, Agent Arney noted, however, that one cannot tell from examining powder burns which
particular weapon caused them.

        Special Agent James Davis II was qualified as an expert in microanalysis with a specialty in
trace evidence and analysis of glass and gunshot residue. He examined the Defendant’s coat for the
presence of gunshot primer residue, which he testified will settle on anything located near a fired
weapon. He found particles on the jacket composed of barium and lead, a chemical composition
consistent with the primer in Winchester ammunition, the type used in the victim’s Derringer. Agent
Davis also compared glass from the crime scene with glass from the Defendant’s jacket and car; the
samples did not match.

         Special Agent Mike Turbeville was qualified as an expert in serology and DNA analysis. He
testified that he first performed, on the relevant evidence, a test designed simply to detect the
presence of human blood. The victim’s shirt and pistol, as well as the Defendant’s shirt, sweater,
pants, and right boot, came back positive. The Defendant’s belt and left boot came back negative.

       Agent Turbeville then tested the blood on each positive item against DNA samples from the
Defendant and the victim. He confirmed, using DNA analysis, that the Defendant’s right boot,
sweater, and shirt contained only the Defendant’s blood. The victim’s shirt contained only the
victim’s blood. The Defendant’s pants contained an amount of blood insufficient for DNA analysis.

        The victim’s pistol contained only enough blood for a partial profile, meaning that “there was
some DNA there, just not a lot of it.” The available DNA was consistent with the Defendant’s DNA,
however, meaning that it did not rule out the Defendant, but it also was not a conclusive match. The
State introduced Agent Turbeville’s official serology and DNA report at trial. The statistics test
results contained therein indicate that the probability of an individual unrelated to the Defendant
having a DNA profile consistent with the one found on the victim’s pistol is approximately 1 in
258,900 among the African-American population, 1 in 33,110 among the Caucasian population, 1


        2
           Detective Quillen stopped working for the Kingsport Police Department at some point during the course of
the investigation.

                                                       -6-
in 27,480 among the Southeastern Hispanic population, and 1 in 35,240 among the Southwestern
Hispanic population.

         The Defendant did not testify or present other evidence at his trial. The jury found him guilty
on all six counts of the indictment, fining him a total of $29,250. The Defendant was sentenced as
a Range I, standard offender. The trial judge sentenced the Defendant to twelve years in the
Department of Correction for his aggravated robbery conviction, to be served concurrently with
sentences of eleven months and twenty-nine days each for his vandalism in the amount of $500 or
less and driving under the influence convictions, as well as thirty days each for his speeding and
failure to obey a traffic control device convictions. The trial judge sentenced the Defendant to six
years in the Department of Correction for his aggravated burglary conviction, to be served
consecutively to the terms above, for a total effective sentence of eighteen years. He now appeals.

                                               Analysis
I. Sufficiency of the Evidence
        The Defendant first challenges the sufficiency of the evidence used to convict him.
Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in criminal actions
whether by the trial court or jury shall be set aside if the evidence is insufficient to support the
findings by the trier of fact of guilt beyond a reasonable doubt.” A convicted criminal defendant who
challenges the sufficiency of the evidence on appeal bears the burden of demonstrating why the
evidence is insufficient to support the verdict, because a verdict of guilt destroys the presumption
of innocence and imposes a presumption of guilt. See State v. Evans, 108 S.W.3d 231, 237 (Tenn.
2003); State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913,
914 (Tenn. 1982). This Court must reject a convicted criminal defendant’s challenge to the
sufficiency of the evidence if, after considering the evidence in a light most favorable to the
prosecution, we determine that any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v.
Hall, 8 S.W.3d 593, 599 (Tenn. 1999).

         On appeal, the State is entitled to the strongest legitimate view of the evidence and all
reasonable and legitimate inferences which may be drawn therefrom. See Carruthers, 35 S.W.3d at
558; Hall, 8 S.W.3d at 599. A guilty verdict by the trier of fact accredits the testimony of the State’s
witnesses and resolves all conflicts in the evidence in favor of the prosecution’s theory. See State
v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions about the credibility of witnesses, the
weight and value of the evidence, as well as all factual issues raised by the evidence are resolved by
the trier of fact, and this Court will not re-weigh or re-evaluate the evidence. See Evans, 108 S.W.3d
at 236; Bland, 958 S.W.2d at 659. Nor will this Court substitute its own inferences drawn from
circumstantial evidence for those drawn by the trier of fact. See Evans, 108 S.W.3d at 236-37;
Carruthers, 35 S.W.3d at 557.

      A. Evidence of the Defendant’s Identity
      The Defendant contends that the State did not prove his identity as the victim’s assailant
beyond a reasonable doubt, and thus, that the evidence was insufficient to convict him of vandalism,


                                                  -7-
aggravated burglary, or aggravated robbery. In support of this argument, he asks us to note that Det.
Quillen found no boot prints outside the victim’s window, that no tools suitable for cutting a phone
line were found on the Defendant or in his vehicle, and that the glass found on the Defendant’s jacket
and in his vehicle did not match the glass broken out of the victim’s window. Finally, he asserts that
he was too intoxicated to have done the acts the victim ascribed to her assailant. The victim was
unable to identify her assailant.

        Despite these facts, we conclude that the State presented evidence sufficient to support the
Defendant’s presence in the victim’s home. Detective Quillen found the victim’s purse and pistol
in the Defendant’s secured vehicle. Primer consistent with the ammunition used in the victim’s
pistol was found on the Defendant’s jacket. The victim’s pistol yielded a partial DNA sample
consistent with the Defendant’s DNA. The Defendant had one of the victim’s keys on his person
at the time he was arrested. Our supreme court has held that circumstantial evidence alone can
establish a perpetrator’s identity, so long as the facts are “so clearly interwoven and connected that
the finger of guilt is pointed unerringly at the [d]efendant and the [d]efendant alone.” State v. Reid,
91 S.W.3d 247, 277 (Tenn. 2002) (quoting State v. Smith, 868 S.W.2d 561, 569 (Tenn. 1993)). We
conclude that the evidence above is sufficient to do so here.

        B. Evidence of Aggravated Robbery
        Tennessee Code Annotated section 39-13-401(a) defines robbery as “the intentional or
knowing theft or property from the person of another by violence or putting the person in fear.” An
aggravated robbery is one “[a]ccomplished 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 “where the victim
suffers serious bodily injury.” Tenn. Code Ann. § 39-13-402(a). The Defendant concedes, his
identity as the victim’s assailant being established, that the State presented evidence sufficient to
convict him of robbery; even if the two had not physically struggled, the Defendant’s presence in the
victim’s home would have put her in fear.

        The Defendant contends that the State failed to present evidence sufficient to convict him of
aggravated robbery, however, arguing that the robbery in this case was neither accomplished with
the victim’s pistol or other deadly weapon, nor by the display of that pistol or any article the victim
might reasonably have believed to be a deadly weapon.3 We analyze the legal significance of the
Defendant’s interactions with the victim and the victim’s pistol in two stages: his actions during his
disarmament of the victim, and his actions after he disarmed her.

               i. During Disarmament of Victim
        Tennessee Code Annotated section 39-11-106(a)(5) defines a “deadly weapon” as either “[a]
firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or
serious bodily injury” or “[a]nything that in the manner of its use or intended use is capable of
causing death or serious bodily injury.” The Defendant first exercised some amount of control over
the victim’s pistol, a deadly weapon, when he pushed her arm to the side, apparently sustaining a


       3
           The State does not argue that the victim suffered serious bodily injury.

                                                          -8-
facial wound from her first shot. He wrestled her to the ground and pulled the pistol away from her
hand, resulting in the discharge of the pistol’s second and final shot. The Defendant did not in any
way “display” the victim’s pistol during this sequence.

        We must therefore determine whether the Defendant’s taking of the victim’s pistol and
subsequent taking of her purse were in some way “accomplished with” the measure of control he
exercised over the victim’s pistol during the struggle. The State argues that the Defendant’s taking
of the victim’s pistol afforded him the opportunity to accomplish the robbery. We agree with the
proposition that, but for his disarmament of the victim, the Defendant would have found it more
difficult (in the case of the victim’s purse), or impossible (in the case of the pistol itself), to complete
the robbery. We are unable to conclude that the Defendant thereby “accomplished” the robbery with
the pistol during this disarmament period, however. He did not disarm the victim for the purpose
of effecting the robbery; he did so only in order to “accomplish” his goal of self-preservation.
Although his actions were contemptible and dangerous, we think that under these facts the
Defendant’s culpability does not rise to the level of an aggravated robber.

                ii. After Victim Disarmed
        The record contains no information regarding specifically what the Defendant did with the
victim’s pistol immediately after disarming her. We can infer from the short period of time the
Defendant spent in the victim’s house, as well as the pistol’s subsequent presence in the Defendant’s
car, that he kept it on his person.

        We must first determine whether the Defendant accomplished his robbery of the victim by
displaying an actual or apparent deadly weapon. We conclude that he did not. The record contains
no evidence that the Defendant ever “displayed” the victim’s pistol after disarming her. The victim’s
television room was dark enough that she never saw her assailant’s face; she also did not see her
pistol after he took it from her. Although she understandably feared that the Defendant might pistol-
whip her, the victim did not perceive the Defendant making any threatening gesture toward her with
the pistol or otherwise.

        Second, we examine whether the Defendant’s robbery of the victim was “accomplished
with” a deadly weapon during this post-disarmament stage. Having been fired twice, the pistol was
unloaded when the Defendant obtained sole control over it. It is unclear whether the Defendant
knew this; the victim did.

       Tennessee law considers even an unloaded firearm to be a deadly weapon. See Tenn. Code
Ann. § 39-11-106(a)(5)(A) (stating that any “firearm” is a deadly weapon) (referred to herein as
“subsection A”); see also Turner v. State, 300 S.W.2d 920 (Tenn. 1957). In Turner, our Supreme
Court agreed with the proposition that “whether a deadly weapon is capable of being shot is
immaterial where the prosecution is for robbery with a deadly weapon,” while noting as its
underlying rationale the fact that “‘the victim, or intended victim, of a robbery has no opportunity
to examine a firearm to ascertain whether or not it is loaded’ and ‘has the right to assume that it is
loaded and capable of producing death . . . .’” Id. at 920 (quoting Moore v. Commonwealth, 86


                                                    -9-
S.W.2d 145, 146 (Ky.App. 1935)). Turner thus contains some suggestion that the policy underlying
Tennessee’s “deadly weapon” definition might strip an unloaded firearm of its “deadly per se” status
codified in subsection A, see State v. McGouey, 229 S.W.3d 668, 672 (Tenn. 2007), if a victim
knows the firearm is unloaded, as did the victim in this case. We find it unnecessary to reach that
question, however, and accordingly treat the Defendant as possessing a per se deadly weapon after
his disarmament of the victim.

        We therefore proceed having concluded that the victim’s awareness that her pistol was
unloaded does not change its status as a deadly weapon. Her awareness does, however, bear on
whether the Defendant accomplished the robbery with it under these facts. Had the victim in this
case believed her pistol, now in the Defendant’s possession, to be loaded, we think she might
reasonably have believed, even in the darkness of her living room, that the Defendant’s request for
money carried with it a threat to use the firearm if she failed to comply. The victim’s knowledge that
the pistol was unloaded foreclosed this possibility. In its absence, we are left with the fact that the
Defendant did nothing perceptible with the pistol after disarming the victim. He did not point it at
her or draw his arm back as if to threaten her; no evidence suggests that he did anything but hold the
pistol in his hand or put it in one of his pockets. For these reasons, we are persuaded that the
Defendant did not accomplish the robbery with the victim’s pistol after he disarmed her.

        For the reasons discussed above, we conclude that, under the facts and circumstances of this
case, the Defendant neither accomplished the robbery with, or by display of, the victim’s pistol or
any other deadly weapon. Because the State proved no other aggravating factor, its evidence was
therefore insufficient to convict the Defendant of aggravated robbery. Accordingly, we modify his
conviction to simple robbery. We remand for resentencing.

II. Variance Between Indictment and Jury Instruction
        The Defendant next directs our attention to a variance between the language under which he
was indicted for aggravated burglary and the language the trial court used when charging the jury
regarding aggravated burglary. Count Two of the Defendant’s indictment charges him with
“enter[ing] the habitation of Clara Rita Groseclose, without the effective consent of the owner and
with the intent to commit a felony and theft therein, in violation of Tennessee Code Annotated,
Section 39-14-403, a Class C felony. . . .” (Emphasis added). That code section defines aggravated
burglary as “burglary of a habitation.” Tenn. Code Ann. § 39-14-403(a). Tennessee Code Annotated
section 39-14-402(a) sets forth, in relevant part, that “a person commits burglary who, without the
effective consent of the property owner . . . [e]nters a building . . . not open to the public, with intent
to commit a felony, theft, or assault.” (Emphasis added). The indictment thus incorrectly charges
the Defendant with the intent to commit both a felony and a theft in the victim’s home, whereas
either a felony or a theft suffices under the code. The trial court instructed the jury that a verdict of
guilty required a finding that the Defendant “entered with the intent to commit a robbery, a felony,
or a theft.” Because all robberies are felonies, see Tennessee Code Annotated sections 39-13-401,-
403, the trial court’s instruction conformed to the requirements of the Tennessee Code.




                                                   -10-
        The State correctly notes that the Defendant failed to object to this variance at trial, and he
did not raise it as an issue in his motion for a new trial. He may therefore have waived the issue on
two grounds. See Tenn. R. App. P. 36(a), Tenn. R. App. P. 3(e). We must treat this issue as waived
unless it is deemed to be plain error. Tenn. R. App. P. 52(b). Plain error requires that five factors
be established: (1) “the record must clearly establish what happened in the trial court”; (2) “a clear
and unequivocal rule of law must have been breached”; (3) “a substantial right of the accused must
have been adversely affected”; (4) “the accused did not waive the issue for tactical reasons”; and (5)
“consideration of the error is necessary to do substantial justice.” State v. Adkisson, 899 S.W.2d
626, 641-42 (Tenn. Crim. App. 1994).

        Tennessee no longer follows the early common law rule requiring the indictment and the
proof to conform in all respects. State v. Moss, 662 S.W.2d 590, 592 (Tenn. 1984). “[B]efore a
variance will be held to be fatal it must be deemed to be material and prejudicial.” Id. The
Tennessee Supreme Court has outlined the following rule for assessing whether a variance is
prejudicial:

                Unless substantial rights of the defendant are affected by a variance, he has
       suffered no harm, and a variance does not prejudice the defendant’s substantial rights
       (1) if the indictment sufficiently informs the defendant of the charges against him so
       that he may prepare his defense and not be misled or surprised at trial, and (2) if the
       variance is not such that it will present a danger that the defendant may be prosecuted
       a second time for the same offense; all other variances must be considered to be
       harmless error.

Id. See also Berger v. United States, 295 U.S. 78, 82 (1935) (announcing the rule adopted in Moss).

        We must first determine, therefore, whether Count Two of the indictment sufficiently
informed the Defendant of the charges against him. The indictment correctly directs the Defendant
to the code section under which he is being charged; that code section, in defining aggravated
burglary, specifically refers to the immediately preceding section, Tennessee Code Annotated section
39-14-402, which defines burglary. The indictment thus sufficiently informed the Defendant that
he was charged with aggravated burglary and that the State would be required to prove only his intent
to commit a “felony, theft, or assault.” Under these circumstances, the Defendant cannot credibly
claim the variance rendered him unable to prepare a defense. He also cannot claim to have been
misled by the indictment or surprised by the proof offered at trial.

        We must next determine whether the variance is such that the Defendant could be prosecuted
again for the same offense. It is not. The indictment and the proof offered at trial establish that the
State prosecuted the Defendant for a March 29, 2005 burglary of Clara Rita Groseclose. The
variance here does nothing to obscure the precise conduct prosecuted in this case, and therefore does
not create the risk of a second prosecution for that conduct. Accordingly, we conclude that the
variance was not prejudicial, and we need not reach the question of materiality. Because the trial



                                                 -11-
judge therefore violated no rule of law in instructing the jury, the Defendant has not established plain
error. This issue lacks merit.

III. Denial of Right to Jury Trial
       The Defendant next contends that he was denied his right to a trial by jury. He bases this
argument on a few exchanges between the court and one of the Defendant’s jurors regarding some
hearing problems the juror was experiencing. After four witnesses had testified, and while the court
was directing jurors not to communicate with each other about the case, the following exchange
occurred:
       [The State]: Judge, if we could, I think some of the jurors are having trouble hearing.
       [Juror]: Yes.
       [The Court]: Okay, we had the microphone off. Let me start all over because this is
       very important. So I’ll start back and read the whole thing again.
       [Juror]: I have problems hearing you anyway.
       [The Court]: Okay.
       [Juror]: Do you want one of those thingies?
       [Juror]: Yeah.
       [Juror]: Can we have one of those amplifier [sic], please?
       [The Court]: Yeah, we have those available . . . .
       ...
       [The Court]: Does anybody else need an amplifier besides Mrs. Curtis? Okay, you
       all go with the officer. We’ll make arrangements to have one of those brought over.
       If you’d go with the—take the Jury out.
       [Juror]: I’m sorry.
       [The Court]: Juror Curtis indicates she was having some trouble hearing because she
       has a hearing problem. And we’re going to take this recess to get an amplifying
       device that’s been furnished to the court.

         After the jury returned from lunch, discussion about the hearing aid device continued:
        [The Court]: Mrs. Curtis, have you been furnished with the amplifying device?
        [Juror]: Yes, I have, sir.

        [The Court]: Has the officer given instructions on how to operate it?
        [Juror]: Yes, sir. I can hear you fine now. Thank you.
        ...
        [The Court]: All right. Would you be hesitant to speak up [in jury deliberations] and
        say, “I can’t hear you”?
        [Juror]: Yes. No, I wouldn’t be hesitant, no.
        Following direct examination of the next witness, the trial court confirmed that Juror Curtis
would immediately inform a court officer if anything went wrong with the hearing device. Shortly
thereafter she informed the court that the device had stopped working, saying “[i]t just went, sir.”
The court took a recess to examine the device, then continued when it began to operate again. A few
minutes later, Juror Curtis again informed the court that the device had stopped working. This time,


                                                 -12-
a court officer found and repaired a loose wire that had apparently caused the problem. The court
again asked Juror Curtis to immediately speak up if the device malfunctioned again. It continued
to work throughout the rest of the trial.

        The State again correctly notes that the Defendant failed, at any time, to object to Juror
Curtis’ participation in the trial. The Defendant has thus waived this point of error, see Tennessee
Rule of Appellate Procedure 36(a), unless he can successfully demonstrate plain error. Tenn. R.
App. P. 52(b). We conclude that the trial court breached no clear and unequivocal rule of law, and
thus, did not commit plain error. See Adkisson, 899 S.W.2d 641-42.

        “The right to a trial by jury is a fundamental right preserved by article I, § 6 of the Tennessee
Constitution and has ‘special resonance in criminal matters.’” State v. Cleveland, 959 S.W.2d 548,
551 (Tenn. 1997) (quoting Ricketts v. Carter, 918 S.W.2d 419, 424 (Tenn. 1996)). Tennessee Code
Annotated section 22-1-102(b) provides that “[p]ersons not in the full possession of the senses of
hearing or seeing shall be excluded from service on any jury if the court determines, of its own
volition or on motion of any party, that such person cannot provide adequate service as a juror on
such jury.” “Unless there has been clear abuse, the trial court’s discretion in determining the
qualifications of jurors is not subject to review.” State v. Mickens, 123 S.W.3d 355, 375 (Tenn.
Crim. App. 2003) (citing Lindsey v. State, 255 S.W.2d 533, 538 (Tenn. 1949)).

        The Defendant argues that Juror Curtis failed to hear testimony both before and after she was
provided with a hearing device. We disagree. Nothing in the record indicates that the trial court
abused its discretion in failing to conclude that Juror Curtis had missed some or all of the testimony
of the four witnesses that preceded her request for an amplifier. She simply stated that she “ha[d]
problems hearing” the trial judge, even when he had his microphone on. Although the court did not
specifically ask Juror Curtis whether she had missed any testimony, we conclude that her statements
on the subject indicate, at most, that she had experienced some difficulty in hearing and wanted
assistance.

        The record contains no suggestion at all that Juror Curtis missed any testimony after the court
provided her with an amplifier. The amplifier malfunctioned on two occasions; both times, Juror
Curtis promptly notified the court, which ordered recesses to address the problem. This issue is
therefore without merit.

IV. Erroneous Expert Witness Jury Instruction
         The Defendant next contends that the trial court improperly instructed the jury that Det.
Quillen had been qualified as an expert in “gunshot wounds and gunshot stippling.” The State again
notes that the Defendant failed to object to this characterization and also failed to object to Det.
Quillen giving his expert opinion at trial. The Defendant has therefore also waived this point of
error, see Tennessee Rule of Appellate Procedure 36(a), unless he can successfully demonstrate plain
error. Tenn. R. App. P. 52(b).




                                                  -13-
        Unless qualified as experts, witnesses may only offer opinions or inferences which are both
“rationally based on the perception of the witness” and “ helpful to a clear understanding of the
witness’s testimony or the determination of a fact in issue.” Tenn. R. Evid. 701(a). Tennessee Rule
of Evidence 702 provides that “[i]f scientific, technical, or other specialized knowledge will
substantially assist the trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training, or education may testify in
the form of an opinion or otherwise.” This Court has held that “lay opinion testimony under Rule
701 is limited to those observations of a lay witness that are not based on scientific, technical, or
other specialized knowledge which would qualify the witness as an expert under Rule 702.” State
v. Timothy Murrell, No. W2001-02279-CCA-R3-CD, 2003 WL 21644591, at *6 (Tenn. Crim. App.,
Jackson, July 2, 2003) (citing United States v. Conn, 297 F.3d 548, 553 (7th Cir. 2002)).

        Although it elicited foundational testimony regarding his years of police experience and his
familiarity with gunpowder stippling, the State stopped short of qualifying Det. Quillen as an expert
in powder burn recognition. As a result, he testified as a lay witness when offering his opinions
about the wound on the Defendant’s face. This opinion testimony, however, was based on the sort
of “specialized knowledge” not allowed under Rule 701. Id. The State specifically asked him to
give his opinion based on his training and experience. This training and experience enabled him to
recognize the Defendant’s “road rash type injury” as gunpowder stippling. Had the Defendant
objected, the trial court therefore should have excluded this evidence until Det. Quillen was qualified
as an expert witness.

        In the absence of an objection, however, the trial court did not commit plain error. True, Det.
Quillen’s opinion regarding the nature of the Defendant’s facial injury tended to identify the
Defendant as the victim’s assailant. Absent this testimony, however, the jury still had more than
sufficient evidence of the Defendant’s identity, including the primer residue on his jacket, his later
possession of the victim’s purse and pistol, and the other testimony discussed previously. The
admissions of the testimony therefore did not adversely affect any substantial right of the Defendant.
 Even if considered as error, we conclude the error was harmless. This Defendant is not entitled to
relief on this issue.

V. Sentencing
        The Defendant makes two sentencing claims: that the trial court improperly enhanced his
sentence and that it improperly ordered consecutive sentences. Before a trial court imposes a
sentence upon a convicted criminal defendant, it must consider (a) the evidence adduced at the trial
and the sentencing hearing; (b) the presentence report; (c) the principles of sentencing and arguments
as to sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e)
evidence and information offered by the parties on the enhancement and mitigating factors set forth
in Tennessee Code Annotated sections 40-35-113 and 40-35-114; and (f) any statement the
defendant wishes to make in the defendant’s own behalf about sentencing. See Tenn. Code Ann. §
40-35-210(b); State v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002). To facilitate appellate review, the
trial court is required to place on the record its reasons for imposing the specific sentence, including
the identification of the mitigating and enhancement factors found, the specific facts supporting each


                                                 -14-
enhancement factor found, and the method by which the mitigating and enhancement factors have
been evaluated and balanced in determining the sentence. See State v. Samuels, 44 S.W.3d 489, 492
(Tenn. 2001).

         Upon a challenge to the sentence imposed, this Court has a duty to conduct a de novo review
of the sentence with a presumption that the determinations made by the trial court are correct. See
Tenn. Code Ann. § 40-35-401(d). However, 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). If our review reflects that
the trial court followed the statutory sentencing procedure, that the court imposed a lawful sentence
after having given due consideration and proper weight to the factors and principles set out under
the sentencing law, and that the trial court’s findings of fact are adequately supported by the record,
then the presumption is applicable, and we may not modify the sentence even if we would have
preferred a different result. See State v. Fletcher, 805 S.W. 2d 785, 789 (Tenn. Crim. App. 1991).
We will uphold the sentence imposed by the trial court if (1) the sentence complies with the purposes
and principles of the 1989 Sentencing Act and (2) the trial court’s findings are adequately supported
by the record. See State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). The burden of showing that
a sentence is improper is upon the appealing party. See Tenn. Code Ann. § 40-35-401, Sentencing
Commission Comments; Arnett, 49 S.W.3d at 257.

        A. Improper Enhancement of Sentence
        The Defendant argues that the trial court improperly enhanced his sentences for aggravated
burglary and aggravated robbery.4 Aggravated robbery is a Class B felony, while aggravated
burglary is a Class C felony. Tenn. Code Ann. §§ 39-13-402(b), -14-403(b). As a Range I, standard
offender, the Defendant was subject to sentencing ranges of eight to twelve years for the former, and
three to six years for the latter. See Tenn. Code Ann. § 40-35-112(a)(2), (3). The trial court imposed
the maximum sentence for each conviction, finding as enhancement factors that the Defendant had
“a previous history of criminal convictions and criminal behavior, in addition to those necessary to
establish the appropriate range” and that the victim “was particularly vulnerable because of age or
physical or mental disability.” Tenn. Code Ann. § 40-35-114(1), (4).

        The Tennessee legislature recently amended several provisions of the Criminal Sentencing
Reform Act of 1989, those changes becoming effective June 7, 2005. The trial court specifically
sentenced the Defendant pursuant to the 2005 amendments. The Defendant’s crimes occurred prior
to that date, and he was sentenced after it. As such, the Defendant could have elected to be
sentenced under the revised Act by executing a waiver of his ex post facto protections, be he did not.
See Tenn. Pub. Acts ch. 353, § 18. Thus, he should have been sentenced under the 2003 codification
of the Act. That sentencing scheme violated the Supreme Court’s requirement that “[o]ther than the
fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.” Apprendi


        4
          We note, of course, that we have modified this conviction and that the Defendant will be resentenced for
simple robbery.

                                                      -15-
v. New Jersey, 530 U.S. 466, 490 (2000). The statutory maximum “is not the maximum sentence
a judge may impose after finding additional facts, but the maximum he may impose without any
additional findings.” Blakely v. Washington, 542 U.S. 296, 305-06 (2004).

        The Defendant argues that the trial court violated his Sixth Amendment rights in considering
the age and particular vulnerability of the victim, because those facts were not submitted to a jury
and proved beyond a reasonable doubt. The Defendant concedes that, because he failed to object
at sentencing to this consideration, we are limited to plain error review. The Defendant points to
State v. Gomez, 239 S.W.3d 733 (Tenn. 2007) (referred to herein as “Gomez II”) to demonstrate
plain error here.

         In Gomez II, our supreme court held unconstitutional the enhancement of certain defendants’
sentences based on their prior criminal histories, as authorized by Apprendi, but also based on two
factors not submitted to a jury. Id. at 736. As in this case, the Gomez II trial court gave “great
weight” to the defendants’ criminal histories. Id. at 742. “That the trial court accorded ‘great
weight’ to the [d]efendants’ prior criminal histories, [did] not necessarily render irrelevant its
application of [other enhancement factors],” however. Id. at 743. In the portion of its plain error
review focusing on whether “consideration of the error [was] necessary to do substantial justice,”
Adkisson, 899 S.W.2d 641-42, the Gomez II court emphasized that, in order to avoid
unconstitutionality, the record of a defendant’s criminal history must be sufficiently well-developed
to allow reliance on that factor alone in enhancing a sentence. Gomez, 239 S.W.3d 743. In Gomez
II, the record, which demonstrated only one theft conviction, was not sufficiently well-developed.
Id.

        We are unable to conclude that the record in this case is sufficiently well-developed to
support the maximum sentences based solely on enhancement for the Defendant’s prior criminal
history under Tennessee Code Annotated section 40-35-114(1). The court considered one felony
conviction for burglary in Maryland, as well as four misdemeanor convictions, including two
instances of reckless driving, one instance of public intoxication, and one instance of marijuana
possession. We have determined that the Defendant’s conviction for aggravated robbery must be
modified to robbery. We have also determined that this case must be remanded for sentencing for
the robbery conviction. Because it appears that the Defendant’s sentence for aggravated burglary
was improperly enhanced, in part, based on a factor prohibited by Blakely, we vacate the sentence
imposed for that offense and remand for resentencing.

       B. Improper Consecutive Sentencing
       The Defendant next contends that the trial court improperly ordered him to serve his sentence
for aggravated burglary consecutive to his sentence for aggravated robbery. Tennessee Code
Annotated section 40-35-115(b) lists the criteria a court must use to determine whether a defendant
convicted of more than one criminal offense will serve the resulting sentences consecutively or
concurrently. The trial court in this case ordered the Defendant to serve his sentences consecutively
based only on its finding, by a preponderance of the evidence, that the Defendant “is a dangerous
offender whose behavior indicates little or no regard for human life, and no hesitation about


                                                -16-
committing a crime in which the risk to human life is high.” Tenn. Code Ann. § 40-35-115(b)(4).
Although the decision between consecutive and concurrent sentencing is within the sound discretion
of the trial court, see State v. James, 688 S.W.2d 463, 465 (Tenn. Crim. App. 1984), “the imposition
of consecutive sentences on an offender found to be a dangerous offender requires, in addition to the
application of general principles of sentencing, the finding that an extended sentence is necessary
to protect the public against further criminal conduct by the defendant and that the consecutive
sentences must reasonably relate to the severity of the offenses committed.” State v. Wilkerson, 905
S.W.2d 933, 939 (Tenn. 1995).

        The court found that the Defendant’s status as a dangerous offender was “certainly
demonstrated by the way the gun was used, the struggle over the gun and the injury, breaking the
window out, elderly lady there 83 years of age.” Because the Defendant did not introduce any deadly
weapon into his struggle with the victim, the court largely relied, in concluding that the risk to
human life was high, on its conclusion that the Defendant knew the victim’s age before entering her
house. The trial court reasoned that the victim had turned off a light in her television room moments
before starting up her stairs and that the room was therefore lit well enough to give the Defendant,
standing outside her unobstructed window, a clear view inside. The record contains no evidence that
the victim had turned a light off, however; the only light in the room came from the victim’s
television.

         It is unclear whether her television emitted enough light to be noticeable outside her window;
it is therefore also unclear whether or not the victim, when she turned off the television, alerted the
Defendant to her presence inside the house. The record thus does not support a finding that the
Defendant knew the victim’s age, or knew of her presence, before entering her house.

        Regardless, we conclude that the trial court did not abuse its discretion in finding that “the
way the gun was used” and “the struggle over the gun” justified its classification of the Defendant
as a dangerous offender. The Defendant, acting at night, chose to break into a home he had no
reason to believe was unoccupied. Once inside, as evidenced by his deliberate disarming of the
victim, he immediately perceived a person pointing a pistol at him. He unhesitatingly wrestled the
victim to the ground, resulting in the uncontrolled discharge of the pistol’s second bullet.
Fortunately, the second shot only lightly injured the victim. The risk to her life was high, however.

       The Defendant next argues that the trial court abused its discretion in sentencing him
consecutively as a dangerous offender because it failed to find, as required by Wilkerson, that an
extended sentence was necessary to protect the public from the Defendant, or that consecutive
sentences reasonably related to the severity of the Defendant’s offenses. We must agree. The record
contains no consideration of the Wilkerson requirements. The trial court therefore failed to properly
apply Tennessee Code Annotated section 40-35-115(b)(4) to impose consecutive sentences on the
Defendant. Accordingly, we direct the trial court to revisit, during sentencing for the simple robbery
conviction and resentencing for aggravated burglary, the issue of consecutive sentences.

                                             Conclusion


                                                 -17-
       Based upon the foregoing authorities and reasoning, we modify the Defendant’s conviction
for aggravated robbery to a conviction for simple robbery and remand for sentencing for that
conviction. We also vacate the sentence imposed for aggravated burglary and remand for
resentencing. We also remand for reconsideration of the consecutive nature of the Defendant’s
sentences. We otherwise affirm the judgments of the trial court.



                                                    ______________________________
                                                    DAVID H. WELLES, JUDGE




                                             -18-
