        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                    April 9, 2013 Session

             STATE OF TENNESSEE v. ANTONIO GRANDBERRY

                   Appeal from the Criminal Court for Shelby County
                     No. 11-00455 James M. Lammey, Jr., Judge


                 No. W2012-00615-CCA-R3-CD - Filed June 21, 2013


Antonio Grandberry (“the Defendant”) was convicted by a jury of especially aggravated
robbery. Pursuant to an agreement between the Defendant and the State, the trial court
sentenced the Defendant to eighteen years’ incarceration. On appeal, the Defendant argues
that the evidence presented at trial was insufficient to support his conviction. Additionally,
the Defendant asserts that the trial court erred in not instructing the jury on the offense of
facilitation of especially aggravated robbery. After a thorough review of the record and the
applicable law, we conclude that the evidence is insufficient to support a conviction of
especially aggravated robbery or any of the lesser-included offenses pertaining to robbery but
is sufficient as to the lesser-included offense of aggravated assault. Accordingly, we modify
the Defendant’s especially aggravated robbery conviction to aggravated assault and remand
this matter for a new sentencing hearing.

                    Tenn. R. App. P. 3 Appeal as of Right; Judgment
                of the Criminal Court Affirmed as Modified; Remanded

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which A LAN E. G LENN, J., joined.
J OHN E VERETT W ILLIAMS filed a separate opinion, dissenting in part and concurring in part.

Neil Umsted, Memphis, Tennessee, for the appellant, Antonio Grandberry.

Robert E. Cooper, Jr., Attorney General & Reporter; Sophia S. Lee, Senior Counsel; Amy
Weirich, District Attorney General; and Chris Larreau, Assistant District Attorney General,
for the appellee, State of Tennessee.
                                        OPINION

                          Factual and Procedural Background

      A Shelby County Grand Jury indicted the Defendant on one count of especially
aggravated robbery. The Defendant proceeded to a jury trial held February 27-March 1,
2012.

       Tony Deangelo Tapplin, the victim, testified at trial that he graduated from Sheffield
High School in 2009. Tapplin explained that he drove Sam Vester and a couple of Vester’s
friends to a party on September 25, 2010. He denied that anyone was drinking or “smoking
weed” at the party. He continued,

       When I came in I seen [sic] one of my kinfolks. I shook his hand. And then
       I came on the dance floor, sitting there a couple of minutes and then one of my
       songs came on, start dancing. And after while I seen [sic] people walking
       around with guns. That was the whole purpose of me leaving the party.

Tapplin remembered seeing “[a] couple handguns and one big long gun.” While Tapplin was
on the dance floor, he observed other individuals “flashing money,” so he began doing so as
well. According to Tapplin, “It’s just something young people do.” He denied seeing the
Defendant at the party. He estimated that he stayed at the party for approximately an hour.

       After leaving the party, Tapplin went to sit in the driver’s seat of his car at
approximately 1:00 or 2:00 am. Soon after, he heard gunshots, and Vester and his friends
ran toward the car. Several other individuals also ran toward his vehicle.

       The first man who approached Tapplin in his car was “short and dark skinned” and
had a handgun. This man opened the door and told Tapplin, “Give me everything you got.”
According to Tapplin, the man hit Tapplin with the handgun, and then another man
approached from the front passenger side and punched Tapplin in the face. While he was
getting punched, the man with the handgun searched Tapplin’s pockets and took Tapplin’s
money and cell phone. According to Tapplin,

       Once he get [sic] my money, he keep on asking me do I go [sic] some more.
       I’m like, I ain’t go no more. He go in my pocket and I ain’t got nothing else.
       Then he closed the door. Then the big dude come with a big ole baseball bat,
       hit my window.




                                             -2-
        After this individual shattered Tapplin’s window, Tapplin observed a man he
identified as the Defendant approach him and shoot him. He was “100 percent positive” that
it was the Defendant who shot him, and he was adamant that he had not seen the Defendant
before this incident. He estimated that this entire incident lasted “[a] little bit more” than
thirty seconds. The individuals left, and Tapplin fled from the vehicle and ran behind a
house. He heard some of the men return and say, “[H]e’s not in the car.” He believed that
these men then damaged his car more because

       when I was in the car they only hit one window, the window I was in. But
       once I seen [sic] my car it was brutally bad. The two headlights was [sic]
       messed up, the front window, the back window, my window and the front
       rearview mirror, . . . and the hood was beat up.

       Tapplin identified from a photograph of his vehicle the bullet hole from the bullet that
entered his vehicle and hit him. According to Tapplin, the Defendant was within arm’s reach
of the vehicle at the time that he shot Tapplin.

      Tapplin stood during trial and identified the entrance and exit wounds of the bullet,
which were in his left knee area. His injury required surgery and the insertion of a metal rod.
He was in the hospital for two weeks and was unable to walk for six months.

        After a nearby resident called the police, Tapplin waited for approximately ten
minutes before police or an ambulance arrived. He could not remember whether he spoke
to police at the scene. He knew that he lost a lot of blood, but he remained conscious while
waiting for emergency personnel. Sometime between 3:05 and 3:30 a.m., Tapplin arrived
at the hospital. Approximately seven hours later, police officers visited him in the hospital
and showed him a photographic lineup. Tapplin identified the lineup at trial on which he had
circled the picture of the Defendant and wrote, “He shot me.” He could not recall whether
he was taking pain medication at the time but confirmed that he identified the Defendant with
a “clear head.”

       On cross-examination, Tapplin agreed that his car was facing the house where the
party was. At the point that he heard the gunshots, he observed a large group running toward
the car. He believed that more than twenty people were in this group running toward and
surrounding the car, and, initially, he did not see any guns or bats.

       Tapplin explained that the man who punched him from the passenger side
immediately ran away after searching through the car for valuables. The short, “dark
skinned” man with the handgun, however, stayed nearby, shut the door, and only “backed
back” after searching Tapplin. Tapplin stated that this man “was still at the car though.” The

                                              -3-
man with the bat then hit and shattered the driver’s side window. At this point, he observed
the Defendant walking toward him with an assault rifle pointed at him.

       Tapplin denied that the Defendant was wearing a hat. He confirmed that he did not
see the Defendant at the party interacting with these other individuals. He stated that, after
he was shot, “I seen [sic] where they were going. Once he shot me I leaned down. Then I
looked back upon and I seen [sic] . . . the big guy with the bat walking toward [the
Defendant] walking back up and the short black guy walking up towards the house.”

       Tapplin also acknowledged that he had$1,000 in cash on his person before leaving
with Vester for the party. He denied that any fight occurred at the party prior to his seeing
the guns and deciding to leave.

        Tapplin did not remember speaking with officers at the scene. Specifically, he did not
recall telling officers at the scene that he was hit in the head with a bat while inside the house
at the party. He also denied telling the officers that the Defendant took his money or that
“several people were jumping on [his] car beating it with bats and sticks.”

        Tapplin also denied telling Sergeant Beasley at the hospital that the Defendant was
five feet, six inches tall or that he was wearing a white polo. He was certain that the
Defendant was not wearing a hat. Additionally, he denied telling Sergeant Beasley that he
left the party because he thought the party was boring. He did not recall receiving pain
medication when he arrived at the hospital.

       Tapplin remembered testifying at a juvenile proceeding involving the Defendant
during which he identified the Defendant as the person who shot him. He never was able to
retrieve his money or cell phone.

       The defense called Sergeant Beasley with the Memphis Police Department (“MPD”)
as the next witness.1 He testified that he spoke with Tapplin at the hospital sometime
between approximately 3:00 to 3:30 a.m. on September 25, 2010. He recalled that Tapplin
was “coherent, lucid, nothing out of the ordinary.” He did not take a formal written
statement but simply took brief notes while speaking with Tapplin to include in a
“supplement” to the case. Tapplin described to him that the man with the shotgun was “a
male black, short in stature, medium complexion and a white polo shirt.” Tapplin told him
this individual was “about five-six” and in his late teens or early twenties. As to the



        1
         The defense called Sergeant Beasley out of order, with the permission of the trial court, due to
Sergeant Beasley’s unavailability later in the trial.

                                                  -4-
individual with the handgun, Tapplin described him to Sergeant Beasley as “[s]hort, dark
complexion, white T-shirt, [and] armed with a handgun.”

      Tapplin also told Sergeant Beasley that he left the party because he thought the party
was boring and that it was the man with the shotgun, not the handgun, who said to Tapplin,
“[G]ive me everything you got, I know you got some more.” Tapplin never told Sergeant
Beasley about a man with a bat.

       On cross-examination, Sergeant Beasley admitted that he had no independent
memories apart from the supplement he completed regarding the description that Tapplin
gave him. He acknowledged that the description of the two males was not within quotation
marks as other parts of the interview with Tapplin, so he could not verify that Tapplin gave
him the descriptions verbatim as written.

      Sam Vester, Tapplin’s friend, testified as the State’s next witness that he was with
Tapplin on the night that Tapplin was shot. Vester testified,

       As I was approaching to leave the party, I was walking towards Tony
       Tapplin[’s] car and then about three minutes when I got into the car, they was
       [sic] yelling get out of the car, lay everything down. So I got out of the car and
       laid on the ground. As I laid on the ground, the person who had the bat was
       swinging the bat at me. I tried to get up and I put my hand over my face and
       I got hit with the bat across my elbow and I fell on the ground. I give it about
       three minutes after I heard some gunfire, I ran.

       He confirmed that, at the time the incident ensued, he was sitting in the vehicle with
Tapplin and another individual, Tevin Bennett. Vester remembered that “more than ten”
individuals surrounded Tapplin’s vehicle during this incident. He denied seeing people with
guns and did not remember giving a statement that he “saw two individuals with bats and one
person with a shotgun and one person with a handgun.” He stated that he could not see
anyone because it was so dark outside.

       He remembered that he and Tapplin followed Vontario Edwards to the party. He
recalled that Edwards’ vehicle was a maroon or “red color” Ford Taurus.

        On cross-examination, Vester identified a photographic lineup sheet bearing his
signature that contained a red check mark next to “The witness was unable to make a positive
identification.” Although he told police at the scene that he saw a shotgun, he explained at
trial that he only heard the gunshot and assumed it was from a shotgun based on the sound.



                                              -5-
         Leon Plummer testified that he and his brother hosted a party at 3436 Red Coat on the
evening of September 24, 2010. He stated that he had known the Defendant since the
Defendant was in elementary school. Plummer had advertised this party on a social
networking website, and he estimated that more than 200 people attended the party, many of
whom he did not know. He recalled that music was playing and people were “flashing
money.” At some point, he observed “a lot of people barging out the door,” and, at that
point, he saw the Defendant walking toward the street with an “SKS.” Plummer recalled that
the Defendant was wearing a white shirt. At some point, Plummer heard a gunshot and
someone yell, “[Y]ou know what this is,” and Plummer went back inside the house. A little
later, the Defendant returned to the house with the “SKS.” Plummer watched the Defendant
place the gun under a mattress. When the police arrived, Plummer initially denied that any
weapons were in the house. However, when the police told him that his grandmother, who
owned the house, could be charged criminally, he told the police where the rifle was and that
it belonged to the Defendant.

      Plummer recalled that the Defendant was wearing a gray shirt when the police arrived,
which was approximately twenty to thirty minutes after he observed the Defendant hide the
gun. He identified a photographic lineup bearing his signature on which he had circled the
Defendant’s picture and wrote, “This is [the Defendant] and he had the SKS.”

        Plummer knew that an individual who goes by “Squeaky” had a bat, and he heard
others say that this person returned to the vehicle after the robbery and began hitting the car
again. He also knew that “Duke” and “Bam” were the two men who “hopped in the bed with
[his] grandmother” when the police arrived.

        On cross-examination, Plummer agreed that people were drinking alcohol and
smoking marijuana at the party. He also remembered that the Defendant, prior to the
shooting, was wearing a white t-shirt, jeans, and a gray hat. He confirmed that both the
“SKS” and a 38-revolver were hidden underneath his brother, Jake Plummer’s, bed when
police arrived. He explained that another brother, Jerome Ewing, owned the “SKS.” On
redirect examination, however, he stated that Ewing no longer owned the gun on the night
of the incident.

        Officer Demar Wells, a crime scene investigator with the MPD, testified that he
responded to a call on Red Coat Street on September 25, 2010. He entered a bedroom of the
house where he found a revolver handgun and wood-bodied rifle. From the revolver, he
recovered five live rounds and one spent shell casing. On cross-examination, he denied
finding any nine millimeter rounds at the scene. He also denied ever receiving a request to
test either weapon for fingerprints.



                                              -6-
       Sergeant Michael Rosario with the MPD testified that his involvement in this incident
included creating a photographic lineup. After creating the lineup, he accompanied some
other officers to the hospital to meet with Tapplin. Tapplin signed an “advice of rights” form
at 10:06 a.m. regarding the photographic lineup. Within seconds of showing Tapplin the
photographic lineup, Tapplin identified the Defendant as the shooter.

       On cross-examination, he confirmed that his notes had no instructions to include
“Squeaky,” “Duke,” or “Bam” in the photographic lineup. Contrary to Tapplin’s testimony,
his recollection was that Tapplin identified the Defendant not only as the shooter but also as
the person who stole his $1,000.

       At the conclusion of the State’s proof, the defense moved for judgment of acquittal,
and the trial court denied the motion. The Defendant chose not to testify. Prior to calling the
defense witness, the trial court discussed the jury charge with the State and the defense
outside the presence of the jury. The defense objected to the proposed instruction regarding
criminal responsibility, and the trial court overruled the objection. The defense then
requested that the trial court include instructions on solicitation and facilitation. The trial
court denied both requests. Regarding facilitation, the trial court stated,

       Facilitation is where someone lends substantial assistance to someone but not
       having the same intent as the main principal. I don’t know how you can make
       that jump. There’s nothing in the record that says that he didn’t have the intent
       to rob this individual himself.

After the conclusion of further discussion regarding the proposed charges, the defense then
proceeded with its case in chief.

        Dr. Jeffrey Neuschatz testified as an expert in eyewitness identification. He currently
worked as an associate professor and chair of the psychology department at the University
of Alabama in Huntsville. He had never met the Defendant and stated that the purpose of
his testimony was “to educate the Court and the jury about issues related to eyewitness
identification.” He testified,

       What happens is when you watch a complex event, you’re taking fragments of
       that event. It’s not a complete record. And you fill that in with gaps with what
       you already know happens in those situations so you put this all together to
       form memory. And once you have a memory, it’s not like a picture. . . . Every
       time you revisit a memory, retell it, rethink about it, it can change
       dramatically. . . . We may strip away details that don’t seem plausible given



                                              -7-
       what we know about events or we may add in other details that we know
       probably happened in those events even if don’t have a good memory of them.

       Dr. Neuschatz continued,

       [T]he research shows that when you’re in a stressful situation that your
       memory is impaired so that some people have the belief that when you’re in
       a very stressful situation you can take a snapshot of what’s going on and you
       can remember it. Turns out in identification situations that’s not the case.
       People are exposed to high stress situations, their identification accuracy seems
       to be worse or is worse than people who are not exposed to high stress
       situations.

        Dr. Neuschatz reviewed Tapplin’s testimony from the juvenile proceeding. Based on
that review, Dr. Neuschatz believed that Tapplin underwent a very stressful situation during
the course of the events related to this case. He explained, “There’s a term called weapon
focus. And the idea is that when there’s a weapon, people focus on the weapon as opposed
to when there’s not a weapon. It hurts their identification accuracy.” He believed that it
would be difficult for someone to identify another person when it is dark outside, there is
only three seconds of viewing time, there is a gun present, and “the viewer had just been
pistol whipped and punched and robbed.” On cross-examination, however, Dr. Neuschatz
acknowledged that a person focusing on someone’s hair could help aid that person’s memory.
He also agreed that the better practice for memory retention is to show someone a
photographic lineup as soon after the event as possible.

       At the conclusion of the proof, the jury deliberated and found the Defendant guilty of
especially aggravated robbery. At a subsequent hearing, the trial court sentenced the
Defendant to eighteen years’ incarceration pursuant to a sentencing agreement between the
State and the Defendant.

       The Defendant filed a motion for new trial, which the trial court subsequently denied.
The Defendant now appeals, arguing that the evidence presented at trial was insufficient to
support his conviction. Additionally, he contends that the trial court erred in not instructing
the jury on the offense of facilitation.




                                              -8-
                                               Analysis

                                     Sufficiency of the Evidence

       The Defendant challenges the sufficiency of the evidence supporting his conviction
for especially aggravated robbery. Our standard of review regarding sufficiency of the
evidence is “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Tenn.
R. App. P. 13(e). After a jury finds a defendant guilty, the presumption of innocence is
removed and replaced with a presumption of guilt. State v. Evans, 838 S.W.2d 185, 191
(Tenn. 1992). Consequently, the defendant has the burden on appeal of demonstrating why
the evidence was insufficient to support the jury’s verdict. State v. Tuggle, 639 S.W.2d 913,
914 (Tenn. 1982).

       The appellate court does not weigh the evidence anew. Rather, “a jury verdict,
approved by the trial judge, accredits the testimony of the witnesses for the State and resolves
all conflicts” in the testimony and all reasonably drawn inferences in favor of the State. State
v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, “the State is entitled to the strongest
legitimate view of the evidence and all reasonable or legitimate inferences which may be
drawn therefrom.” Id. (citation omitted). This standard of review applies to guilty verdicts
based upon direct or circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn.
2011) (citing State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). In Dorantes, our
Supreme Court adopted the United States Supreme Court standard that “direct and
circumstantial evidence should be treated the same when weighing the sufficiency of such
evidence.” Id. at 381. Accordingly, the evidence need not exclude every other reasonable
hypothesis except that of the defendant’s guilt, provided the defendant’s guilt is established
beyond a reasonable doubt. Id.

       The weight and credibility given to the testimony of witnesses, and the reconciliation
of conflicts in that testimony, are questions of fact. State v. Bland, 958 S.W.2d 651, 659
(Tenn. 1997). Furthermore, it is not the role of this Court to reevaluate the evidence or
substitute its own inferences for those drawn by the jury. State v. Winters, 137 S.W.3d 641,
655 (Tenn. Crim. App. 2003) (citations omitted).

       Especially aggravated robbery2 as charged in this case is defined as a robbery “(1)
[a]ccomplished with a deadly weapon; and (2) [w]here the victim suffers serious bodily
injury.” Tenn. Code Ann. § 39-13-402(a) (2010). Robbery, in turn, is defined as “the

       2
           This offense is a Class A felony. See Tenn. Code Ann. § 39-13-402(b).

                                                   -9-
intentional or knowing theft of property from the person of another by violence or putting the
person in fear.” Id. § 39-13-401(a) (2010). 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.” Id. § 39-14-103(a) (2010).

         A person is criminally responsible for crimes committed by another when, “[a]cting
with intent to promote or assist the commission of the offense, or to benefit in the proceeds
or results of the offense, the person solicits, directs, aids, or attempts to aid another person
to commit the offense.” Tenn. Code Ann. § 39-11-402(2) (2010) (emphasis added). Our
supreme court has explained that “[t]he justification for this theory of criminal liability is
that, in addition to the primary criminal actor, aiders and abettors should be held accountable
for the criminal harms they intentionally facilitated or helped set in motion.” State v.
Sherman, 266 S.W.3d 395, 408 (Tenn. 2008). As long as the State can prove that a defendant
knowingly, voluntarily and with common intent joined with the principal offender in the
commission of the crime, the State may seek to hold the defendant criminally liable as a
principal under the theory of criminal responsibility for the conduct of another. Id.; see also
State v. Hatcher, 310 S.W.3d 788, 811 (Tenn. 2010). “The requisite criminal intent may be
inferred from the defendant’s ‘presence, companionship, and conduct before and after the
offense.’” State v. Crenshaw, 64 S.W.3d 374, 384 (Tenn. Crim. App. 2001) (quoting State
v. McBee, 644 S.W.2d 425, 428-29 (Tenn. Crim. App. 1982)). While a person’s mere
presence during the commission of a crime is not sufficient to confer criminal liability, it is
not necessary that he or she take physical part in the crime. Sherman, 266 S.W.3d at 408.
Rather, encouragement of the principal actor will suffice. Id. A defendant convicted under
a theory of criminal responsibility for the conduct of another is considered a principal
offender to the same extent as if he had committed the offense himself. See Hatcher, 310
S.W.3d at 811.

        The Defendant first argues that the State failed to establish that the Defendant was
criminally responsible for the underlying offense. Specifically, he contends that the State
failed to prove that he had the requisite intent required to be held criminally responsible.

       The State established at trial that several individuals ran toward Tapplin’s vehicle after
Tapplin heard gunshots fired. Initially, an individual with a handgun opened the driver’s side
door and told Tapplin, “Give me everything you got.” According to Tapplin, the man hit
Tapplin with the handgun, and then another man approached from the front passenger side
and punched Tapplin in the face. While he was getting punched, the man with the handgun
searched Tapplin’s pockets and took Tapplin’s money and cell phone. According to Tapplin,

       Once he get [sic] my money, he keep on asking me do I go [sic] some more.
       I’m like, I ain’t go [sic] no more. He go in my pocket and I ain’t got nothing

                                              -10-
        else. Then he closed the door.              Then the big dude come with a big ole
        baseball bat, hit my window.

       At some point after this second individual shattered Tapplin’s window, Tapplin
observed a third man he identified as the Defendant approach him and shoot him. Moreover,
Tapplin testified, “I seen [sic] where they were going. Once [the Defendant] shot me I
leaned down. Then I looked back upon and I seen [sic] . . . the big guy with the bat walking
toward [the Defendant] walking back up and the short black guy walking up towards the
house.”

        This limited testimony, even considered in the light most favorable to the State,
merely establishes, at most, that all these individuals were present at the scene. Given that
mere presence is not enough to confer criminal liability, we are constrained to hold that the
State failed to present sufficient evidence that the Defendant knowingly, voluntarily and with
common intent joined with the principal offender in the commission of the robbery. See
Sherman, 266 S.W.3d at 408. Thus, we hold that the evidence was insufficient at trial to
convict the Defendant of especially aggravated robbery.3 Moreover, the same analysis

        3
           The dissent concludes that sufficient evidence does exist to sustain this conviction. The dissent
contends that the evidence shows concerted efforts among the Defendant, “Duke,” and “Bam.” The dissent
relies on two major sources for this conclusion. First, the dissent relies on some purported prior statements
of the victim which the victim unequivocally denies making in his own testimony at trial. Second, the dissent
relies on testimony from Plummer to connect these three individuals. Yet, a review of the record
demonstrates that Plummer expressly denied ever seeing the Defendant with either of these individuals on
the night of this incident. Also, contrary to the impression given by the dissent, Plummer expressly denies
that the Defendant returned to the house that evening with Duke or Bam. Moreover, a close reading of the
record confirms that no weapon ever was connected to Duke or Bam that evening. Additionally, the dissent
references and relies upon a prior statement given to police by Plummer as the piece of evidence establishing
that the Defendant ran back into the house with Duke and Bam. Yet, that statement appears nowhere in the
record. The only references to the statement in the record are in the form of questions to Plummer during
cross-examination by the Defendant’s counsel. See State v. Antonio Morrow, No. 02C01-9709-CR-00358,
1998 WL 351223, at *3 (Tenn. Crim. App. July 2, 1998) (citation omitted) (“[I]t is fundamental that
attorney’s questions, comments, and arguments are not evidence.”), perm. app. denied (Tenn. Feb. 1, 1999).
Furthermore, the dissent does not address the temporal issue raised by the defense in its sufficiency
argument, an issue that has resulted in conflicting rulings by prior panels of this Court. See State v. Antonio
Warfield, No. M2011-01235-CCA-R3-CD, 2012 WL 4841546, at *12 (Tenn. Crim. App. Oct. 5, 2012)
(noting that State v. Owens held that the “violence or fear,” not the bodily injury, must “precede or be
contemporaneous with the taking of property”) (quoting State v. Owens, 20 S.W.3d 634, 641 (Tenn. 2000)).
Contra State v. Michael Deshay Peoples, Jr., M2009-01783-CCA-R3-CD, 2010 WL 3528986, at *9 (Tenn.
Crim. App. Sept. 10, 2010), perm. app. denied (Tenn. Feb. 17, 2011) (“The serious bodily injury required
for a conviction of especially aggravated robbery must ‘precede or be concomitant to or contemporaneous
with the taking of property.’” (quoting Owens, 20 S.W.3d at 637)). Finally, one is led to question why these
individuals never were identified by the victim nor charged by the State in this case if the Defendant were
                                                                                                  (continued...)

                                                     -11-
applies to all of the lesser-included offenses pertaining to robbery. Thus, the evidence also
is insufficient as to these offenses.4

       As a result, we next consider whether the evidence was sufficient as to the lesser-
included offense of aggravated assault. Aggravated assault is defined as “intentionally,
knowingly, or recklessly caus[ing] bodily injury to another” which results in “serious bodily
injury” or where the defendant “[u]ses or displays a deadly weapon.” Tenn. Code Ann. §§
39-13-101, -102 (2010). A “deadly weapon” can be “anything that in the manner of its use
or intended use is capable of causing death or serious bodily injury.” Id. § 39-11-106(5)(B)
(2010).

         The evidence established at trial that the Defendant approached Tapplin’s vehicle with
a shotgun and shot through the passenger door, hitting Tapplin in the leg. Furthermore,
Tapplin’s gunshot wound to the left knee required surgery and the insertion of a metal rod,
resulting in a two-week hospital stay. Additionally, the evidence established that Tapplin
was unable to walk for six months. Viewing these facts with the strongest legitimate view
in favor of the State, see Harris, 839 S.W.2d at 75, the jury had sufficient evidence before
it to find that the Defendant caused injury to Tapplin while using a deadly weapon. Thus, the
evidence is sufficient to support a conviction of aggravated assault. Accordingly, we modify
the Defendant’s conviction from especially aggravated robbery to aggravated assault.

                                             CONCLUSION

       We conclude that the evidence is insufficient to support a conviction for especially
aggravated robbery or any of the lesser-included offenses pertaining to robbery. We,
however, hold that the evidence is sufficient to support a conviction for aggravated assault.
Accordingly, we modify the Defendant’s conviction to aggravated assault and remand the
case to the trial court for a new sentencing hearing.


                                                    ______________________________
                                                    JEFFREY S. BIVINS, JUDGE



        3
         (...continued)
so closely tied to Duke and Bam as inferred by the dissent.
        4
          As a result of our conclusion that the evidence is insufficient to convict the Defendant of especially
aggravated robbery or any of the offenses pertaining to robbery, we find it unnecessary to address the
problematic issue of the trial court’s failure to charge the offense of facilitation as a lesser-included offense
of these robbery offenses.

                                                      -12-
