        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs April 10, 2012

                   LARRY PAYNE v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Shelby County
                     No. 04-01217     J. Robert Carter, Jr., Judge


                No. W2011-01080-CCA-R3-PC - Filed February 8, 2013


The petitioner, Larry Payne, was convicted by a jury of four counts of aggravated robbery,
Class B felonies, against two victims. On direct appeal, the Court of Criminal Appeals
merged the four convictions into two, one for each victim, and otherwise affirmed the
judgments. The Tennessee Supreme Court declined discretionary review. The petitioner
then brought this timely post-conviction petition, asserting various claims of ineffective
assistance of counsel. The petitioner’s sole issue on appeal is whether he was denied the
effective assistance of counsel due to his trial counsel’s failure to request a jury instruction
on the lesser included offense of theft. After a thorough review of the record, we conclude
that the petitioner has not established any prejudice resulting from his counsel’s failure to
request a jury charge on the lesser included offense of theft. The petitioner’s failure to
establish prejudice is fatal to his ineffective assistance claim. The judgment of the court
below is affirmed.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which C AMILLE R.
M CM ULLEN and J EFFREY S. B IVINS, JJ., joined.

R. Todd Mosley, Memphis, Tennessee, at trial and on appeal; and Eran E. Julian, Memphis,
Tennessee, at trial, for the appellant, Larry Payne.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Amy P. Weirich, District Attorney General; David Zak and Betsy Weintraub,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                          OPINION
       The petitioner was convicted for participating in a robbery that took place at a
Memphis bakery in October of 2003. Emma Brown, an employee, was at work around
midnight when a man named David Hicks came to the locked bakery door. Because she was
familiar with the man and was acquainted with his aunt, she unlocked the door, at which
point another man, who had a gun and a bandana tied around his face, forced his way into
the store. The masked man and Mr. Hicks proceeded to rob Ms. Brown, then threatened to
shoot her unless her friend Marvin Qualls gave them the keys to his Dodge Durango. After
taking the keys from Mr. Qualls and taking money from Mr. Qualls and from Ms. Brown, the
men left. Ms. Brown also testified to having seen a third man briefly enter and leave the
store during the robbery. Ms. Brown was able to tell police the name of Mr. Hicks’ aunt, and
Mr. Hicks’ aunt in turn gave the police information about Mr. Hicks, as well as the petitioner
and another man, who were Mr. Hicks’ half-brothers. Acting on an anonymous tip, police
located Mr. Qualls’ Dodge Durango; the petitioner was driving the car but denied any
involvement with the robberies.

        Ms. Brown was able to identify the petitioner from a photographic array about a week
after the robberies. Although she testified that a bandana had obscured his face below the
eyes, she stated she was able to make a positive identification based on his large head and
the visible portion of his face. Ms. Brown also identified the petitioner from among a group
of approximately five inmates at a preliminary hearing and then identified him at trial, when
the petitioner, who had been excluded from the courtroom for unruly behavior, was brought
into her line of sight by detention personnel. Mr. Qualls was not able to identify the
petitioner from a photographic array. However, Mr. Qualls did identify the petitioner when
he saw him in person at the preliminary hearing and at trial under the circumstances
described above. Mr. Qualls denied being present for Ms. Brown’s identification at the
preliminary hearing but acknowledged he had discussed the events of the robbery with her.

       At trial, the petitioner testified that about two weeks prior to the robberies, Ms.
Brown, to whom he had sold crack cocaine in the past, asked him to participate in a robbery
of her employer’s store. According to the petitioner, he had told Ms. Brown that he would
not do it unless she paid him money up front. Because she did not have the money, he
refused her request. The petitioner denied participating in the robberies. He stated that his
half-brother Mr. Hicks was at their aunt’s house on the day of the robberies and left with
some men. According to the petitioner, a man named Nick returned with Mr. Hicks and the
Dodge Durango around 11:30 p.m., and Nick then traded the Dodge Durango to the
petitioner to use for a few days in exchange for crack cocaine. The petitioner testified that
he did not care at the time if the vehicle was stolen because he intended to return it to Nick.

      Prior to closing arguments, the trial court discussed the jury charge with the parties.
One of the petitioner’s attorneys brought up lesser include offenses: “Can I inquire the other

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lesser includeds you anticipate – . . . .” The trial court stated it would charge simple robbery.
Trial counsel did not object or ask for any other lesser included offense. During
deliberations, the jury sent a written question to the trial court: “[H]ung on witness’ ID of
armed robber – is there a lesser charge – maybe receiving stolen goods – possession of stolen
property?” The trial court instructed the jury to resume deliberations under the charge as it
had been given, noting that the jury should consider the greater charge first, and if it had
reasonable doubt as to the petitioner’s guilt, should acquit on that charge and then consider
the lesser included offense of robbery. The jury resumed deliberations and convicted the
petitioner of four counts of aggravated robbery. The petitioner was sentenced to eighteen
years’ imprisonment for each count, with the two counts for each victim running concurrently
to each other but consecutively to the counts for the other victim, for an effective thirty-six
years. On direct appeal, the petitioner asserted that the evidence was insufficient to support
his convictions, that the court erred by requiring law enforcement officers to sit next to him,
and that his sentences were excessive. The convictions for each victim were merged, and the
convictions and sentences were otherwise affirmed. The Tennessee Supreme Court declined
discretionary review.

        The petitioner then brought a timely post-conviction petition asserting various ways
in which he believed his counsel had been constitutionally ineffective. The post-conviction
court appointed counsel and counsel amended the petition twice. The petitioner’s original
post-conviction attorney then moved to withdraw based on another amendment to the petition,
which the attorney believed had been filed by the petitioner and on which post-conviction
counsel’s signature had been forged. The post-conviction court granted the motion and
current counsel was appointed. The post-conviction court held evidentiary hearings 1 at which
the petitioner and his trial counsel testified. Trial counsel testified that there was no strategic
reason to omit theft of property as a lesser included offense and that in hindsight, she would
have requested theft to be charged. The post-conviction court concluded that the petitioner’s
attorney had not performed deficiently and that there was no prejudice to the petitioner.

                                               Analysis

       Tennessee’s Post-Conviction Procedure Act allows a petitioner to challenge a sentence
which is void or voidable because the petitioner’s constitutional rights were violated. T.C.A.
§ 40-30-103. In bringing a post-conviction petition, the petitioner bears the burden of proving
by clear and convincing evidence the allegations of fact upon which relief is founded. Id. at
§ 40-30-110(f). While a post-conviction court’s findings of fact are conclusive on appeal


        1
         The order denying post-conviction relief states that the post-conviction court heard proof on the
matter on three different dates, January 6, 2011; March 11, 2011; and April 1, 2011. Only two transcripts,
those of the January and April hearings, are included in the record.

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unless the evidence preponderates otherwise, legal conclusions and mixed questions of law
and fact, such as claims of ineffective assistance of counsel, are reviewed de novo with no
presumption of correctness. Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006).

        A defendant has the right to be represented by counsel under both the Sixth
Amendment to the United States Constitution and article I, section 9 of the Tennessee
Constitution. The right to counsel is the right to “reasonably effective” legal assistance,
Strickland v. Washington, 466 U.S. 668, 687 (1984), and counsel’s performance must fall
“within the range of competence demanded of attorneys in criminal cases,” Baxter v. Rose,
523 S.W.2d 930, 936 (Tenn. 1975). To obtain relief based on a claim of ineffective assistance
of counsel, the petitioner must show both that counsel’s performance was deficient and that
the petitioner was prejudiced by the deficiency. Strickland, 466 U.S. at 687. Deficiency
requires a showing that counsel’s errors were so serious that counsel was not functioning as
the counsel guaranteed by the Constitution. Id. Review of counsel’s performance should be
“highly deferential and should indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Felts v. State, 354 S.W.3d 266,
277 (Tenn. 2011) (quoting State v. Burns, 6 S.W.3d 453, 462 (Tenn. 1999)). The second
prong, prejudice, requires a defendant to “show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694. The petitioner’s failure to establish either deficiency or prejudice
is fatal to his or her claim of ineffective assistance of counsel. See Strickland, 466 U.S. at
687; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Accordingly, if we determine that
either prong is not satisfied, we need not consider the other prong. Goad, 938 S.W.2d at 370.

        Petitioner’s trial counsel did not request the trial court to instruct the jury to consider
theft as a lesser included offense of aggravated robbery, and petitioner asserts that trial
counsel’s failure to do so amounted to deficiency. Tennessee law provides that a person
commits theft “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.” T.C.A. § 39-14-
103. Theft is elevated to robbery if it is accomplished “by violence or putting the person in
fear.” T.C.A. § 39-13-401(a). Robbery is “aggravated” if it is “[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.” T.C.A. § 39-13-402(a)(1). Theft is a lesser included offense of
robbery, which is in turn a lesser included offense of aggravated robbery. State v. Hayes, 7
S.W.3d 52, 56 (Tenn. Crim. App. 1999).

       To satisfy the elements of theft, not only must the offender obtain or exercise control
over the property, but the offender must do so knowingly. Conduct is knowing when “the
person is aware of the nature of the conduct or that the circumstances exist.” T.C.A. §

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39-11-302(b). Furthermore, there is an “inference of guilty knowledge permitted by the
possession of recently stolen property.” State v. James, 315 S.W.3d 440, 450 (Tenn. 2010).
This permissive inference is not a mandatory presumption. See id. at 449-51 (concluding that
“inference of knowledge that the property was stolen from the possession of recently stolen
property is particularly suited to our current statute”). “An unsatisfactorily explained
possession of very recently stolen property may, in the light of surrounding circumstances,
support a conviction of larceny, as well as supply the element of guilty knowledge for the
offenses of receiving stolen property or concealing stolen property.” State v. Hatchett, 560
S.W.2d 627, 629 (Tenn. 1978).

        In urging deficiency, the petitioner notes that he testified that he came into possession
of the stolen vehicle because a man named Nick had pawned it to him in exchange for
cocaine. This proof, if accepted by a jury, might have been legally sufficient to support the
elements of the offense of theft. While the record reflects that petitioner’s trial counsel
inquired concerning lesser included offenses generally, trial counsel never asked for the lesser
included offense of theft to be charged, despite the trial court’s statement that it only intended
to charge simple robbery. Where the defendant’s testimony centered around the idea that he
had simply received stolen goods rather than committed aggravated robbery, an argument can
be made that the petitioner’s trial counsel’s conduct in failing to request a theft instruction fell
below the range of competence demanded of attorneys in criminal cases. On the other hand,
the failure to request such an instruction might also reflect a strategic choice by counsel not
to subject the petitioner to seemingly-certain punishment for criminal activity to which he had
all but confessed on the stand.

        However, we need not definitively resolve the issue of counsel’s alleged deficiency,
because the petitioner has not established prejudice based on his trial counsel’s failure to
request a theft instruction on the facts of this case. In reaching this conclusion, we are guided
by the logic of the ongoing debate in this court over a related issue: the circumstances under
which a trial court’s failure to charge a lesser-included offense may constitute reversible error
in a criminal case. On this subject, there presently exist two schools of thought. Compare
State v. Nathaniel Shelbourne, No. W2011-02372-CCA-R3-CD (Tenn. Crim. App., Dec. 26,
2012) (majority opinion) with id. (Woodall, J., concurring).

        The strict view is that the failure to charge a lesser-included offense can never
constitute reversible error in a criminal case if the defendant has been found guilty of the
greater offense. According to the strict view, juries are presumed to follow the instructions
of the trial court. See State v. Shaw, 37 S.W.3d 900, 904 (Tenn. 2001). In accordance with
the supreme court’s holding in State v. Davis, 266 S.W.3d 896, 910 (Tenn. 2008), trial courts
are mandated to “instruct the jury to consider the offenses in order from greatest to least
within each count” and further instruct them that they “shall not proceed to consider any

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lesser-included offense until [the jury] has made first a unanimous determination that the
defendant is not guilty of the immediately-preceding greater offense.” Id. at 910. Under this
view, even if the jury had been charged with the lesser-included offense, it was prohibited
from considering such until after it acquitted the defendant of the greater charge. A
defendant’s conviction of the greater charge is thus irrefutable proof that a trial court’s failure
to instruct on a lesser-included offense was harmless error. By the same reasoning, in post-
conviction, a petitioner can never show that his trial counsel’s failure to request a lesser
included offense was prejudicial; the jury’s conviction of the greater charge prohibited any
consideration of a lesser charge, and consequently as a matter of law there was no possibility
whatsoever¯much less a reasonable probability¯that but for counsel’s failure to request the
lesser-included offense the result of the proceeding would have been different.

        The more permissive view does not completely rule out the possibility that a trial
court’s failure to charge a lesser included offense might constitute reversible error, but instead
examines the facts and circumstances of each case. However, this case-by-case approach also
acknowledges that Davis requires a jury to consider lesser-included offenses from greatest to
least. Where some, but not all, lesser-included offenses have been charged by the trial court
in a given case, and the defendant has nonetheless been convicted of the greater offense, even
under the more permissive approach the trial court’s failure to instruct the jury on a specific
lesser-included offense is deemed harmless beyond a reasonable doubt. The jury’s
opportunity to consider an intermediate lesser-included offense, and its rejection of the same,
stands as conclusive proof that it would not have convicted the defendant of offenses further
down the chain of culpability. Under this view, a petitioner in post-conviction could not
establish prejudice stemming from his counsel’s failure to request a lesser-included offense
so long as the jury had considered and rejected a greater lesser-included offense.

        Regardless of which of these two views ultimately prevails, we conclude that the
defendant in this case has not shown prejudice stemming from his trial counsel’s alleged
deficiency. The petitioner’s jury was instructed on the lesser-included offenses of robbery,
yet nonetheless convicted the petitioner of the greater offenses of aggravated robbery.
Because the jury declined to convict the petitioner of mere robbery, it would not have been
permissible for the petitioner’s jury to have pondered the issue of whether the petitioner was
guilty of theft, even had the petitioner’s counsel successfully requested that the jury receive
theft instructions.

        The defendant has not shown that, but for his counsel’s failure to request an instruction
on the lesser-included offense of theft, the result of his proceeding would have been different.
The petitioner’s claim that he received ineffective assistance of counsel is denied.

                                        CONCLUSION

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For the foregoing reasons, the judgment of the post-conviction court is affirmed.




                                           _________________________________
                                           JOHN EVERETT WILLIAMS, JUDGE




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