        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT JACKSON                FILED
                      DECEMBER 1998 SESSION
                                                       August 6, 1999

                                                    Cecil Crowson, Jr.
                                                   Appellate Court Clerk
STATE OF TENNESSEE, )
                            ) C.C.A. No. 02C01-9708-CR-00319
     Appellee,              )
                            ) Shelby County 96-11229
V.                          )
                            ) Honorable Arthur T. Bennett, Judge
                            )
ANTONIO M. KENDRICK,        ) (Aggravated Rape)
                            )
     Appellant.             )




FOR THE APPELLANT:             FOR THE APPELLEE:

PAMELA J. DREWERY              JOHN KNOX WALKUP
416 E. Lafayette               Attorney General & Reporter
Jackson, TN 38303
(on appeal)                    MARVIN E. CLEMENTS, JR.
                               Assistant Attorney General
JOSEPH S. OZMENT               425 Fifth Avenue North
217 Exchange Avenue            Nashville, TN 37243
Memphis, TN 38105
(at trial)                     WILLIAM L. GIBBONS
                               District Attorney General

                               PERRY HAYES
                               Assistant District Attorney General
                               Criminal Justice Center, Third Floor
                               201 Poplar Avenue
                               Memphis, TN 38103




OPINION FILED: ___________________

AFFIRMED


JOHN EVERETT WILLIAMS,
Judge
                                  OPINION

       The defendant, Antonio M. Kendrick, was convicted of aggravated rape

following a jury trial in the Shelby County Criminal Court. He was sentenced as

a Range I offender to twenty years in the Tennessee Department of Correction,

to be served consecutively to a sentence for a prior unrelated rape conviction.

The defendant now appeals, challenging the sufficiency of the evidence, certain

jury instructions, the composition of his jury, and his sentence. We AFFIRM the

judgment of the trial court.



                                BACKGROUND

       On May 15, 1995, the defendant approached the victim, Marcelita Hester,

and, brandishing an object that she thought to be a wrench, forced her to get into

his car. The defendant drove with Hester in the car for several minutes. While

he drove, the defendant asked Hester whether she remembered him. He told

her to “take a good look” and said that she had cursed him at a grocery store

earlier. Hester said that she did carefully observe the defendant but

remembered neither him nor or any such incident.



       The defendant continued to drive for some time. Hester testified that she

focused on his voice and features during this time so that she could identify him

later. She also observed numerous details of the defendant’s car. The

defendant stopped and demanded that she perform oral sex, threatening to

“bash [her] head” if she did not. Hester complied. While she did, the defendant

resumed driving for another five to ten minutes. He then stopped again, forcibly

removed Hester’s clothes, and forcibly engaged in vaginal sex with her. He then

drove Hester to her aunt’s home and released her. He backed down the street,

preventing Hester from observing his license plate.




                                       -2-
       Hester immediately called the police and reported the rape. She

subsequently identified a person from a photo lineup as her assailant. After

investigation, however, police concluded that this identified person could not

have committed the crime.



       Three or four days after the rape, Hester saw the defendant driving near

her home. Recognizing both the car and the defendant, Hester followed him and

obtained his license plate number. She then supplied this information to the

police, and the defendant was arrested and indicted for aggravated rape.



                              JURY INSTRUCTIONS

       The defendant alleges two errors in the trial court’s instructions to the jury.

First, he argues that the trial court erred in failing to charge criminal attempt as a

lesser included offense. A recent Supreme Court decision compels our

concluding that this omission, even if in error, was harmless.



       Clearly, criminal attempt is a lesser included offense and must be charged

when supported by the evidence. See State v. Trusty, 919 S.W.2d 305, 310

(Tenn. 1996). However, “[a] trial judge . . . need only instruct on lesser offenses

in circumstances in which evidence in the record would support a conviction for

the lesser offenses.” Id. at 310, 311 & n.5. The defense theory at trial was

mistaken identity and alibi, not that the victim was not raped. The defendant did

not suggest that the offense was incomplete. The state therefore argues that the

attempt need not have been charged because evidence did not support attempt.



       In theory, the jury might have credited evidence that would support an

attempted rape conviction but declined to credit the victim’s testimony that

penetration occurred, even in the absence of any suggestion that penetration did

not occur. In addition, the attempt statute clearly states, “It is no defense to

prosecution for criminal attempt that the offense attempted was actually

                                          -3-
committed.” Tenn. Code Ann. § 39-12-101. Nevertheless, we need not decide

whether an attempt instruction was required. Even assuming that the trial court

erred, any error was clearly harmless.



       In State v. Williams, 977 S.W.2d 101 (Tenn. 1998), the Tennessee

Supreme Court held that a trial court’s failure to instruct the jury as to a lesser

offense was harmless error when the jury was instructed as to another lesser

offense but convicted the defendant of the greatest charged offense. In the

present case, the trial court instructed the jury on aggravated rape, rape, sexual

battery, aggravated assault, and assault. As in Williams, the jury in the instant

case convicted the defendant of the greatest charged offense. Thus, following

Williams, we find that omitting a charge of attempt as an additional lesser offense

was harmless. This issue is without merit.



       The defendant also argues that the “reasonable doubt” charge was

deficient in that it did not include the phrase “moral certainty.” This Court has

repeatedly reviewed reasonable doubt instructions similar to the instruction in the

instant case and concluded that the lack of “moral certainty” language does not

render the instruction constitutionally deficient. See, e.g., State v. Jose Holmes,

No. 02C01-9505-CR-00154 (Tenn. Crim. App. filed Dec. 10, 1997, at Jackson).



                           SUFFICIENCY OF EVIDENCE

       The defendant asserts that the victim’s identification of him was infirm and

that, absent this identification, the evidence is insufficient to support the jury’s

verdict. The defendant points out that Hester mistakenly identified another

person from a photo lineup as her assailant and mistakenly identified the

defendant’s car as a Buick Skylark rather than a Buick LeSabre. Nevertheless,

Hester identified the defendant in court and related numerous details of the

interior of the defendant’s vehicle. The jury was entitled to credit this evidence.




                                          -4-
Hester also subsequently recognized the defendant and the vehicle used in her

assault as he drove down her street. This issue is without merit.




                               JURY COMPOSITION

       The defendant next argues that the service of a deputy jailer, Gloria

Nathaniel, as a juror in his case compromised the verdict. The defense

questioned Nathaniel regarding her prior knowledge of the defendant from the

jail but declined to challenge her, although the defense had not exercised all of

its challenges. Here, the defendant argues that Nathaniel was not fully honest

with the defense during the voir dire when she “denied knowing the appellant.”

He also suggests, although admitting “there is no direct proof,” that Nathaniel

inappropriately influenced other jurors.



       At a hearing on the defense’s motion for a new trial, Nathaniel testified

that she did not know the defendant but that she knew of him; specifically, she

said she knew that he had been housed at the jail. She stated that she did not

know what the defendant was accused of prior to trial, that she had never looked

at the defendant’s record or “rap sheet,” that none of her co-workers had ever

discussed the defendant’s record with her, that her vague knowledge of the

defendant did not affect her vote on the verdict, and that she did not influence

any of the other jurors with such information. The trial judge specifically found no

indication of any bias or prejudice. The trail court did not abuse its discretion in

denying the motion for a new trial. This issue is without merit.



                                  SENTENCING

       Finally, the defendant argues that the trial court erroneously applied

certain enhancement factors and that his sentence is, therefore, excessive.

Appellate review of a challenge to the length or manner of service of a sentence

                                           -5-
is de novo on the record, “with a presumption that the determinations made by

the court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-

401(d). 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).

The appellant carries the burden of showing that his sentence is improper. See

Tenn. Code Ann. § 40-35-401(d) sentencing comm’n cmts; State v. Jernigan,

929 S.W.2d 391, 395 (Tenn. Crim. App. 1996).



       At the time of the instant offense, the defendant had been recently

convicted of another unrelated rape and was on bail pending appeal of that

conviction to this Court. See State v. Antonio Kendrick, No. 02C01-9604-CR-

00121 (Tenn. Crim. App. filed Nov. 5, 1997, at Jackson). Accordingly, the trial

court found applicable enhancement factors (1) and (13)--that the “defendant

has a previous history of criminal convictions or criminal behavior in addition to

those necessary to establish the appropriate range”; and that the “felony was

committed while on [appeal bond] from a prior felony conviction.” Tenn. Code

Ann. § 40-35-114(1), (13).



       The defendant argues that because his appeal had not been resolved at

the time of the sentencing hearing in the present case, his conviction was not

“final” and could support neither enhancement. We disagree. The defendant

was on bail from a prior felony conviction at the time of his present felony

offense; potential reversal of his prior conviction does not alter this fact. Thus,

enhancement factor (13) would apply even if his prior rape conviction had been

ultimately overturned. We also find that the defendant’s prior trial court

conviction, although still subject to appeal, was sufficient to establish the

applicability of enhancement factor (1). Moreover, although the defendant did

not include his presentence report on this appeal, the record indicates that his




                                         -6-
criminal history may comprise additional behavior that would further support

application of this enhancement. This issue is without merit.




                                 CONCLUSION

      The judgment of the trial court is AFFIRMED.




                                             _____________________________
                                             JOHN EVERETT WILLIAMS, Judge




CONCUR:




(See dissenting opinion)
GARY R. WADE, Presiding Judge




_____________________________
THOMAS T. WOODALL, Judge




                                       -7-
