        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON                 FILED
                             MAY SESSION, 1997             August 13, 1997

                                                          Cecil Crowson, Jr.
                                                          Appellate C ourt Clerk

STATE OF TENNESSEE,            )    C.C.A. NO. 02C01-9607-CC-00215
                               )
      Appellee,                )
                               )    MADISON COUNTY
                               )
V.                             )
                               )    HON. WHIT LAFON, JUDGE
YTOCKIE FULLER,                )
                               )    (ESPECIALLY AGGRAVATED
      Appellant.               )    ROBBERY)




FOR THE APPELLANT:                  FOR THE APPELLEE:

GEORGE MORTON GOOGE                 JOHN KNOX WALKUP
District Public Defender            Attorney General & Reporter

JEFF MUELLER                        WILLIAM DAVID BRIDGERS
Assistant Public Defender           Assistant Attorney General
227 W est Baltimore Street          425 Fifth Avenue North
Jackson, TN 38301-6137              2nd Floor, Cordell Hull Building
                                    Nashville, TN 37243

                                    JAMES G. WOODALL
                                    District Attorney General

                                    JAMES W. THOMPSON
                                    Assistant District Attorney General
                                    Lowell Thomas State Office Building
                                    225 Martin Luther King Drive
                                    P.O. Box 2825
                                    Jackson, TN 38302



OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                 OPINION


       The Defendant, Ytockie Fuller, appeals as of right pursuant to Rule 3 of the

Tennessee Rules of Appellate Procedure. Following a jury trial in the Circuit

Court of Madison County, Defendant was found guilty of especially aggravated

robbery, conspiracy to commit especially aggravated robbery and possession of

a deadly weapon with the intent to employ in the commission of an especially

aggravated robbery. Subsequently, the trial judge merged the deadly weapon

conviction with the especially aggravated robbery conviction and dismissed the

conspiracy charge. The Defendant was sentenced to serve fifteen (15) years as

a Range I Standard Offender. Defendant presents four (4) issues to this court:

(1) the evidence was insufficient as a matter of law to support the jury’s verdict;

(2) the trial court abused its discretion in interrupting and limiting cross-

examination of the victim regarding his past drug use; (3) the trial court

committed plain error in allowing his secretary to read the last portion of the

instructions to the jury; and (4) the trial court committed plain error by omitting the

words “prejudice or” from the verbal jury instructions. W e affirm the judgment of

the trial court.



                      I. SUFFICIENCY OF THE EVIDENCE



       W hen an accused challenges the sufficiency of the convicting evidence,

the standard is whether, after reviewing 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.

                                          -2-
307, 319 (1979). On appeal, the State is entitled to the strongest legitimate view

of the evidence and all inferences therefrom. State v. Cabbage, 571 S.W .2d 832,

835 (Tenn. 1978).     Because a verdict of guilt removes the presumption of

innocence and replaces it with a presumption of guilt, the accused has the

burden in this court of illustrating why the evidence is insufficient to support the

verdict returned by the trier of fact. State v. Tuggle, 639 S.W .2d 913, 914 (Tenn.

1982); State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).



      Questions concerning the credibility of the witnesses, the weight and value

to be given the evidence, as well as all factual issues raised by the evidence, are

resolved by the trier of fact, not this court. State v. Pappas, 754 S.W .2d 620, 623

(Tenn. Crim. App.), perm. to appeal denied, id. (Tenn. 1987). Nor may this court

reweigh or reevaluate the evidence. Cabbage, 571 S.W .2d at 835. A jury verdict

approved by the trial judge accredits the State’s witnesses and resolves all

conflicts in favor of the State. Grace, 493 S.W .2d at 476.



      In the early morning hours of August 19, 1995, Harden Randy Hicks, the

victim, took a coworker home to Parkview Court Apartments after work. When

he pulled into the parking lot sometime shortly after midnight, Hicks saw the

Defendant. Hicks was able to identify the Defendant as he had known him all of

Defendant’s life and worked with him at a landscaping service. After Hicks

dropped off his coworker, Defendant approached the victim’s truck and wanted

to talk, but Hicks could not understand what Defendant was saying. The next

thing Hicks observed were two black males approach him with one of them

holding a gun. This individual pointed the gun to Hicks’ forehead and stated, “We

want your money.”       When Hicks asked Defendant what was happening,

                                        -3-
Defendant replied, “You heard him. We want your d--- money.” Hicks reached

in his pocket and gave them twenty dollars ($20.00).



      Defendant took possession of the gun, cocked it and put it to Hicks’

forehead saying, “We want all your money.” When Hicks reached into his pocket

to give Defendant his wallet, Defendant shot him. Momentarily blinded, Hicks

thought he had been shot in the face. He heard only one shot and then pitched

his wallet to the ground. All three of the men reached for it, and then they ran

behind the apartment building. When Hicks started to get out of his truck to get

help, he saw blood running down his arm. He was afraid the Defendant would

return to kill him because there was no money in his wallet, so he got back in his

truck and drove to his home two (2) miles away. After he arrived there, he asked

his wife to call 911. Hicks testified that he was in fear for his life during the

incident and that he began to experience pain from his wounds by the time he

arrived at the hospital.



      During cross-examination, Hicks admitted to using drugs in the past but

denied that he currently used drugs, denied that he purchased drugs from the

Defendant at any time, and denied that he owed Defendant any money.



      Linda Jeanette Hicks, the victim’s wife, testified that at approximately 12:25

a.m. on August 19, 1995, she heard someone beating on her door. She heard

her husband’s voice saying, “Linda, Linda, open the door. I’ve been shot.” W hen

she opened the door, Hicks “just fell in.” After she raised his bloody t-shirt to find

out where he had been shot, she called 911.




                                         -4-
      Robert Jerry Stephenson, an emergency medicine physician, testified that

he was working on August 19, 1995, and treated Hicks. There was a “through

and through” gunshot wound to Hicks’ left bicep and an entrance wound to the

left side of his chest. While Hicks’ vital signs were stable, Doctor Stephenson

could feel a bullet underneath the skin near the spine. According to the doctor,

these wounds were consistent with a patient feeling extreme physical pain. Hicks

was taken to surgery following Stephenson’s initial treatment.



      George Pruitt and Jeff Austin, officers of the Jackson Police Department,

investigated the shooting. They testified that they were both on duty during the

early morning hours of August 19, 1995. Officer Pruitt responded to the victim’s

residence and followed him to the hospital where he took photographs of Hicks’

wounds. Officer Austin investigated in the Parkview Courts parking area where

he found a spent casing for a .380 caliber gun within two (2) inches of a sm all

pool of blood. He found these in a handicapped parking area just west of

Buildings 233-35.



      Defendant testified that he was in Parkview Courts selling drugs on the

evening of August 18, 1995. He first saw Hicks when he came to Parkview off

of an adjoining street. While standing at the mailbox with a friend nam ed Lucky,

Hicks asked to meet with him.      He got into the truck with Hicks, and they

discussed the twenty dollars ($20.00) Hicks owed Defendant for drugs. Hicks

gave him the money and asked if Defendant had anything to sell him. When he

said no, Hicks left and Defendant did not see him anym ore.




                                       -5-
         In viewing the evidence in the light most favorable to the State, there is

more than sufficient evidence to support the conviction of Defendant for

especially aggravated robbery, which is robbery accomplished with a deadly

weapon where the victim suffers serious bodily injury. Tenn. Code Ann. § 39-13-

403. Robbery is the intentional or knowing theft of property from the person of

another by violence or putting the person in fear. Tenn. Code Ann. § 39-13-401.



         Evidence at trial showed that the victim was forced at gunpoint to give

Defendant and two other men twenty dollars ($20.00). He was shot by the

Defendant after he demanded “all his d--- money.” The victim confirmed that he

was experiencing pain by the time he arrived at the hospital. Dr. Stephenson

stated that Hicks’ injury was of the type to cause extreme physical pain, which

constitutes serious bodily injury under Tennessee Code Annotated § 39-11-

106(33). “Serious bodily injury” is also defined by this statute as a bodily injury

with “a substantial risk of death.” The proof shows that the bullet entered and

passed through the victim’s arm prior to entering his chest area and stopped very

near the spine. Upon review of this record, there was more than sufficient

evidence to permit a rational trier of fact to find the elements of especially

aggravated burglary beyond a reasonable doubt. The Defendant has not met his

burden in establishing the insufficiency of the evidence, and this issue has no

merit.



     II. LIMITATION AND INTERRUPTION OF CROSS-EXAMINATION



         The trial court permitted Defendant’s counsel to cross-examine the victim

regarding “drug use” to the extent that the victim admitted he had used drugs in

                                         -6-
the past. The victim also testified that he did not currently use drugs, and he

denied buying drugs from the Defendant.           In this appeal, the Defendant

complains that the trial court would not allow Defendant to ask the victim if he had

ever purchased drugs from anyone else in Parkview Court Apartments. The

control of cross-examination of witnesses rests within the sound discretion of the

trial court.   State v. Thomas, 755 S.W.2d 838, 843 (Tenn. Crim. App. 1988).

W hether evidence is admissible or not is in the discretion of the trial judge and

will not be disturbed unless there is clear evidence of abuse of that discretion.

State v. W est, 737 S.W.2d 790, 793-94 (Tenn. Crim. App. 1987).



       Defendant was allowed to elicit on cross-examination that the victim had

previously used drugs and whether or not he had ever purchased drugs from the

Defendant. W e do not see how it is relevant in the proceedings of this particular

trial whether or not the victim had purchased drugs from other individuals at the

Parkview Court Apartments, and therefore hold that the trial court was correct in

not permitting this line of inquiry.



       Defendant further complains that the trial court interrupted cross-

examination of the victim on other occasions and committed error by comments

the trial court made during the cross-examination of the victim.



       W e note from the record that during one of the of incidences complained

of by the Defendant, the trial court gave the Defendant the opportunity to make

an offer of proof. There is nothing in the record to reflect that Defendant made

any offer of proof of what line of inquiry should have been allowed that was not

permitted. At this particular point in the cross-examination, Defendant’s counsel

                                        -7-
was attempting to question the victim about the number of people that were

located outside at the Parkview Court Apartm ents on the night of the incident.

W ithout an offer of proof being made by the Defendant, this particular matter is

waived. T.R.A.P. 36(a).



       Defendant also complains about the trial court interrupting counsel by

stating that counsel had asked multiple questions at once, and should ask one

question at a time. Our review of the record reflects that the trial judge was

correct in this ruling.



       In addition, Defendant complains that the trial court interrupted cross-

exam ination of the victim when he had been called back as a rebuttal witness.

The trial court made comments inquiring of counsel whether or not the questions

had already been asked, and when given an explanation by defense counsel, the

trial court allowed the Defendant’s cross-examination to proceed. There was no

error in this action by the trial court.



       Finally, Defendant complains about the following comments of the trial

court during cross-examination of Mr. Hicks:


       DEFENSE COUNSEL:            It was probably
                                   one-thirty
                                   before you got
                                   to the hospital
                                   you say?

       VICTIM:                     Yes.

       DEFENSE COUNSEL:            Sir, if y o u’ve
                                   k n o w n
                                   [Defendant]
                                   nearly all of his

                                           -8-
                                 life, why would
                                 the Defendant
                                 rob you, do you
                                 know?

      VICTIM:                    That’s what I
                                 n eve r c o u ld
                                 figure out.

      DEFENSE COUNSEL:           And, sir, you’ve
                                 used drugs in
                                 the past?

      VICTIM:                    Yes.

      THE COURT:                 Ask him if he
                                 was using drugs
                                 then if you want
                                 to.

      DEFENSE COUNSEL:           I’ll leave it there,
                                 Your Honor.

      THE COURT:                 All right.       Ask
                                 him if he’s      had
                                 a     drink        of
                                 w h i s k        e y
                                 s o m e t im e     or
                                 something        like
                                 that.

      DEFENSE COUNSEL:           Nothing further,
                                 Your Honor.



      It is correct that a trial court must be careful not to express any thought or

make any statement that might cause a jury to infer that the judge is in favor of,

or against the Defendant in a criminal case, State v. Cazes, 875 S.W .2d 253, 260

(Tenn. 1994), cert. denied, 115 S.C. 743 (1995). Therefore, we view the above

statements by the trial court as improper.



      The comments made by the trial court could be taken by the jury as an

indication by the trial judge to not take seriously the cross-examination by

                                         -9-
defense counsel. Questions by the trial court should be limited to clarifying points

which may seem to be obscure and in supplying omissions which the interest of

justice dem and. See State v. Jenkins, 733 S.W.2d 528, 532 (Tenn. Crim. App.

1987). This would necessarily include situations, such as in the case sub judice,

where the trial court suggests to counsel questions that he or she may want to

ask.



        However, any error was harmless beyond a reasonable doubt. T.R.Crim.P.

52.



       III. TRIAL JUDGE’S FAILURE TO READ ALL JURY INSTRUCTIONS



        Defendant argues the trial court erred by allowing his secretary to read the

final portion of instructions to the jury. From the record, it is evident that the trial

judge asked his secretary to read the remainder of the charge due to his sore

throat. The trial court specifically stated “Ladies and gentlemen, due to my

throat, I’m going to let her read the rest of this. It’d be just as if I read it.”



        Defendant did not object to this at trial, nor did he raise this issue in his

motion for a new trial. He now asserts that appellate review is proper because

the trial court’s actions were plain error under Rule 52(b), Tennessee Rules of

Criminal Procedure. Before an error may be recognized pursuant to Rule 52(b),

the error must be “plain” and affect a “substantial right” of the accused. State v.

Adkisson, 899 S.W .2d 626, 639 (Tenn. Crim. App. 1994).                A plain error is

especially egregious in that it strikes at the fairness, integrity or public reputation

of judicial proceedings.      Id.   A substantial right is a right of fundamental

                                          -10-
proportions in the indictment process, in the proof of each element of the offense,

and constitutional in nature. Id. To determine whether an error constitutes plain

error, the following factors apply:

         a) the record must clearly establish what occurred in the trial court;
         b) a clear and unequivocal rule of law must have been breached;
         c) a substantial right of the accused must have been adversely
         affected;
         d) the accused did not waive the issue for tactical reasons; and
         e) consideration of the error is necessary to do substantial justice.

Id. at 641-42.


         In consideration of the above factors, the trial court’s failure to read the

entire charge to the jury does not rise to the level of plain error. In light of the

evidence against the Defendant, the secretary’s reading a portion of the jury

instructions did not affect the fairness or the integrity of the trial, particularly since

the trial court instructed the jury that her reading would be just as if he read the

charge. The presumption is that a jury follows the instructions of the trial court.

State v. Vanzant, 659 S.W.2d 816, 819 (Tenn. Crim. App. 1983); Craig v. State,

524 S.W.2d 504, 508 (Tenn. Crim. App. 1974). While this court cannot condone

the actions of the trial court, except under extreme circumstances, there is no

evidence that the jury did not follow the judge’s instructions. Any error was

harmless beyond a reasonable doubt. T.R.Crim.P. 52(a). This issue is without

merit.



              IV. OMISSION OF COMPLETE JURY INSTRUCTIONS



         Defendant argues that the omission of the words “prejudice or” from the

trial court’s verbal instructions to the jury constituted plain error. Since there was

neither objection made nor a special request tendered, the form or fullness of the

                                           -11-
jury instructions are ordinarily not appropriate issues for appellate review. State

v. Cravens, 764 S.W.2d 754, 756-57 (Tenn. 1989). Questions concerning the

instructions are generally deemed to be waived in the absence of objection or

special request, unless they contain plain error. Id. at 757.



      The correctness or fairness of a particular wording of a jury instruction

must be determined from a full reading of the instructions and not solely from

excerpts. State v. Elendt, 654 S.W .2d 411, 414 (Tenn. Crim. App. 1983); Martin

v. State, 542 S.W .2d 638, 642 (Tenn. Crim. App. 1976).           In this instance,

Defendant objects to the omission of the words “prejudice or” from the reading

of the following:

      You can have no prejudice or sympathy, or allow anything but the
      law and the evidence to have any influence upon your verdict. You
      must render your verdict with absolute fairness and impartiality as
      you think justice and truth dictate.


Tennessee Pattern Jury Instructions, Criminal 43.04.



      W ithin the jury instructions, the jury was informed: (1) to give the evidence

introduced by the State and the Defendant a full, fair, and impartial consideration,

(2) to make an impartial consideration of the evidence with fellow jurors, (3) to

render the verdict with absolute fairness and impartiality as justice and truth

dictate, and (4) that the jury was to allow nothing but the law and the evidence to

have any influence upon the verdict.



      The omission of the words “prejudice or” in the charge to the jury does not

rise to a level of plain error which would require a reversal of the judgment under

Rule 52(b) of the Tennessee Rules of Criminal Procedure. It does not meet the

                                        -12-
criteria of State v. Adkisson, 899 S.W .2d at 641-42 discussed supra.          The

omission did not affect the fairness or integrity of the trial, nor did it affect a

substantial right of the Defendant. This issue is without merit.



      W e affirm the judgment of the trial court.



                                 ____________________________________
                                 THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
GARY R. WADE, Judge


___________________________________
JOHN H. PEAY, Judge




                                       -13-
