        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                March 1, 2016 Session


    STATE OF TENNESSEE v. ANTONIO HENDERSON and MARVIN
                         DICKERSON

                 Appeal from the Criminal Court for Shelby County
                     No. 12-05649    Paula L. Skahan, Judge




                No. W2015-00151-CCA-R3-CD - Filed June 10, 2016
                        _____________________________

Following a jury trial, Antonio Henderson (―Defendant Henderson‖) and Marvin
Dickerson (―Defendant Dickerson‖) (collectively, ―the Defendants‖ or ―both
Defendants‖) were each convicted of one count of especially aggravated robbery (Count
1), one count of attempted second degree murder (Count 2), two counts of attempted
aggravated robbery (Counts 3 and 4), one count of aggravated assault (Count 5), and one
count of employing a firearm during the commission of or attempt to commit a dangerous
felony (Count 6). The trial court imposed partially consecutive sentences for both
Defendants and sentenced Defendant Henderson to an effective forty-one years‘
incarceration and Defendant Dickerson to an effective thirty-seven years‘ incarceration.
In this consolidated direct appeal, both Defendants claim the evidence was insufficient to
support their convictions for each count of the indictment. As to the conviction of
especially aggravated robbery, both Defendants assert that the victim‘s serious bodily
injury had to precede or be contemporaneous with the taking in order to constitute
especially aggravated robbery. Additionally, both Defendants contend the trial court
erred in failing to instruct the jury as to certain lesser included offenses and in its
instructions as to the elements of unlawful employment of a firearm. Additionally,
Defendant Henderson claims the trial court erred in sustaining the State‘s objection
during Defendant Henderson‘s closing argument and in sentencing him to serve partially
consecutive sentences. Upon review, we conclude that the trial court committed
reversible error when it failed to make any factual findings to support its order that
Defendant Henderson‘s sentence in Count 1 run consecutively to his sentences in Counts
2 and 6, and we reverse and remand the case for resentencing on the alignment of Count
1 with Counts 2 and 6 of Defendant Henderson‘s sentence. As to the sufficiency of the
evidence concerning the conviction for especially aggravated robbery, we reject the
Defendants‘ argument that a victim must suffer serious bodily injury before or
contemporaneous to the taking of property, and we hold that the evidence was sufficient
to support a conviction for especially aggravated robbery because the taking of property
was accomplished with a deadly weapon and serious bodily injury was suffered by the
victim in connection with the taking. We affirm the judgments of the trial court in all
other respects.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
                     in Part, Reversed in Part, and Remanded

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the Court, in which THOMAS T.
WOODALL, P.J., and ROBERT H. MONTGOMERY, JR., J., joined.

Stephen C. Bush, District Public Defender; Barry W. Kuhn (on appeal) and Jennifer Case
(at trial), Assistant District Public Defenders, for the appellant, Antonio Henderson.

Monica A. Timmerman (on appeal) and Henry Gotten (at trial), Memphis, Tennessee, for
the appellant, Marvin Dickerson.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Pamela Stark and Austin
Scofield, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                      OPINION

               I. FACTUAL AND PROCEDURAL BACKGROUND

      The Shelby County Grand Jury indicted the Defendants with the following
charges:

Count                        Charge                                   Victim

   1              Especially Aggravated Robbery                    Shabaka Reed

   2            Attempted Second Degree Murder                     Shabaka Reed

   3              Attempted Aggravated Robbery                    Nathan Cannon

   4              Attempted Aggravated Robbery                   Tiffany Fleming

   5                    Aggravated Assault                       Tiffany Fleming



                                         -2-
   6          Unlawful Employment of a Firearm During the                 N/A
                 Commission of or Attempt to Commit a
                          Dangerous Felony



Nathan Cannon died from unrelated causes before trial and, therefore, did not testify.

        At trial, Shabaka Reed testified that he and Tiffany Fleming had gone to his uncle,
Nathan Cannon‘s, home on the day of the offense. Mr. Cannon was a grave digger and
lived in the caretaker‘s home on the grounds of a cemetery.1 Mr. Reed and Ms. Fleming
played dominoes with Mr. Cannon; Mr. Reed‘s other uncle, Al Arnette; and a female
friend of Ms. Fleming.2 Mr. Reed and Ms. Fleming left Mr. Cannon‘s house and drove
Mr. Arnette and Ms. Fleming‘s female friend to another location. Mr. Reed and Ms.
Fleming then went to the store to buy beer and a condom, and when they returned to Mr.
Cannon‘s house, Mr. Cannon was not there. Mr. Reed and Ms. Fleming then drove his
car to the back of the cemetery parking lot. While they were inside the car, Mr. Cannon
knocked on the car window and asked for a cigarette. Mr. Cannon walked away and Mr.
Reed got into the driver‘s seat in order to put his pants back on, and Ms. Fleming got in
the front passenger‘s seat.

        At that point, Mr. Reed saw Mr. Cannon ―run to the back end of the car.‖ Mr.
Cannon jumped into the back seat of Mr. Reed‘s car and said, ―Baka, they got guns.‖ Mr.
Reed said Mr. Cannon was scared. Mr. Reed recalled seeing the two men with their
shirts covering their faces, one of whom had a ―long gun‖ pointed at Mr. Cannon. Mr.
Reed also explained that he did not get a good look at the two men because they had their
faces covered, and they instructed the victims not to look at them. The two men ordered
everyone to get out of the car and demanded their cell phones, wallets, and keys. After
Mr. Reed exited the vehicle and gave the men his wallet, keys, and cell phone, he heard
them discussing placing him into the trunk of the car. At that point, Mr. Reed tried to
take the gun from one of the men, and a fight ensued. Mr. Reed recalled that he and the
gunman were ―rolling all on the ground.‖ At one point during the fight, Mr. Reed was
able to gain control of the gun, but the gunman took the gun back. The fight continued
for a short time after the gunman regained control of the gun, but then the gunman ran
away. Mr. Reed tried to follow the gunman but collapsed. At that point, Mr. Reed
realized that he had been shot. Mr. Reed did not know at what point during the fight he
was shot. Mr. Reed could not see Mr. Cannon or Ms. Fleming when he fell to the
ground.


       1
           The specific cemetery is not identified in the record.
       2
           The female friend‘s name does not appear in the record.
                                                   -3-
       Mr. Reed sustained four gunshot wounds—one wound to his leg, stomach, back,
and arm. He underwent surgery, was hospitalized for two weeks, and wore a colostomy
bag for five months. Mr. Reed reported that his wallet was later returned to him by the
police but that he never recovered his keys, his cell phone, or the money in his wallet.
Mr. Reed recalled that both of the men were young, black, and slim. He also recalled that
one of the men had tattoos on his forearm. Mr. Reed identified a photo, which showed
his pants and his wallet on the ground near the passenger side of his car. Mr. Reed stated
that he was scared for his life during this incident.

       On cross-examination, Mr. Reed acknowledged that he knew Patricia Henderson,
Defendant Henderson‘s mother, and that Patricia Henderson had previously been to Mr.
Cannon‘s house. Mr. Reed denied any knowledge that Mr. Cannon kept drugs in his
house or sold drugs from his house. Mr. Reed admitted that he, Ms. Fleming, and Mr.
Cannon were drinking beer while they were playing dominoes at Mr. Cannon‘s house.
Mr. Reed also acknowledged that, in a statement to police, he said, ―[M]e and a friend of
mine were sitting in my car at my uncle‘s house when my uncle approached the car with
two guys that had guns.‖ However, Mr. Reed explained that the statement was incorrect
and that he meant to say he saw his uncle running to the car and that he saw the men with
one gun. Mr. Reed admitted that he ―possibly‖ heard one of the men ask Mr. Cannon
why he ran, and Mr. Reed remembered that the men asked Mr. Cannon where the money
and ―dope‖ were. Mr. Reed acknowledged that he signed the police statement, but he
said that he was in the hospital and on pain medication when he spoke with police and
signed the statement.

       Tiffany Fleming testified that she accompanied Mr. Reed to Mr. Cannon‘s house
around 7:30 or 8:00 p.m. on the night of the offense. While there, they played dominoes
and drank beer. Eventually, Mr. Reed and Ms. Fleming left to take Ms. Fleming‘s female
friend and another one of Mr. Reed‘s uncles to their respective homes. Mr. Reed and Ms.
Fleming then got something to eat and went to the store to buy beer and a condom. Mr.
Reed then drove back to the cemetery and parked his car in the parking lot. Ms. Fleming
agreed that she and Mr. Reed tried to ―be intimate‖ in the car, but she said they were
interrupted by Mr. Cannon asking for a cigarette. Mr. Cannon left, but ―two or three
minutes later‖ Ms. Fleming saw Mr. Cannon approach the car followed by two men who
had shirts wrapped around their heads and ―a big gun.‖ Ms. Fleming noted that the gun
was pointed at Mr. Cannon and that one of the men opened the rear passenger door of
Mr. Reed‘s car so that Mr. Cannon could enter the car. Ms. Fleming recalled that the two
men ―kept asking for money and drugs.‖ Mr. Reed and Ms. Fleming told the two men
that they did not have any drugs and that they did not sell drugs. After Ms. Fleming and
Mr. Reed exited the car, Ms. Fleming heard the two men ask for the keys and ―ask[] to
open up the trunk[.]‖ Ms. Fleming recalled thinking, ―Lord, I hope I can live to see my
kids,‖ because she thought the Defendants were going to force her to get into the trunk.

                                          -4-
At that point, Mr. Reed ―got in a tussle‖ with the man holding the gun. The second man,
who was on Ms. Fleming‘s side of the car, went to the other side of the car to the assist
his companion in the struggle. At that point, Ms. Fleming ―ran for [her] life‖ to some
nearby woods and climbed over a fence, injuring herself. Ms. Fleming heard three or
four gunshots while she hid in the woods. She remained hidden in the woods until she
saw the lights from the police cars. Ms. Fleming could only recall the two men asking
for drugs and money. However, she said she placed her cell phone on the dashboard of
the car ―[b]ecause [she] was giving [the men] what [she] had.‖ Ms. Fleming stated that
she did not see the two men take anything from Mr. Cannon.

       Ms. Fleming also said she could not identify the two men because their faces were
covered by shirts. However, she later learned that she knew one of them. Ms. Fleming
was close friends with Patricia Henderson, and she had known Defendant Henderson
since he was ten or eleven years old. The day after the offense, Ms. Fleming visited Ms.
Henderson and told her what happened. When she arrived at Ms. Henderson‘s house, she
saw both Defendant Henderson and Defendant Dickerson, and Defendant Dickerson had
a cast on his finger. Ms. Fleming asked what happened to Defendant Dickerson‘s hand,
and he responded that he broke his finger. At that time, she did not know that Defendant
Henderson and Defendant Dickerson were involved in the offense. Later, Ms. Fleming
spoke with Defendant Henderson on the phone, and Defendant Henderson said, ―Ms.
Tiffany, I‘m sorry . . . . I didn‘t know that was you.‖ Ms. Fleming believed that
Defendant Henderson was referencing ―this case.‖

       On cross-examination, Ms. Fleming agreed that she had been to Mr. Cannon‘s
home before and that she had seen people smoking marijuana there. Ms. Fleming denied
telling police that she heard someone say ―what you running for‖ as Mr. Cannon
approached the car, and she stated that the first thing she heard was someone demanding
drugs and money. Ms. Fleming confirmed that no one directly asked for her possessions
and that she put her phone on the dash on her own accord. No one ever reached into the
car to take her phone from the dash. Ms. Fleming also confirmed that the two men did
not cause her injuries. She further agreed that she was not certain what Defendant
Henderson was apologizing for when she spoke with him on the phone. Ms. Fleming
confirmed that she gave a statement to police at the scene, but she noted that she was
upset when she gave the statement. Ms. Fleming agreed that her statement to police did
not contain any reference to the two men demanding Mr. Reed‘s keys.

       Officer Demar Wells testified that he was a crime scene investigator with the
Memphis Police Department (―MPD‖). On the night of the offense, Officer Wells
collected evidence, took photographs, and made diagrams of the crime scene. Officer
Wells found four spent nine-millimeter shell casings a few parking spots away from
where Mr. Reed‘s car was parked. Officer Wells noted that nine-millimeter ammunition

                                          -5-
can be fired from a handgun or a long gun. Additionally, Officer Wells found a pair of
pants, a used condom wrapper, and a wallet near Mr. Reed‘s car. On cross-examination,
Officer Reed stated that, other than the type of ammunition, he had no information about
what type of gun may have been used. Officer Wells also confirmed that he did not
collect evidence from inside Mr. Reed‘s car, so he did not know whether any keys were
found inside the car.

        MPD Officer Stacy Milligan testified that he processed Mr. Reed‘s car after it had
been transported to the crime scene unit. Officer Milligan tested both the inside and
outside of the vehicle for fingerprints and found three ―viable‖ prints. He then sent those
prints to be examined. Officer Milligan also stated that he found two cell phones inside
Mr. Reed‘s car.

        James Hill testified that he examined the prints found during the search of Mr.
Reed‘s car. He identified one of the prints as belonging to Defendant Dickerson. The
identified print was taken from the top of the hood on the driver‘s side of Mr. Reed‘s car.

       MPD Officer Benjamin Huff testified that he responded to a call about a gunshot
victim at Methodist South Hospital. When Officer Huff arrived, he discovered that
Defendant Dickerson had been shot in the hand. Defendant Dickerson told police that
―he was walking out of the Summit Park Apartments . . . and he said somebody drove by
and shot him in the hand.‖ Officer Huff went to Summit Park Apartments to investigate
Defendant Dickerson‘s claim, but he was unable to locate any shell casings or any
evidence that a shooting had occurred at that location. On cross-examination, Officer
Huff agreed that it was possible that a shooting could take place without shell casings
being left behind.

       Kimberly Spight testified that she was preparing to go to sleep on the night of the
offense when she received a call from her neighbor, Angela Boles. Ms. Boles asked Ms.
Spight if she ―want[ed] to make some gas money.‖ Ms. Spight said yes and went to her
car where Ms. Boles, Defendant Dickerson, and Defendant Henderson were waiting.
They asked Ms. Spight to open the trunk, and Ms. Spight saw the Defendants place
something into the trunk. Ms. Spight gave the keys to Ms. Boles because Ms. Spight did
not have a license and her taillight was not working. Ms. Spight rode in the front
passenger seat, and the Defendants rode in the back seat. Ms. Boles first drove to a gas
station to allow Ms. Spight to buy a drink and a snack. Then Ms. Boles drove to an area
near a truck stop and train tracks. The Defendants exited the car, retrieved something
from the trunk, and ―went through [a] little cut.‖ Ms. Boles then drove the car back and
forth in the area where they had dropped off the Defendants. During the third or fourth
pass, Ms. Spight heard gunshots and asked, ―[W]hat the f— is going on?‖ Ms. Boles
then drove back to where she had dropped off the Defendants, and the Defendants came
back to the car. Ms. Spight noticed that Defendant Dickerson‘s finger ―was bleeding and
                                           -6-
it was hanging off . . . by a piece of meat.‖ Defendant Dickerson said he wanted to go to
a hospital, and Defendant Henderson said, ―I made a mistake and shot my n—.‖ Ms.
Spight recalled that everyone in the car seemed ―shooken [sic] up and nervous.‖

        Ms. Boles then drove to Kingsgate Apartments, and Defendant Henderson exited
the car with a gun. Ms. Spight did not know there was a gun in the car until she saw
Defendant Henderson exit the car. Ms. Spight recalled that the gun was not a handgun or
pistol but, instead, ―looked like a machine gun[.]‖ After Defendant Henderson left the
car, Ms. Boles drove Defendant Dickerson to the hospital. When they arrived, Ms. Boles
walked Defendant Dickerson into the hospital while Ms. Spight parked the car. Ms.
Spight got out of the car to walk into the hospital, but Ms. Boles came outside and said
that they were not going to stay.

        Ms. Spight drove away from the hospital because Ms. Boles ―was acting like she
was shook [sic] up.‖ As they were driving, Ms. Boles threw a cell phone out of the car
window. Ms. Spight was pulled over by a policeman, and she informed the officer that
she had just taken a man to the hospital ―whose finger got shot off.‖ The officer wrote
Ms. Spight a ticket for driving without a license and ―the tags.‖ Sometime later, police
transported Ms. Spight to the police station. There, Ms. Spight gave a statement about
what she observed on the night of the offense. She also viewed photograph lineups and
identified Defendant Henderson and Defendant Dickerson as the people in her car on the
night of the offense.

       On cross-examination, Ms. Spight said she did not hear anyone planning a robbery
while they drove, and no one asked her to participate in a robbery. Further, she denied
seeing the Defendants carrying any shirts or having shirts wrapped around their heads
when they exited the car. However, Ms. Spight noted, ―I didn‘t look at them like that. I
just know they was [sic] in the back seat[,] and they was [sic] getting out of the car.‖ Ms.
Spight also did not recall anything being wrapped around the Defendants‘ heads when
they returned to the car. Ms. Spight noted that there was no discussion of a robbery after
the Defendants got back into the car. Ms. Spight agreed that in her statement to police,
she said that Ms. Boles threw ―something‖ out of the car window but that she did not say
it was a cell phone.

       The State played two recorded jail phone calls of conversations between
Defendant Henderson and two females. In the first phone call, one female told Defendant
Henderson that she was going to ―call him today.‖ She also mentioned that the person
she was going to call was in the hospital. In a second phone call, Defendant Henderson
told another female that he was ―on [Mr. Reed‘s] side‖ of the car. The State also played
four recorded jail phone calls made by Defendant Dickerson. In the first call, Defendant
Dickerson tells a male that he ―was lying‖ both when he told someone that he was shot
by someone in a black car and that he shot himself. In the same phone call, Defendant
                                           -7-
Dickerson said, ―I did do it.‖ In the second phone call Defendant Dickerson discussed
his charges with a female, and he opined that ―Angie‖ would be turned into a witness if
she ―snitched.‖ In the third call, a male caller commented that something was ―all over
the news,‖ and Defendant Dickerson responded, ―What we did?‖ The fourth phone call
was unintelligible.3

       The Defendants were convicted as charged on all six counts. Count 5 (aggravated
assault of Ms. Fleming) was merged with Count 4 (attempted aggravated robbery of Ms.
Fleming). Following a sentencing hearing, the trial court imposed partially consecutive
sentences for both Defendants and sentenced Defendant Henderson to an effective forty-
one years‘ incarceration and Defendant Dickerson to an effective thirty-seven years‘
incarceration. This timely appeal followed.

                                          II. ANALYSIS

                                   Sufficiency of the Evidence

       Both Defendants argue that the evidence was insufficient to sustain their
convictions for especially aggravated robbery in Count 1. Defendant Henderson also
argues that the evidence was insufficient to support his convictions for the remaining
counts. Although Defendant Dickerson‘s statement of the issues alleges that there was
insufficient evidence to support his convictions for all counts in the indictment, the body
of his brief only argues that there was insufficient evidence to support his conviction in
Count 1. Consequently, Defendant Dickerson‘s claim that the evidence was insufficient
to support his convictions in Counts 2-6 is subject to waiver. See Tenn. Ct. Crim. App.
R. 10(b) (―Issues which are not supported by argument, citation to authorities, or
appropriate references to the record will be treated as waived in this court.‖). However,
because the same facts underlie both Defendants‘ convictions, we will address the merits
of Defendant Dickerson‘s claim that the evidence was insufficient to support his
convictions for all counts in the indictment.

        Our standard of review for a sufficiency of the evidence challenge 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) (emphasis in original); see also Tenn. R.
App. P. 13(e). Questions of fact, the credibility of witnesses, and weight of the evidence
are resolved by the fact finder. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This
court will not reweigh the evidence. Id. Our standard of review ―is the same whether the

        3
         The audio recordings that are included in the record are very difficult to understand. The jury
was provided an unofficial transcript of the recordings, but those transcripts were not admitted into
evidence and are not included in the record on appeal.
                                                 -8-
conviction is based upon direct or circumstantial evidence.‖ State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)) (internal quotation marks omitted).

       A guilty verdict removes the presumption of innocence, replacing it with a
presumption of guilt. Bland, 958 S.W.2d at 659; State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The defendant bears the burden of proving why the evidence was
insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle, 639 S.W.2d at
914. On appeal, the ―State must be afforded the strongest legitimate view of the evidence
and all reasonable inferences that may be drawn therefrom.‖ State v. Vasques, 221
S.W.3d 514, 521 (Tenn. 2007).

                              Defendant Henderson’s Convictions

                          a. Especially Aggravated Robbery (Count 1)

       Theft occurs when someone knowingly takes the property of another without the
owner‘s consent and with the intent to deprive the owner of the property. Tenn. Code
Ann. § 39-14-103(a) (2010). ―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(a) (2010) (emphasis added). ―Especially aggravated robbery is robbery . . .
[a]ccomplished with a deadly weapon; and . . . [w]here the victim suffers serious bodily
injury.‖ Tenn. Code Ann. § 39-13-403(a) (2010). (emphasis added).

       Defendant Henderson argues that the evidence was insufficient to sustain his
conviction for especially aggravated robbery in Count 1 because the taking of Mr. Reed‘s
property was complete before Mr. Reed was shot. He relies on State v. Swift, 308
S.W.3d 827 (Tenn. 2010), and State v. Owens, 20 S.W.3d 634 (Tenn. 2000), to argue that
the victim‘s serious bodily injury must occur contemporaneous to or precede the taking in
order to constitute especially aggravated robbery.4

        We disagree with the Defendant‘s argument that serious bodily injury must
precede or be contemporaneous to the taking of property. As this court stated in State v.
Antonio Jamarc Warfield:

        Appellant argues that his conviction for especially aggravated robbery
       cannot stand ―[b]ecause the victim‘s serious bodily injury did not precede

       4
          The State argues that the facts of this case are distinguishable from Swift and Owens because
the theft from Mr. Reed had not yet been completed. Although we agree that the jury could have
reasonably determined that the taking of property from Mr. Reed was not complete, such a determination
was not necessary to sustain the conviction because the serious bodily injury suffered by the victim was
directly connected to the taking of Mr. Reed‘s property.
                                                 -9-
      or occur contemporaneously with the aggravated robbery.‖ In support,
      appellant cites our supreme court‘s holding in State v. Owens, 20 S.W.3d
      634, 641 (Tenn.2000), that ―that the use of violence or fear must precede or
      be contemporaneous with the taking of property from the person to
      constitute the offense of robbery under Tenn. Code Ann. § 39–13–401.‖
      However, appellant‘s reliance on Owens is misguided. The court in Owens
      addressed ―how closely connected in time must the taking and the violence
      [or fear ] be‖ in order for a theft to constitute a robbery. Owens, 20 S.W.3d
      at 637 (emphasis added). The holding in Owens did not state that the
      bodily injury suffered by the victim must be contemporaneous with the
      taking of property, only that the use of violence or fear must precede or be
      contemporaneous with the taking of property.

State v. Antonio Jamarc Warfield, No. M2011-01235-CCA-R3-CD, 2012 WL 4841546,
at *12 (Tenn. Crim. App. Oct. 5, 2012).

        Swift, like Owens, was a robbery case in which our supreme court held ―that the
temporal proximity between the taking of property and the use of violence or fear is the
sole relevant factor‖ to distinguish theft from robbery. Swift, 308 S.W.3d at 828. As was
the case with the defendant in Antonio Jamarc Warfield, the Defendants‘ reliance on
Swift and Owens to support the argument that serious bodily injury must precede or be
contemporaneous to the taking is ―misguided.‖ Id.

       We hold that the serious bodily injury suffered by the victim can precede, be
contemporaneous with, or occur subsequent to but in connection with the taking of
property of another. Antonio Jamarc Warfield, 2012 WL 4841546, at *12. In this case,
the evidence was more than sufficient to prove beyond a reasonable doubt that Mr.
Reed‘s property was taken, that the taking was accomplished with a deadly weapon, and
that Mr. Reed suffered serious bodily injury in connection with the taking. Therefore, the
evidence supports Defendant Henderson‘s conviction for especially aggravated robbery.

                     b. Attempted Second Degree Murder (Count 2)

       Defendant Henderson argues that the evidence was insufficient to support his
conviction for attempted second degree murder because there was no proof that
Defendant Henderson intended to shoot Mr. Reed. He asserts that the gun may have been
fired accidentally when Defendant Henderson and Mr. Reed were struggling over control
of the gun. The State argues that there was sufficient evidence to support Defendant
Henderson‘s conviction because the testimony showed that Defendant Henderson
regained control of the gun during the fight and that Mr. Reed was shot four times. We
agree with the State.

                                          - 10 -
       As charged in the indictment, second degree murder is ―[a] knowing killing of
another[.]‖ Tenn. Code Ann. § 39-13-210(a)(1) (2010). ―A person acts knowingly with
respect to a result of the person‘s conduct when the person is aware that the conduct is
reasonably certain to cause the result.‖ Tenn. Code Ann. § 39-11-106(a)(20) (2010). As
instructed to the jury, attempt is defined as:

       A person commits criminal attempt who, acting with the kind of culpability
       otherwise required for the offense . . . [a]cts with intent to complete a
       course of action or cause a result that would constitute the offense, under
       the circumstances surrounding the conduct as the person believes them to
       be, and the conduct constitutes a substantial step toward the commission of
       the offense.

Tenn. Code Ann. § 39-12-101(a)(3) (2010). Therefore, to convict Defendant Henderson
of attempted second degree murder, the State had to prove that Defendant Henderson
acted with the intent to cause the knowing killing of another and that his actions
constituted a substantial step toward that goal. See State v. Inlow, 52 S.W.3d 101, 104
(Tenn. Crim. App. 2000). Intent can seldom be proven by direct evidence, but it ―may be
deduced or inferred by the trier of fact from the character of the assault, the nature of the
act and from all the circumstances of the case in evidence.‖ Id. at 105 (citing State v.
Holland, 860 S.W.2d 53, 59 (Tenn. Crim. App. 1993)).

        The evidence showed that the Defendants approached Mr. Reed‘s car, ordered Mr.
Reed to exit the car, and demanded money and drugs as well as Mr. Reed‘s cell phone,
keys, and wallet. After Mr. Reed handed over his possessions, he overheard the
Defendants‘ discussing locking him in the trunk. At that point, Mr. Reed attempted to
gain control of the gun, and a struggle ensued. As noted above, Defendant Henderson
admitted that he was standing on Mr. Reed‘s side of the car, and there was sufficient
evidence for the jury to conclude that Defendant Henderson was holding the gun.
Further, Defendant Henderson appears to concede in his brief that he engaged in a
struggle with Mr. Reed for the gun. During the struggle, Mr. Reed was shot in the leg,
arm, stomach, and back. Moreover, witnesses described the weapon as a ―long gun.‖
Based on the location of Mr. Reed‘s injuries—especially the gunshot wound to his
back—the jury could infer that Defendant Henderson was the person who fired the gun
and that Mr. Reed did not shoot himself. Further, based on the character of and the
circumstances surrounding the offense, specifically the number of times Mr. Reed was
shot, the jury could conclude that the gun was not fired accidentally but that Defendant
Henderson knowingly shot Mr. Reed. The evidence was sufficient to support Defendant
Henderson‘s conviction for attempted second degree murder.



                                           - 11 -
                  c. Attempted Aggravated Robbery (Counts 3 and 4)

        Defendant Henderson argues that there was insufficient evidence to support his
convictions for ―aggravated robbery‖ in Counts 3 and 4 because there was no evidence
that any property was taken from Mr. Cannon or Ms. Fleming by use of violence or by
putting them in fear with the use of a deadly weapon. However, we note that Defendant
Henderson was convicted of attempted aggravated robbery, and not aggravated robbery,
as his brief asserts.

       ―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(a)
(2010). As charged in Counts 3 and 4, aggravated robbery is a robbery that 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[.]‖ Tenn. Code Ann. § 39-
13-402(a)(1) (2010). As instructed to the jury, criminal attempt is defined as follows:

      A person commits criminal attempt who, acting with the kind of culpability
      otherwise required for the offense . . . [a]cts with intent to complete a
      course of action or cause a result that would constitute the offense, under
      the circumstances surrounding the conduct as the person believes them to
      be, and the conduct constitutes a substantial step toward the commission of
      the offense.

Tenn. Code Ann. § 39-12-101(a)(3) (2010).

      In this case, the jury could conclude beyond a reasonable doubt that, by pointing a
gun at Mr. Cannon and demanding all the victims‘ cell phones, keys, and wallets,
Defendant Henderson took a substantial step toward taking property from Mr. Cannon
and Ms. Fleming by violence or putting Mr. Cannon and Ms. Fleming in fear and that the
Defendant did so by the display of a deadly weapon. The evidence was sufficient to
support Defendant Henderson‘s convictions in Count 3 and Count 4.

                            d. Aggravated Assault (Count 5)

       Defendant Henderson argues that the evidence was insufficient to support his
conviction of the aggravated assault of Ms. Fleming because there was no evidence that
the gun was ever pointed at Ms. Fleming. The State argues that the evidence was
sufficient because Defendant Henderson brandished a gun and Ms. Fleming testified that
she was afraid.

      As charged in the indictment, ―[a] person commits assault who . . . [i]ntentionally
or knowingly causes another to reasonably fear imminent bodily injury[.]‖ Tenn. Code

                                         - 12 -
Ann. § 39-13-101(a)(2) (2010). As relevant to this case, an assault is aggravated if it
―[i]nvolved the use or display of a deadly weapon[.]‖ Tenn. Code Ann. 39-13-
102(a)(1)(A)(ii) (Supp. 2012).

       Defendant Henderson‘s argument that there was insufficient evidence to support
his conviction for aggravated assault because the weapon was never pointed at Ms.
Fleming is without merit. Under the language of the statute, an assault can be aggravated
merely by the display of a deadly weapon. The weapon does not have to be aimed at any
particular individual. See id. As noted above, there was sufficient evidence for the jury
to conclude that Defendant Henderson was holding the gun and that the gun was clearly
visible to Ms. Fleming. The evidence was sufficient for the jury to conclude that
Defendant Henderson intentionally or knowingly caused Ms. Fleming to reasonably fear
imminent bodily injury and that he did so by use or display of a deadly weapon.

e. Unlawful Employment of a Firearm During the Commission of or Attempt to Commit
                          a Dangerous Felony (Count 6)

       Defendant Henderson next argues that the evidence was insufficient to support his
conviction for unlawful employment of a firearm during the commission of or attempt to
commit a dangerous felony because there was insufficient evidence to convict him of the
predicate offense—attempted second degree murder. The State argues that there was
sufficient evidence to support this conviction because there was sufficient evidence to
support Defendant Henderson‘s conviction of attempted second degree murder.

      It is an offense to employ a firearm during the commission of or attempt to
commit a dangerous felony. Tenn. Code Ann. § 39-17-1324(b)(1)-(2) (Supp. 2012).
Attempted second degree murder and voluntary manslaughter are defined as a
―dangerous felony‖ for the purposes of this offense. Tenn. Code Ann. § 39-17-
1324(i)(1)(B)-(C) (Supp. 2012).

       We have already determined that the evidence was sufficient to support Defendant
Henderson‘s conviction for attempted second degree murder and that the Defendants
used a gun during the commission of the offense. As noted above, there was sufficient
evidence for the jury to conclude that Defendant Henderson was the person holding the
gun. Therefore, there was sufficient evidence to support Defendant Henderson‘s
conviction for unlawful employment of a firearm during the commission of or attempt to
commit a dangerous felony.

                          Defendant Dickerson’s Convictions

      During closing arguments, the State asserted that Defendant Henderson had
possession of the gun during the commission of the offenses and that Defendant
                                         - 13 -
Dickerson was criminally responsible for Defendant Henderson‘s actions. ―A person is
criminally responsible as a party to an offense, if the offense is committed by the person‘s
own conduct, by the conduct of another for which the person is criminally responsible, or
by both. . . . Each party to an offense may be charged with commission of the offense.‖
Tenn. Code Ann. § 39-11-401 (2010). As charged in this case, ―[a] person is criminally
responsible for an offense committed by the conduct of another if . . . [a]cting with the
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). Additionally, our
supreme court has stated:

       [T]he statute makes a defendant criminally liable for the acts of
       confederates that are the natural and probable consequence of the crime in
       which the defendant participated. Extending criminal liability to secondary
       actors is reasonable as long as the crimes committed by others were the
       foreseeable result of the consummation of the intended crime. Thus, the
       statute may apply despite the fact that the criminal conduct of others differs
       from or exceeds the scope of the target crime.

State v. Richmond, 90 S.W.3d 648, 655 (Tenn. 2002).

        In order to convict a defendant under the theory of criminal responsibility, the
State must prove beyond a reasonable doubt and the jury must find: ―(1) the elements of
the crime or crimes that accompanied the target crime; (2) the defendant was criminally
responsible pursuant to Tennessee Code Annotated section 39-11-402; and, (3) that the
other crimes that were committed were the natural and probable consequences of the
target crime.‖ Id. at 656 (quoting State v. Howard, 30 S.W.3d 271, 276 (Tenn. 2000))
(internal quotation marks omitted). Whether an offense is the natural and probable
consequence of a target crime is a question for the jury, and the trial court must instruct
the jury on the natural and probable consequences rule. Id. at 656-57. In this case, the
trial court instructed the jury on criminal responsibility and the natural and probable
consequences rule.

   a. Especially Aggravated Robbery (Count 1) and Attempted Second Degree Murder
                                      (Count 2)

       Initially, we note that Defendant Dickerson also argues that the evidence was
insufficient to sustain his conviction for especially aggravated robbery because the taking
was complete before Mr. Reed was shot. There was sufficient evidence to show that Mr.
Reed‘s property was taken, that the taking was accomplished with a deadly weapon, and
that Mr. Reed suffered serious bodily injury in connection to the robbery. Additionally,
Defendant Dickerson asserts that ―while Mr. Reed certainly sustained bodily injury, it is
                                           - 14 -
unclear whether he actually had any property taken from him.‖ As we have already
stated, the evidence in this case clearly showed that property was taken from Mr. Reed.
Mr. Reed gave his wallet, keys, and cell phone to the robbers. The only item he
recovered was his wallet, but the money that was inside of the wallet was missing.

        As noted above, the evidence was sufficient for the jury to conclude that
Defendant Henderson was carrying the gun and standing on Mr. Reed‘s side of the car.
Further, Ms. Fleming testified that the second man was standing on her side of the car but
that he went to the other side of the car to assist his companion when Mr. Reed attempted
to gain control over the gun. After the shooting, the Defendants fled the scene together
and got into the same getaway car. The evidence was sufficient for the jury to conclude
that Defendant Dickerson acted with the intent to promote or assist Defendant Henderson
in the commission of especially aggravated robbery.

       Similarly, the jury could conclude that attempted second degree murder was a
natural and probable consequence of the target offense. The Defendants brought a loaded
weapon to a planned robbery and openly discussed placing Mr. Reed in the trunk of the
car. The jury could conclude that Mr. Reed‘s attempts to take control of the gun and the
shooting of Mr. Reed were a natural and probable consequence of the Defendants‘
actions. The evidence was sufficient to support Defendant Dickerson‘s convictions for
especially aggravated robbery and attempted second degree murder in Counts 1 and 2.

                   b. Attempted Aggravated Robbery (Counts 3 and 4)

        The elements of attempted aggravated robbery and aggravated assault are set forth
above. See Tenn. Code Ann. § 39-13-401(a) (2010) (robbery); Tenn. Code Ann. § 39-
13-402(a)(1) (2010) (aggravated robbery); Tenn. Code Ann. § 39-12-101(a)(3) (2010)
(criminal attempt). We have already concluded that there was sufficient evidence to
support Defendant Henderson‘s conviction for attempted aggravated robbery because he
took a substantial step toward completing that robbery by demanding property from all
three victims, the victims were placed in fear, and that Defendant Henderson used or
displayed a deadly weapon in the commission of the offense. We further conclude that
the evidence was sufficient for the jury to conclude that Defendant Dickerson acted with
the intent to promote or assist the commission of the attempted aggravated robbery of Mr.
Cannon and Ms. Fleming. The evidence showed that Defendant Dickerson and
Defendant Henderson approached Mr. Reed‘s car with a gun and stood on each side of
the car. The gun was pointed at Mr. Cannon as he got into the car, and it was visible to
both Mr. Reed and Ms. Fleming. Property was demanded of all the victims, and Ms.
Fleming placed her cell phone onto the car‘s dashboard ―[b]ecause [she] was giving [the
men] what [she] had.‖ After Mr. Reed was shot, both Defendants fled the scene together.
Therefore, the evidence was sufficient to support Defendant Dickerson‘s convictions for
attempted aggravated robbery in Counts 3 and 4.
                                           - 15 -
                             c. Aggravated Assault (Count 5)

       The elements of aggravated assault are set forth above. Tenn. Code Ann. § 39-1-
101(a)(2) (2010) (assault); Tenn. Code Ann. § 39-13-102(a)(1)(A)(iii) (2010) (aggravated
assault). As noted above, there was sufficient evidence for the jury to conclude that
Defendant Henderson was holding the gun, and the gun was clearly visible to Ms.
Fleming, who was in fear for her safety. We have already concluded that the evidence
was sufficient to support Defendant Henderson‘s convictions for aggravated assault. The
jury could reasonably conclude that Defendant Dickerson acted with the intent to
promote or assist in the commission of aggravated assault. See Tenn. Code Ann. § 39-
11-402(2) (2010). Therefore, the evidence was sufficient to support Defendant
Dickerson‘s conviction for aggravated assault.

 d. Unlawful Employment of a Firearm During the Commission of a Dangerous Felony
                                    (Count 6)

       It is an offense to employ a firearm during the commission of or attempt to
commit a dangerous felony. Tenn. Code Ann. § 39-17-1324(b)(1)-(2) (Supp. 2012).
Attempted second degree murder and voluntary manslaughter are defined as dangerous
felonies for the purposes of this offense. Tenn. Code Ann. § 39-17-1324(i)(1)(B)-(C)
(Supp. 2012). The evidence showed that both Defendants placed a firearm in the back of
Ms. Spight‘s car and that they used the firearm in order to take property from the victims.
As noted above, the evidence was sufficient for the jury to conclude that attempted
second degree murder was a natural and probable consequence of the intended
aggravated robbery. Therefore, the evidence was sufficient to support Defendant
Dickerson‘s conviction for unlawful employment of a firearm during the commission of
attempted second degree murder under the theory of criminal responsibility.

                Failure to Charge Lesser Included Offenses in Count 1

       Prior to trial, both Defendants submitted written requests that the trial court
instruct the jury as to the elements of attempted especially aggravated robbery and
attempted aggravated robbery as lesser included offenses of especially aggravated
robbery in Count 1. The trial court denied the Defendants‘ requests because the proof
indicated that there was a completed taking from Mr. Reed.

       On appeal, both Defendants argue that the trial court should have instructed the
jury as to the requested lesser included offenses and attempted robbery as lesser included
offenses of especially aggravated robbery in Count 1. The Defendants assert that,
because Mr. Reed‘s wallet was found on the ground near his car, the jury could have
concluded that his wallet merely fell to the ground when he exited the car and that the
Defendants never took it. Further, the Defendants argue that the jury could have
                                          - 16 -
concluded that the Defendants did not take Mr. Reed‘s cell phone because two cell
phones were found inside Mr. Reed‘s car. In short, the Defendants argue that the jury
could have concluded that ―an actual taking never occurred.‖ The State argues that the
trial court properly concluded that the evidence established that the Defendants
completed a robbery of Mr. Reed and properly denied the Defendants‘ request for an
instruction as to the requested lesser included offenses.

                    a. Attempted Especially Aggravated Robbery and
                            Attempted Aggravated Robbery

        Whether the trial court should have instructed the jury on a lesser included offense
is a mixed question of law and fact, which we review de novo with no presumption of
correctness. State v. Banks, 271 S.W.3d 90, 124 (Tenn. 2008) (citing State v. Hatfield,
130 S.W.3d 40, 41 (Tenn. 2004); Carpenter v. State, 126 S.W.3d 879, 892 (Tenn. 2004)).
When addressing issues related to failure to charge lesser included offenses, appellate
courts consider three questions: ―(1) whether the offense is a lesser[-]included offense;
(2) whether the evidence supports a lesser[-]included offense instruction; and (3) whether
the failure to give the instruction is harmless error.‖ Id. (citing State v. Allen, 69 S.W.3d
181, 187 (Tenn. 2002)).

       Pursuant to Tennessee Code Annotated section 40-18-110(f), an offense is a lesser
included offense if:

       (1) All of its statutory elements are included within the statutory elements
       of the offense charged;

       (2) The offense is facilitation of the offense charged or of an offense that
       otherwise meets the definition of lesser included offense in subdivision
       (f)(1);

       (3) The offense is an attempt to commit the offense charged or an offense
       that otherwise meets the definition of lesser included offense in subdivision
       (f)(1); or

       (4) The offense is solicitation to commit the offense charged or an offense
       that otherwise meets the definition of lesser included offense in subdivision
       (f)(1).

Tenn. Code Ann. § 40-18-110(f) (2012).

      If ―a lesser offense is included in the charged offense, the question remains
whether the evidence justifies a jury instruction on such lesser offense.‖ State v. Burns, 6

                                           - 17 -
S.W.3d 453, 467 (Tenn. 1999). Tennessee Code Annotated section 40-18-110(a) (2012)
provides:

       When requested by a party in writing prior to the trial judge‘s instructions
       to the jury in a criminal case, the trial judge shall instruct the jury as to the
       law of each offense specifically identified in the request that is a lesser
       included offense of the offense charged in the indictment or presentment.
       However, the trial judge shall not instruct the jury as to any lesser included
       offense unless the judge determines that the record contains any evidence
       which reasonable minds could accept as to the lesser included offense. In
       making this determination, the trial judge shall view the evidence liberally
       in the light most favorable to the existence of the lesser included offense
       without making any judgment on the credibility of evidence. The trial
       judge shall also determine whether the evidence, viewed in this light, is
       legally sufficient to support a conviction for the lesser included offense.

Generally, evidence that is sufficient to support an instruction on the greater offense will
also support an instruction on the lesser included offense under Tennessee Code
Annotated section 40-18-110(f)(1). Banks, 271 S.W.3d at 125. However, instructions on
the lesser included offenses of attempt, solicitation, or facilitation are unnecessary ―where
the evidence clearly establishes completion of the criminal act or simply does not involve
proof of solicitation or facilitation.‖ Id. (citing State v. Wilson, 211 S.W.3d 714, 721 n.2
(Tenn. 2007); State v. Robinson, 146 S.W.3d 469, 487 n.7 (Tenn. 2004)).

       In this case, attempted especially aggravated robbery is a lesser included offense
of especially aggravated robbery pursuant to Tennessee Code Annotated section 40-18-
110(f)(3). Further, aggravated robbery is a lesser included offense of especially
aggravated robbery because all of its elements are included within the elements of
especially aggravated robbery. See Tenn. Code Ann. § 40-18-110(f)(1); see also Tenn.
Code Ann. § 39-13-403 (2010) (especially aggravated robbery is robbery accomplished
with a deadly weapon and where the victim suffers serious bodily injury); Tenn. Code
Ann. § 39-13-402 (2010) (aggravated robbery is robbery accomplished 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).
Therefore, attempted aggravated robbery is a lesser included offense of especially
aggravated robbery. See Tenn. Code Ann. § 40-18-110(f)(3) (―The offense is an attempt
to commit the offense charged or an offense that otherwise meets the definition of lesser
included offense in subdivision (f)(1)[.]‖).

       We next turn to ―whether the evidence supports a lesser included offense
instruction[.]‖ Banks, 271 S.W.3d at 124. In this case, Mr. Reed testified that the
Defendants approached the car with a gun and ordered him out of the car. They then
                                       - 18 -
demanded Mr. Reed‘s wallet, keys, and cell phone, and Mr. Reed gave them the
requested items. The only item that was returned to Mr. Reed was his wallet, but the
money that was inside the wallet was missing. As to the Defendants‘ argument that the
jury could have concluded that one of the cell phones found inside the car belonged to
Mr. Reed, Mr. Reed clearly testified that he handed over his cell phone to one of the
Defendants and that it was never returned to him. Therefore, the evidence clearly
established that there was a completed taking from Mr. Reed in Count 1. The trial court
did not err when it declined to instructed the jury on the lesser included offenses of
attempted especially aggravated robbery and attempted aggravated robbery. The
Defendants are not entitled to relief on this issue.

                                   b. Attempted Robbery

        The Defendants also argue that the trial court should have instructed the jury as to
the elements of attempted robbery as a lesser included offense in Count 1. However, we
note that nothing in the record indicates that the Defendants requested in writing that the
trial court instruct the jury as to the elements of attempted robbery as a lesser included
offense in Count 1. Tennessee Code Annotated section 40-18-110(c) states:

       Notwithstanding any other provision of law to the contrary, when the
       defendant fails to request the instruction of a lesser included offense as
       required by this section, the lesser included offense instruction is waived.
       Absent a written request, the failure of the trial judge to instruct the jury on
       any lesser included offense may not be presented as a ground for relief
       either in a motion for a new trial or on appeal.

       However, defendants have a constitutional right to a correct and complete charge
of the law. State v. Page, 184 S.W.3d 223, 229 (Tenn. 2006) (citing State v. Teel, 793
S.W.2d 263, 249 (Tenn. 1990)). Therefore, erroneous or inaccurate jury instructions may
be cited as error for the first time on appeal, but ―a trial court‘s incomplete jury charge
may be cited as error on appeal only if the defendant requested a lesser included offense
charge at trial.‖ Id. (citing State v. Faulkner, 154 S.W.3d 48, 58 (Tenn. 2005)).
Nevertheless, even if the issue is waived, this court may still consider allegations of
incomplete jury instructions under plain error review. State v. Fayne, 451 S.W.3d 362,
371 (Tenn. 2014).

       Because the Defendants failed to submit a written request for an instruction for
attempted robbery, their argument about the failure to charge that offense is waived on
appeal. See Tenn. Code Ann. § 40-18-110(c); Fayne, 451 S.W.3d at 371. Additionally,
we decline to review the matter for plain error because, as noted above, the proof clearly
shows that there was a completed taking in this case. See Banks, 271 S.W.3d at 125.

                                            - 19 -
        Failure to Instruct Jury on Elements of Reckless Aggravated Assault

        Prior to trial, the Defendants submitted written requests that the trial court charge
reckless aggravated assault as a lesser included offense of especially aggravated robbery
(Count 1) and attempted aggravated robbery (Counts 3 and 4). At the beginning of the
jury instructions, the trial court informed the jury that reckless aggravated assault was a
lesser included offense of especially aggravated robbery (Count 1), attempted aggravated
robbery (Counts 3 and 4), and aggravated assault (Count 5). Reckless aggravated assault
was also listed as a lesser included offense in the instructions for the verdict forms for
Counts 3, 4, and 5. However, the trial court failed to define the elements of reckless
aggravated assault in the jury instructions. On appeal, the Defendants assert that the trial
court erred when it failed to define the elements of reckless aggravated assault as a lesser
included offense of especially aggravated robbery, attempted aggravated robbery, and
aggravated assault.

        Initially, we note that neither of the Defendants submitted a written request that
the trial court charge reckless aggravated assault as a lesser included offense of
aggravated assault in Count 5. ―Absent a written request, the failure of a trial judge to
instruct the jury on any lesser included offense may not be presented as a ground for
relief either in a motion for new trial or on appeal.‖ Tenn. Code Ann. § 40-18-110(c)
(2012). Because the Defendants failed to submit a written request, they have waived our
consideration of whether the trial court should have charged reckless aggravated assault
as a lesser included offense of assault in Count 5. However, we may still review the
failure to charge such lesser included offense for plain error. Fayne, 451 S.W.3d at 371.
Therefore, we will first address whether the trial court erred in failing to define the
elements of reckless aggravated assault as a lesser included offense of especially
aggravated robbery and attempted aggravated robbery in Counts 1, 3, and 4. We will
then consider whether the Defendants are entitled to plain error relief for the trial court‘s
failure to define the elements of reckless aggravated assault as a lesser included offense
of aggravate assault in Count 5.

Charged as a Lesser Included Offense of Especially Aggravated Robbery and Attempted
                      Aggravated Robbery (Counts 1, 3, and 4)

       As stated above, whether the trial court should have instructed the jury on a lesser
included offense is a mixed question of law and fact, which we review de novo with no
presumption of correctness. Banks, 271 S.W.3d at 124 (citing Hatfield, 130 S.W.3d at
41; Carpenter, 126 S.W.3d at 892). When addressing issues related to failure to charge
lesser included offenses, appellate courts consider three questions: ―(1) whether the
offense is a lesser-included offense; (2) whether the evidence supports a lesser-included
offense instruction; and (3) whether the failure to give the instruction is harmless error.‖

                                           - 20 -
Id. (citing Allen, 69 S.W.3d at 187). ―[I]f the purported lesser-included offense is not
actually a lesser-included offense, then the court‘s inquiry ends.‖ Id. at 125.

       As applicable to this issue, reckless aggravated assault is a lesser included offense
of the charged offenses if ―[a]ll of its statutory elements are included within the statutory
elements of the offense charged[.]‖ Tenn. Code Ann. § 40-18-10(f)(1) (2012). At the
time of offense in this case, a person committed reckless aggravated assault when he or
she ―[r]ecklessly commit[ted] an assault as defined in § 39-13-102(a)(1), and: (i)
[c]ause[d] serious bodily injury to another; or (ii) [u]se[d] or display[ed] a deadly
weapon.‖ Tenn. Code Ann. § 39-13-102(a)(1)(B) (Supp. 2012). A person commits
assault under section 39-13-101(a)(1) if he or she ―[i]ntentionally, knowingly, or
recklessly causes bodily injury to another.‖ Therefore, ―by the plain language defining
the offense, reckless aggravated assault requires bodily injury.‖ State v. Goodwin, 143
S.W.3d 771, 776 (Tenn. 2004).

                       a. Especially Aggravated Robbery (Count 1)

       ―Especially aggravated robbery is robbery as defined in § 39-13-401: (1)
[a]ccomplished with a deadly weapon; and (2) [w]here the victim suffers serious bodily
injury.‖ Tenn. Code Ann. § 39-13-403(a) (2010). As defined in section 39-13-401,
―[r]obbery 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(a) (2010). This
court has previously stated that both reckless aggravated assault and knowing or
intentional aggravated assault are lesser included offenses of especially aggravated
robbery because all of the elements of aggravated assault are included in the definition of
especially aggravated robbery. State v. Donald Clark, No. W2011-01549-CCA-R3-CD,
2003 WL 21339272, at *4 (Tenn. Crim. App. May 15, 2003), perm. app. denied (Tenn.
Oct. 27, 2003).

       Further, both Defendants argued during closing arguments that it was possible that
Mr. Reed was shot by accident during the struggle for the gun. If the Defendants‘ theory
was believed, then the shooting was, at most, reckless. Therefore, the trial court erred by
failing to define the elements of reckless aggravated assault as a lesser included offense
to especially aggravated robbery in Count 1. See id.

                   b. Attempted Aggravated Robbery (Counts 3 and 4)

       As a preliminary matter, we note that Defendant Dickerson fails to include in his
brief any argument that the trial court erred in failing to define the elements of reckless
aggravated assault as a lesser included offense of attempted aggravated robbery (Counts 3
and 4). Therefore, his claim as to Counts 3 and 4 is waived. See Tenn. Ct. Crim. App. R.
10(b). However, because the analysis is identical for both Defendants, we will consider,
                                           - 21 -
in addition to the arguments presented in Defendant Dickerson‘s brief, the merits of his
assertion that the trial court should have defined the elements of reckless aggravated
assault as a lesser included offense in Counts 3 and 4. See Tenn. R. App. P. 36(b).

       As charged in Counts 3 and 4, aggravated robbery ―is robbery as defined in § 39-
13-401 . . . [a]ccomplished with a deadly weapon or by display or any article used or
fashioned to lead the victim to reasonably believe it to be a deadly weapon[.]‖ Tenn.
Code Ann. § 39-13-402(a)(1) (2010). Tennessee Code Annotated section 39-13-401
defines robbery as ―the intentional or knowing theft of property from the person of
another by violence or putting the person in fear.‖ As instructed to the jury, attempt is
defined as:

       A person commits criminal attempt who, acting with the kind of culpability
       otherwise required for the offense . . . [a]cts with intent to complete a
       course of action or cause a result that would constitute the offense, under
       the circumstances surrounding the conduct as the person believes them to
       be, and the conduct constitutes a substantial step toward the commission of
       the offense.

Tenn. Code Ann. § 39-12-101(a)(3) (2010).

        Under the plain language of the offense as charged in Counts 3 and 4, attempted
aggravated robbery does not include bodily injury. As noted above, reckless aggravated
assault requires bodily injury. Goodwin, 143 S.W.3d at 776. Therefore, all of the
statutory elements of reckless aggravated assault are not included within the statutory
elements of attempted aggravated robbery as charged in this case. Consequently, reckless
aggravated assault is not a lesser included offense of attempted aggravated robbery as
charged in this case. See Tenn. Code Ann. § 40-18-10(f)(1) (2012). The trial court did
not err by not defining the elements of reckless aggravated assault as a lesser included
offense of attempted aggravated robbery in Counts 3 and 4. However, informing the jury
that reckless aggravated assault was a lesser included offense in Counts 3 and 4 and
listing it as a possible lesser included offense in the instruction for filling out the verdict
forms in Counts 3 and 4 was error.

                                      c. Harmless Error

       We must next determine whether the trial court‘s errors were harmless. Williams,
977 S.W.2d at 105. As stated above, if the jury convicts a defendant of the highest
charged offense, to the exclusion of the immediately lesser offense, ―the jury necessarily
rejected all other lesser offenses[.]‖ Williams, 977 S.W.2d at 106. In such cases, the
omission of an instruction for a lesser included offense is harmless beyond a reasonable

                                            - 22 -
doubt. Rashe Moore v. State, 2016 WL 1043121, at *7 (citing Williams, 977 S.W.2d at
106).

       In this case, the jury convicted the Defendants as charged in Counts 1, 3 and 4.
Therefore, by convicting the Defendants as charged, to the exclusion of the immediately
lesser offense, the jury rejected all lesser included offenses, including reckless aggravated
assault. Consequently, the trial court‘s errors with regard to its instructing reckless
aggravated assault as a lesser included offense in Counts 1, 3, and 4 were harmless
beyond a reasonable doubt. See id. at *7; Williams, 977 S.W.2d at 106.. The Defendants
are not entitled to relief.

         Charged as a Lesser Included Offense of Aggravated Assault (Count 5)

       As we noted above, we may review this issue for plain error. Fayne, 451 S.W.3d
at 371. Plain error relief will only be granted when all of the following criteria are met:

       (a) the record must clearly establish what occurred at trial; (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.‖

Fayne, 451 S.W.3d at 371-72. In order to be entitled to plain error relief, all five factors
must be established, and ―complete consideration of all the factors is not necessary when
it is clear from the record that at least one of the factors cannot be established.‖ Smith,
24 S.W.3d at 283. Further, ―‗the plain error must [have been] of such a great magnitude
that it probably changed the outcome of the trial.‘‖ Id. (quoting State v. Adkisson, 899
S.W.2d 626, 642 (Tenn. Crim. App. 1994)). The defendant bears the burden of
persuading the appellate court that the trial court committed plain error. State v. Bledsoe,
226 S.W.3d 349, 355 (Tenn. 2007).

       In this case, the Defendants have failed to show that consideration of this issue is
―necessary to do substantial justice.‖ The Defendants were convicted of the charged
offense in Count 5. By convicting the Defendants of the charged offense, the jury
necessarily rejected all lesser included offenses, including reckless aggravated assault.
See Rashe Moore, 2016 WL 1043121, at *7; Williams, 977 S.W.2d at 106.. Therefore,
plain error relief is not necessary to do substantial justice. See

   Failure to Instruct Jury on the Elements of Attempted Facilitation of Robbery

      The Defendants next argue that the trial court erred when it failed to define the
elements for attempted facilitation of robbery as a lesser included offense of attempted

                                           - 23 -
aggravated robbery in Counts 3 and 4. The State argues that, because the trial court
defined criminal responsibility, criminal attempt, facilitation of a felony, and robbery at
different points in the jury instructions, it necessarily defined the elements of attempted
facilitation of robbery.

        As a preliminary matter, we note that the Defendants have waived our
consideration of this issue because they did not submit a written request that attempted
facilitation of aggravated robbery be charged as a lesser included offense in Counts 3 and
4. See Tenn. Code Ann. § 40-18-110(c) (2012). However, we may still consider their
claim under plain error review. Fayne, 451 S.W.3d at 371. The standard for plain error
review is set forth above.

       The Defendants are not entitled to plain error relief in this case because
consideration of this issue is not ―necessary to do substantial justice.‖ The Defendants
were convicted of the charged offense in Counts 3 and 4, ―to the exclusion of the
immediately lesser offense.‖ See Williams, 977 S.W.2d at 106. By convicting the
Defendants of the charged offense, the jury necessarily rejected all lesser included
offenses, including attempted facilitation of aggravated robbery. See Rashe Moore, 2016
WL 1043121, at *7; Williams, 977 S.W.2d at 106. Therefore, plain error relief is not
necessary to do substantial justice.

            Errors in Charge and Verdict Form Instructions for Count 6

       Both Defendants argue that the trial court erred in its instructions to the jury
regarding the elements of unlawful employment of a firearm during the commission of or
attempt to commit a dangerous felony and in its instructions regarding the verdict form
for that offense. The Defendants assert that the jury instructions did not specify
attempted second degree murder as the predicate dangerous felony and, therefore, the
jury could have convicted the Defendants of the offense in Count 6 even if they found
that the Defendants committed ―any dangerous offense whatsoever, even an offense not
charged in the indictment.‖ They further argue that the wording of the instructions for
the verdict form allowed the jury to convict the Defendants in Count 6 ―for no other
reason than the previous finding of guilt on the qualifying dangerous felony.‖ The State
argues that, when the instructions on the elements of the offense and the instructions for
the verdict form are read in concert, the trial court clearly identified attempted second
degree murder as the underlying felony. Further, the State contends that the instruction
clearly informs the jury that they must find the Defendants guilty of both the underlying
predicate offense and the elements of employing a firearm during the commission of that
offense to convict them in Count 6.

       When defining the elements of the offense in Count 6, the trial court gave the
following instruction:
                                          - 24 -
      Unlawful employment of a firearm during the commission of or attempt to
      commit a dangerous offense[:] Any person who employs a firearm during
      the commission of or attempt to commit a dangerous felony is guilty of a
      crime. For you to find the defendant guilty of this offense, the [S]tate must
      have proven beyond a reasonable doubt the existence of the following
      essential elements[:]

      Number one, that the defendant employed a firearm.

      Number two, that the employment was during the commission of or attempt
      to commit a dangerous felony.

      Number three, that the defendant acted either intentionally, knowingly, or
      recklessly.

The trial court did not specify which dangerous felony applied to Count 6 when defining
the elements of the offense. However, the applicable predicate felony was identified in
the instructions for the verdict form in Count 6. The trial court‘s instructions regarding
the verdict form read as follows:

             Members of the Jury, only if you have convicted [Defendant
      Henderson or Defendant Dickerson] under Count Two of the indictment of
      the offense of Criminal Attempt Murder Second Degree or the lesser
      included offense of Criminal Attempt Voluntary [Manslaughter], shall you
      consider his guilt in Count Six of the indictment.

             It will now be your duty to determine whether or not the defendant is
      guilty of Employing a Firearm During the Commission of a Dangerous
      [Felony].

            If you find the defendant or [sic] guilty of Criminal Attempt Murder
      Second Degree or Criminal Attempt Voluntary Manslaughter, beyond a
      reasonable doubt, your verdict should be,

             ―We, the Jury, find the defendant [Antonio Henderson or Marvin
      Dickerson] guilty of Employing a Firearm During the Commission of a
      Dangerous Felony to wit: ____________________ (Insert in said space,
      one of the above named offenses.)

              If you have reasonable doubt of the defendant‘s guilt of this offense,
      it is your duty to acquit him, and your verdict should be,


                                          - 25 -
             ―We the Jury, find the defendant [Antonio Henderson or Marvin
       Dickerson] not guilty.‖

              You will write your verdict on the outside of the jacket and sign one
       of your names to the verdict as foreperson.

       ―[T]he trial court has a duty to provide a ‗complete charge of the law applicable to
the facts of the case.‘‖ State v. James, 315 S.W.3d 440, 446 (Tenn. 2010) (quoting State
v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986)). However, jury instructions must be
reviewed in their entirety, and phrases may not be examined in isolation. State v.
Rimmer, 250 S.W.3d 12, 31 (Tenn. 2008). ―An instruction should be considered
prejudicially erroneous only if the jury charge, when read as a whole, fails to fairly
submit the legal issues or misleads the jury as to the applicable law.‖ State v. Majors,
318 S.W.3d 850, 864-65 (Tenn. 2008) (quoting State v. Faulkner, 154 S.W.3d 48, 58
(Tenn. 2005)) (internal quotation marks omitted). As noted by our supreme court:

       [J]urors do not sit in solitary isolation booths parsing instructions for subtle
       shades of meaning in the same way that lawyers might. Differences among
       them in interpretation of instructions may be thrashed out in the
       deliberative process, with commonsense understanding of the instructions
       in the light of all that has taken place at the trial likely to prevail over
       technical hairsplitting.

Rimmer, 250 S.W.3d at 31 (quoting State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997)).
To determine whether a defendant is harmed by an ambiguous instruction, ―we must
consider ‗whether the ailing instruction by itself so infected the entire trial that the
resulting conviction violates due process.‘‖ Rimmer, 250 S.W.3d at 31 (quoting Cupp v.
Naughten, 414 U.S. 141, 147 (1973)). To make that determination, the ―significant
question‖ is ―‗whether there is a reasonable likelihood that the jury has applied the
challenged instruction in a way‘ that violates the Constitution.‖ Id. (quoting Estelle v.
McGuire, 502 U.S. 62, 72 (1991)). Whether jury instructions are sufficient is a question
of law, which we review de novo with no presumption of correctness. State v. Clark, 452
S.W.3d 268, 295 (Tenn. 2014).

        In this case, the Defendants correctly note that the jury instructions as to the
elements of Count 6 did not define the applicable predicate dangerous felony. However,
in its instructions as to the verdict form, the trial court clearly stated that the predicate
dangerous felony for Count 6 was attempted second degree murder (or the lesser included
offense of attempted voluntary manslaughter). Further, the instructions for the verdict
form stated that the jury could only consider Count 6 if they had already convicted the
Defendant in Count 2 of attempted second degree murder or the lesser included offense
of attempted voluntary manslaughter. As such, when viewed in their entirety, the
                                            - 26 -
applicable predicate felony was clearly identified for the jury, and the instructions did not
mislead the jury as to applicable law. See Majors, 318 S.W.3d 864-65.

       Turning to the instructions for the verdict form in Count 6, the Defendants also
correctly note that those instructions said,

              If you find the defendant guilty of Criminal Attempt Murder Second
       Degree or Criminal Attempt Voluntary Manslaughter, beyond a reasonable
       doubt, your verdict should be,

             ―We, the Jury, find the defendant [Marvin Dickerson or Antonio
       Henderson] guilty of Employing a Firearm During the Commission of a
       Dangerous Felony to wit: [Insert the applicable predicate felony.]‖

However, we conclude that the instructions for the verdict form for Count 6, when read in
context of the entire jury instructions, fairly submitted the legal issues and did not
mislead the jury as to the applicable law. See id. In the sentence immediately preceding
the above quoted instruction, the instructions clearly stated that, after the jury had
convicted the Defendants of one of the applicable predicate offenses in Count 2, the jury
then ―had to determine whether or not the [Defendants are] guilty of Employing a
Firearm During the Commission of a Dangerous [Felony].‖ Our courts acknowledge that
jurors do not read instructions in the same way a lawyer might but instead apply
―commonsense understanding of the instructions[.]‖ Rimmer, 250 S.W.3d at 31. The
instructions for the verdict form in Count 6 told the jury that they had to determine the
Defendants‘ guilt of the offense of employing a firearm during the commission of a
dangerous felony, and the elements of that offense were set out earlier in the instructions.
Reading the instructions for the verdict form in conjunction with the instructions defining
the elements of the offense in Count 6, we believe that the jury was aware it had to
consider the elements of Count 6 and that the wording of the verdict form instructions did
not ―by itself so infect[] the entire trial that the resulting conviction violates due process.‖
See Rimmer, 250 S.W.3d at 31 (internal quotation marks omitted). The Defendants are
not entitled to relief on this issue.

       Although we conclude that the jury instructions for Count 6 did not result in a
denial of due process in this case, we acknowledge that the language used by the trial
court was not particularly helpful. As such, we encourage trial courts to use the
Tennessee pattern instructions, which for this offense provided an instruction to the trial
court to ―(list an offense in T.C.A. § 39-17-1324(i)(1) – see Comment Two).‖ 7 Tenn.
Prac. Pattern Jury Instr. T.P.I. Crim.-36.06(c).



                                             - 27 -
                        State’s Objection in Closing Arguments

       Defendant Henderson argues that the trial court erred when it sustained the State‘s
objection to Defendant Henderson‘s closing argument that the evidence did not support a
conviction of especially aggravated robbery because Mr. Reed‘s serious bodily injury
occurred after his property had been taken. Defendant Henderson asserts that his
argument was proper because the jury could have acquitted him of especially aggravated
robbery due to the fact that Mr. Reed‘s injuries were sustained after the taking was
complete. The State argues that the trial court properly advised the jury to follow the jury
instructions and that it did not abuse its discretion in advising Defendant Henderson‘s
counsel to move forward with the closing argument.

      The following exchange occurred during Defendant Henderson‘s closing
argument:

       [DEFENDANT HENDERSON‘S COUNSEL:] . . . If you conclude that
       something was taken [from Mr. Reed], well then, surely that happened, the
       taking happened before [Mr. Reed] tussled and fought with one or both of
       [the Defendants]. If anything was taken from [Mr. Reed], that happened
       before [Mr. Reed] was shot. If anything was taken from [Mr. Reed] that
       happened before [Mr. Reed] was injured by the gunshots. And so if there
       was a robbery, if something was taken, [Mr. Reed] wasn‘t injured, there‘s
       not serious bodily injury that occurred during the course of an aggravated
       robbery.

       [THE STATE]: You Honor, may we approach?

       THE COURT: Yes.

During the subsequent bench conference, the State argued that Defendant Henderson‘s
argument was a mischaracterization of the law. Defendant Henderson‘s counsel argued
that State v. Swift, 308 S.W.3d 827 (Tenn. 2010), stood for the proposition that serious
bodily injury had to be contemporaneous to or precede the taking in order to constitute
especially aggravated robbery. The trial court stated, ―Well, I think the case law is clear
in this situation it is especially aggravated robbery.‖ The trial court then told Defendant
Henderson‘s counsel to ―stop that line of argument.‖ Before resuming closing
arguments, the trial court told the jury, ―Ladies and gentlemen, the law is set out in the
jury charge and you are to follow that.‖

       Tennessee courts have long recognized that closing arguments are ―a valuable
privilege that should not be unduly restricted.‖ Terry v. State, 46 S.W.3d 147, 156 (Tenn.
2001); see also State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978); Smith v. State, 527
                                           - 28 -
S.W.2d 737, 739 (Tenn. 1975). The trial court has significant discretion in controlling
closing arguments, and the trial court‘s ruling will only be reversed upon a showing of
abuse of discretion. Terry, 46 S.W.3d at 156.

        ―It is settled law in this state that ‗the courts are the proper source from which [the
jury is] to get the law.‘‖ State v. David Ivy, No. W2003-00786-CCA-R3-DD, 2004 WL
3021146, at *20 (Tenn. Crim. App. Dec. 30, 2004) (quoting Dale v. State, 18 Tenn. 551,
555 (1837)), aff‘d, 188 S.W.3d 132, 158-59 (Tenn. 2006). The trial court, not counsel,
instructs and advises the jury as to matters of law. Id. In this case, Defendant
Henderson‘s argument to the jury that the serious bodily injury suffered by the victim
must precede or be contemporaneous with the taking of property was not a correct
statement of the holding in Swift. Based on our review of the record, the trial court did
not abuse its discretion when it told Defendant Henderson‘s counsel to ―stop that line of
argument‖ and instructed the jury that they were to follow the law as set out in the jury
instructions. Defendant Henderson is not entitled to relief on this issue.

                             Partial Consecutive Sentencing

        Defendant Henderson argues that the trial court erred when it ordered him to serve
partially consecutive sentences. He contends that the trial court‘s decision was based
solely on a finding that Defendant Henderson was a dangerous offender but that the trial
court failed to address the factors set forth in State v. Wilkerson, 905 S.W.2d 922 (Tenn.
1995). The State argues that the trial court considered the Wilkerson factors and that it
did not abuse its discretion in ordering partially consecutive sentences.

       At the sentencing hearing, Defendant Henderson submitted eleven letters from
members of his family and his acquaintances detailing his helpful nature and his
importance to the people close to him. Defendant Henderson also submitted a certificate
of completion for a domestic violence program and a checklist showing his progress in
the ―moral recognition therapy‖ program, both of which he attended while in jail.
Additionally, Defendant Henderson read an allocution into the record, wherein he
apologized to the victims and his family. The trial court found that two enhancement
factors applied to Defendant Henderson and gave Defendant Henderson ―some credit‖ for
the classes he completed while incarcerated.

       The trial court imposed the following sentences for Defendant Henderson:

Count                 Conviction                       Victim                 Sentence

   1       Especially Aggravated Robbery             Shabaka Reed              24 years



                                            - 29 -
   2            Attempted Second Degree                     Shabaka Reed                 10 years
                        Murder

   3        Attempted Aggravated Robbery                    Nick Cannon                   4 years

   4        Attempted Aggravated Robbery                   Tiffany Fleming                4 years

   5                Aggravated Assault                     Tiffany Fleming          4 years (merged
                                                                                     with Count 4)

   6        Employing a Firearm During the                      N/A                       7 years
             Commission of or Attempt to
             Commit a Dangerous Felony



The trial court ordered that the sentences in Counts 1, 2, and 6 would run consecutively to
each other and concurrently with the remaining counts, for an effective forty-one-year
sentence. The trial court noted that Count 6 was a mandatory consecutive sentence to
Count 2. See Tenn. Code Ann. § 39-17-1324(e)(1) (2014). However, there are no oral or
written findings indicating the basis for which the trial court ordered Defendant
Henderson‘s sentence in Count 1 to run consecutively to his sentences in Counts 2 and 6.
Further, there is no mention of the factors set forth in State v. Wilkerson with regard to
Defendant Henderson.5

       When the record establishes that the trial court imposed a sentence within the
appropriate range that reflects a ―proper application of the purposes and principles of our
Sentencing Act,‖ this court reviews the trial court‘s sentencing decision under an abuse of
discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682,
707 (Tenn. 2012). A finding of abuse of discretion ―‗reflects that the trial court‘s logic
and reasoning was improper when viewed in light of the factual circumstances and
relevant legal principles involved in a particular case.‘‖ State v. Shaffer, 45 S.W.3d 553,
555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)). ―[A] trial

        5
          The trial court sentenced Defendant Dickerson immediately before it imposed a sentence for
Defendant Henderson. When ordering partially consecutive sentences for Defendant Dickerson‘s
convictions, the trial court found that Defendant Dickerson was a dangerous offender whose behavior
indicated little or no regard to human life and had no hesitation about committing a crime in which the
risk to human life was high. Additionally, the trial court found that the circumstances of the offense were
aggravated, that confinement was necessary to an extended period of time to protect society from
Defendant Dickerson‘s ―unwillingness to lead a productive life‖ and that the aggregate length of the
sentences was reasonably related to the offenses for which Defendant Dickerson was convicted. The trial
court entered written findings of the same.
                                                  - 30 -
court‘s misapplication of an enhancement or mitigating factor does not remove the
presumption of reasonableness from its sentencing determination.‖ Id. at 709. Moreover,
under those circumstances, this court may not disturb the sentence even if it had preferred
a different result. See State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008).

        In determining the proper sentence, the trial court must consider: (1) the evidence,
if any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the criminal conduct involved; (5) evidence and information offered by
the parties on the mitigating and enhancement factors set out in Tennessee Code
Annotated sections 40-35-113 and -114; (6) any statistical information provided by the
administrative office of the courts as to sentencing practices for similar offenses in
Tennessee; and (7) any statement the defendant made in the defendant‘s own behalf
about sentencing. See Tenn. Code Ann. § 40-35-210; State v. Taylor, 63 S.W.3d 400,
411 (Tenn. Crim. App. 2001). The trial court must also consider the potential or lack of
potential for rehabilitation or treatment of the defendant in determining the sentence
alternative or length of a term to be imposed. Tenn. Code Ann. § 40-35-103 (2010).

        To facilitate meaningful appellate review, the trial court must state on the record
the factors it considered and the reasons for imposing the sentence chosen. Tenn. Code
Ann. § 40-35-210(e) (2010); Bise, 380 S.W.3d at 706. However, ―[m]ere inadequacy in
the articulation of the reasons for imposing a particular sentence . . . should not negate the
presumption [of reasonableness].‖ Bise, 380 S.W.3d at 705-06. The party challenging
the sentence on appeal bears the burden of establishing that the sentence was improper.
Tenn. Code Ann. § 40-35-401(e) (2010), Sentencing Comm‘n Cmts.

       The Tennessee Supreme Court has expanded the standard of review in Bise to trial
courts‘ decisions regarding consecutive sentencing. State v. Pollard, 432 S.W.3d 851,
859 (Tenn. 2013). ―So long as a trial court properly articulates reasons for ordering
consecutive sentences, thereby providing a basis for meaningful appellate review, the
sentences will be presumed reasonable and, absent an abuse of discretion, upheld on
appeal.‖ Id. at 862 (citing Tenn. R. Crim. P. 32(c)(1); Bise, 380 S.W.3d at 705).
However, when the trial court ―fails to provide adequate reasons on the record for
imposing consecutive sentences, the appellate court should neither presume that the
consecutive sentences are reasonable nor defer to the trial court‘s exercise of its
discretionary authority.‖ Pollard, 432 S.W.3d at 863-64. In such situations, this court
may ―(1) conduct a de novo review to determine whether there is an adequate basis for
imposing consecutive sentences; or (2) remand for the trial court to consider the requisite
factors in determining whether to impose consecutive sentences.‖ Id. at 864 (citing Bise,
380 S.W.3d at 705 & n.41).


                                            - 31 -
        Tennessee Code Annotated section 40-35-115 sets forth seven different situations
in which a trial court may impose consecutive sentencing, including when ―[t]he
defendant is a dangerous offender whose behavior indicates little or no regard for human
life, and no hesitation about committing a crime in which the risk to human life is
high[.]‖ Tenn. Code Ann. § 40-35-115(b)(4); see Wilkerson, 905 S.W.2d at 936. Before
a trial court may impose consecutive sentences on the basis that a defendant is a
dangerous offender, the trial court must also find ―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.‖
Wilkerson, 905 S.W.2d at 939. In order to limit the use of the ―dangerous offender‖
category to cases where it is warranted, our supreme court has stated that the trial court
must make specific findings about ―particular facts‖ which show that the Wilkerson
factors apply to the defendant. State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999).

        In this case, the trial court did not state on the record the basis for which it
imposed partially consecutive sentences on Defendant Henderson. Further, even if we
were to assume that the trial court imposed partially consecutive sentences on the basis
that Defendant Henderson was ―a dangerous offender whose behavior indicates little or
no regard for human life, and no hesitation about committing a crime in which the risk to
human life is high[,]‖ see Tenn. Code Ann. § 40-35-115(b)(4), the trial court made no
mention of the requisite factors set forth in Wilkerson when imposing Defendant
Henderson‘s sentence. Moreover, there is no indication in the written sentencing findings
as to which factors the trial court relied upon when imposing Defendant Henderson‘s
partially consecutive sentences. While the trial court did note that ―the same enhancing
factors and mitigating factors pretty much apply to [Defendant] Henderson as apply to
[Defendant] Dickerson[,]‖ the trial court did not apply its findings underlying Defendant
Dickerson‘s partially consecutive sentences to Defendant Henderson. In short, the trial
court made no factual findings regarding Defendant Henderson‘s partially consecutive
sentences on which we can base a review. Therefore, we may apply a de novo standard
of review or remand the case to the trial court to reconsider sentencing. See Pollard, 432
S.W.3d at 864.

       In cases where the trial court fails to place on the record any reason for a particular
sentence, the more appropriate action is to remand the case to the trial court for
reconsideration. Bise, 380 S.W.3d at 705 & n.41; see also Pollard, 432 S.W.3d at 864
(remanding the case is the better course for consideration of fact-intensive inquiry about
Wilkerson factors). Therefore, we reverse the trial court‘s order that Defendant
Henderson‘s sentence in Count 1 runs consecutively to his sentences in Counts 2 and 6
and remand the case for reconsideration on the issue of consecutive sentences. However,
nothing in this opinion shall be interpreted to reverse the trial court‘s imposition of
consecutive sentences for Counts 2 and 6. See Tenn. Code Ann. § 39-17-1324(e)(1)

                                            - 32 -
(stating that a sentence for unlawful employment of a firearm during the commission or
attempt to commit a dangerous felony must be served consecutive to the sentence for the
underlying dangerous felony.)

                                  III. CONCLUSION

       For the aforementioned reasons, the trial court‘s order that Defendant Henderson
serve his sentence in Count 1 consecutively to his sentences in Counts 2 and 6 is reversed
and remanded for reconsideration of the requisite factors for imposing consecutive
sentences. The judgments of the trial court are affirmed in all other respects.


                                                   _________________________________
                                                   ROBERT L. HOLLOWAY, JR., JUDGE




                                          - 33 -
