       IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE
                                   September 4, 2002 Session

                 STATE OF TENNESSEE v. TAKEITA M. LOCKE
                  Appeal by permission from the Court of Criminal Appeals,
                               Criminal Court of Knox County
                         No. 67739B Hon. Richard B. Baumgardner



                    No. E2000-00923-SC-R11-CD - Filed November 1, 2002


The defendant, Takeita M. Locke, was tried and convicted in the Knox County Criminal Court of
felony murder and especially aggravated robbery in the death of Chuck Newman. The Court of
Criminal Appeals unanimously affirmed both convictions. We granted this appeal to determine if
the trial court committed reversible error by failing to instruct the jury on certain lesser-included
offenses of felony murder, namely: second degree murder, reckless homicide, and criminally
negligent homicide. Additionally, with respect to her conviction for especially aggravated robbery,
the defendant maintains that the trial court committed reversible error by failing to instruct the jury
on the lesser-included offenses of facilitation of a felony (especially aggravated robbery), aggravated
robbery, and robbery. After examining the facts and the law relevant to these issues, we hold that
the trial court's failure to instruct the jury on the lesser-included offenses of second degree murder,
reckless homicide, and criminally negligent homicide was reversible error. We also hold that the
trial court's failure to instruct on the lesser-included offenses of facilitation of especially aggravated
robbery, aggravated robbery, and robbery was erroneous, but such errors were harmless beyond a
reasonable doubt.

               Tenn. R. App. P. 11 Application for Permission to Appeal;
  Judgment of the Court of Criminal Appeals Affirmed in Part and Reversed in Part and
                   Remanded to the Criminal Court of Knox County.

WILLIAM M. BARKER, J., delivered the opinion of the court, the panel of which consisted of FRANK
F. DROWOTA , III, C.J., and E. RILEY ANDERSON, ADOLPHO A. BIRCH, JR., and JANICE M. HOLDER,
JJ.

Wade V. Davies (on appeal) and Gerald Lee Gulley, Jr. (at trial), Knoxville, Tennessee for the
appellant, Takeita M. Locke.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and G. Scott Green, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION
                                                        FACTS

      In the early morning hours of October 17, 1998, the defendant, Takeita M. Locke, was riding
in a car with her boyfriend, Jerry "Bam" Graves, Adam Faw (the driver), and Christina Martin.
During the ride, the members of the group decided to rob someone and proceeded to the
Montgomery Village Housing Project in Knoxville, Tennessee. Upon arriving in the parking lot, at
around 5:00 a.m., Graves spotted Chuck Newman walking toward one of the apartments. Mr.
Newman knocked on the door of Karen Verklas' apartment and proceeded inside when she opened
the door. Before Ms. Verklas could close the door, Graves barged inside and demanded Mr.
Newman's money. When Newman refused, a struggle ensued.

        Ms. Verklas had been inside with her boyfriend, Roberts Richards, and both watched as
Graves forced Mr. Newman onto the couch and began beating him with a gun around the head. They
also both observed, during the struggle, the defendant enter the apartment and attempt to pry Mr.
Newman's hand open while he was being pistol-whipped by Graves. After Ms. Verklas and Mr.
Richards fled the apartment to summon help, Mr. Newman was fatally stabbed with a kitchen knife
by either Graves or the defendant.

        Investigator Samuel Brown of the Knoxville Police Department responded to the incident
and interviewed both Ms. Verklas and Mr. Richards. Investigator Brown determined that the
nicknames used by the suspects were "Sherry or Cherry" and "Bam." Subsequently, Investigator
Brown spoke to other personnel at the Knoxville Police Department who informed him that a young
woman named Takeita Bell1 may use the nickname "Cherry." As a result, Investigator Brown had
Locke arrested and taken into juvenile custody.2 On October 18, 1998 and the following day,
Investigator Brown interviewed the defendant at the Juvenile Detention Facility after informing her
of her rights. She was later charged in Juvenile Court which issued an order on December 9, 1998
transferring her to Knox County Criminal Court for prosecution as an adult. Subsequently, a
presentment charged the defendant and Graves3 with the offenses of felony murder and especially
aggravated robbery.

        The trial began on October 13, 1999, with the State calling Dr. Sandra Elkins, who is
employed as the Knox County Medical Examiner and Director of Autopsy Services at the University
of Tennessee Medical Center. Dr. Elkins performed the autopsy on Mr. Newman and testified that
the stab wound was approximately 3.55 inches deep and was the cause of death. Dr. Elkins also



         1
              Takeita Bell and Takeita Locke are the same person. The defendant's legal name is "Locke," but she
sometimes uses her mother's last nam e "B ell." Ad ditiona lly, consisten t with the presentment, the defendant's first name
will be sp elled " Takeita," rather than "T akieta."

         2 At the time of the offenses, Locke was seventeen years old.

         3
             Though the defendant and Graves were charged with the same crimes, they were tried separately. Any claims
for relief b y Jerry G raves are no t currently before the C ourt.

                                                            -2-
noted that the curved lacerations on Mr. Newman's skull were consistent with someone who had
been struck in the head with an object such as the butt of a pistol.

         The State then called several witnesses who linked the defendant to the murder of Mr.
Newman. Both Ms. Verklas and Mr. Richards testified that Locke entered the apartment during the
struggle and attempted to pry open the victim's hand while he was being beaten with the gun by
Graves. Mr. Richards also stated that the defendant asked Graves, "How much does he have on
him?" as she was attempting to pry open the victim's hand. Both Ms. Verklas and Mr. Richards also
testified that they witnessed Graves and Locke leave the apartment together. Additionally, Adam
Faw testified that after providing Graves with a gun, he watched from the car as Locke stood look-
out at a garbage dumpster and then ran inside the apartment after the commotion began. The State
then called Investigator Brown and Officer Lawrence Libscombe to detail the conflicting statements
that had been offered by the defendant concerning the robbery and homicide of Chuck Newman.

        For the defense, Melvina Terry testified that she was a resident of Montgomery Village and
that she was outside in the parking lot when Mr. Newman was beaten and stabbed. Ms. Terry
claimed that she witnessed Mr. Newman walk inside the Verklas apartment followed by two males.
Ms. Terry further claimed that she and the defendant were standing outside talking while the attack
occurred. Ms. Terry testified that after hearing some yelling and commotion coming from the
Verklas apartment, Locke ran over to the apartment and came out five minutes later shaking. After
this, Ms. Terry claimed that Graves emerged from the apartment with the gun and forced Locke to
get in the car.

         The defendant's mother, Mary Ann Bell, also testified on the defendant's behalf. Ms. Bell
testified that Graves had routinely beaten Locke during their relationship; had stabbed Locke with
a pair of scissors; and had once shot a gun at Ms. Bell herself. On cross-examination, Ms. Bell
admitted that Ms. Terry was a personal friend of hers and that Ms. Terry routinely smoked crack
cocaine. Lastly, the defendant took the stand in her own defense. She claimed that on the day in
question, she sat on some steps with Ms. Terry while Graves and Faw committed the robbery and
murder of Chuck Newman. Locke further testified that she did not enter the apartment at any time.

        At the conclusion of the proof, the trial court instructed the jury on the offenses of felony
murder and facilitation of felony murder. Additionally, the trial court instructed the jury on
especially aggravated robbery. Following deliberation, the jury returned guilty verdicts on both
felony murder and especially aggravated robbery. On appeal, the Court of Criminal Appeals
unanimously affirmed both convictions and concluded that the trial court's failure to charge the
lesser-included offenses of second degree murder, reckless homicide, criminally negligent homicide,
aggravated robbery, robbery, and facilitation of especially aggravated robbery was not reversible
error.

        For the reasons stated herein, we reverse the decision of the Court of Criminal Appeals in
part and affirm it in part and conclude that it was reversible error not to instruct the jury on the
lesser-included offenses of second degree murder, reckless homicide, and criminally negligent


                                                -3-
homicide. Additionally, we hold that the trial court's failure to instruct the jury on aggravated
robbery, robbery, and facilitation of especially aggravated robbery on the charge of especially
aggravated robbery was harmless error in this case. Accordingly, defendant Locke's case is remanded
to the Criminal Court of Knox County for a new trial on the felony murder charge. The defendant's
especially aggravated robbery conviction is affirmed.

                                                        ANALYSIS

        As we recently stated in State v. Allen, 69 S.W.3d 181, 187 (Tenn. 2002), when courts apply
the lesser-included offense doctrine, "three questions arise: 1) whether an offense is a lesser-included
offense; 2) whether the evidence supports a lesser-included offense instruction; and 3) whether an
instructional error is harmless." Locke asserts that the trial court erred because it failed to instruct
the jury on a variety of lesser-included offenses to the charges of first degree felony murder and
especially aggravated robbery. Accordingly, an examination of the three lesser-included offense
questions is warranted.

                         LESSER-INCLUDED OFFENSES OF FELONY MURDER

                                       A. Lesser -Included Offenses

        At trial, the presiding judge only instructed the jury on felony murder and facilitation of
felony murder on count one of the presentment. It is a well-settled principal that "a trial court must
instruct the jury on all lesser-included offenses if the evidence introduced at trial is legally sufficient
to support a conviction for the lesser offense." State v . Burns, 6 S.W.3d 453, 464 (Tenn. 1999)
(quoting State v. Langford, 994 S.W.2d 126, 128 (Tenn. 1999)).

         Under the test we announced in Burns,4 defendant Locke maintains that the trial court erred
in failing to charge second degree murder, reckless homicide, and criminally negligent homicide on
the charge of felony murder. We agree. Recently, in State v. Ely, 48 S.W.3d 710, 721-22 (Tenn.
2002), we held that "because the mental states required for [second degree murder, reckless
homicide, and criminally negligent homicide] differ only in terms of seriousness and punishment,
the offenses of second degree murder, reckless homicide, and criminally negligent homicide are
lesser-included offenses of felony murder under part (b) of the Burns test." We reiterate that holding
today.

         4
             Under the Burns analysis, an offense is considered a lesser-included if: (a) all of its statutory elements are
included within the statutory elements of the o ffense charged ; or (b) it fails to meet the definition in p art (a) o nly in the
respe ct that it con tains a statutory elem ent or e lements establishing (1) a different mental state indicating a lesser kind
of culpability; and/or (2) a less serious harm or risk of harm to the same person, property or public interest; or
(c) it consists o f (1) facilitatio n of the o ffense charged or of an offense that o therwise meets the definition of lesser-
included offense in part (a) or (b); or (2) an attem pt to com mit the offense charged or an offense that otherw ise meets
the definition of lesser-included offense in part (a) or (b); or (3) solicitation to com mit the offense charged or an offense
that othe rwise meets the d efinition o f lesser-included offense in part (a) or (b ). Id. at 467 .



                                                              -4-
                       B. Evidence Supporting Lesser-Included Offense Instructions

         Having determined that second degree murder, reckless homicide, and criminally negligent
homicide are lesser-included offenses, the next inquiry is whether the evidence produced at trial
warranted instructions on these offenses. The test for determining whether an instruction on a lesser-
included offense should be given in a case was also articulated in Burns:
                 First, the trial court must determine whether any evidence exists that
                 reasonable minds could accept as to the lesser-included offense. In
                 making this determination, the trial court must view the evidence
                 liberally in the light most favorable to the existence of the lesser-
                 included offense without making any judgments on the credibility of
                 such evidence. Second, the trial court must determine if the evidence,
                 viewed in this light, is legally sufficient to support a conviction for
                 the lesser-included offense.
6 S.W.3d at 469. In making this determination, reviewing courts must be mindful that simply
because the evidence is sufficient to support a conviction for the greater offense does not excuse the
failure to instruct on a valid lesser-included offense. See Allen, 69 S.W.3d at 187 (citing State v.
Bowles, 52 S.W.3d 69, 75 (Tenn. 2001)). Moreover, "[a] defendant need not demonstrate a basis
for acquittal on the greater offense to be entitled to an instruction on the lesser offense." Id.

        Our review of the record in this case leads us to the conclusion that there was sufficient
evidence from which a reasonable jury could have found Locke guilty of criminally negligent
homicide, reckless homicide, or second degree murder. As previously summarized, the record in this
case shows that Locke and Graves were inside the Verklas apartment at the time that Chuck Newman
was robbed and fatally stabbed. Though the State had several witnesses that placed the defendant
inside the apartment, there was no witness who testified as to all the events inside the apartment that
morning. Locke, on the other hand, testified that she did not enter the apartment. Her testimony was
partially corroborated by a witness, Ms. Terry, who claimed that Locke entered the apartment after
all the commotion had taken place and emerged from the apartment "shaking." The fact that no
witness claimed to be inside the apartment when Mr. Newman was stabbed enabled the State to
argue to the jury that perhaps it was Locke herself who actually stabbed Mr. Newman during the
struggle.5

       Accordingly, if the jury believed that the defendant was present, it may have reasonably
concluded that she either stabbed Mr. Newman or assisted Graves as he stabbed Mr. Newman.


         5
            In its brief, the State claims that this case is distinguishable from Ely because "the State offered no proof that
the defendant herself beat or stabbed the victim." Brief of Appellee at 13. However, in closing argument, the prosecutor
argued: "If Bam G raves has a pistol in his hand, which everybody says he did, including [Locke], and is pistol-whipping
Chuck Newman, what re ason does he have to go get a knife, if he is go ing to finish him off? Converse ly, if there is
someone there who is trying to get the money and just isn't having a whole lot of success while that pistol rep eated ly
strikes him in the head and face, they are going to be the ones in position to walk into the kitchen and come back and
do the work." [R . 271 ]. Very clearly, this d emo nstrates that the State was willing to let the jury choose between finding
Locke guilty under either a principa l or a criminal resp onsibility theory.

                                                             -5-
Additionally, the jury may have concluded that Locke assisted Graves as he repeatedly struck Mr.
Newman in the head with the gun. Either participating in stabbing someone in the chest with a knife
or participating in beating someone in the head with a gun is conduct "reasonably certain to cause
[death]." Tenn. Code Ann. § 39-13-302(b) (1997). Consequently, if the jury believed that Locke
was "aware . . . that [her] conduct [was] reasonably certain to cause [death]," i.e. a knowing killing,
it could have convicted her of second degree murder.

         Likewise, an average person participating in such conduct would be aware of the "substantial
and unjustifiable risk that [death] will occur." Tenn. Code Ann. § 39-11-302(c) (1997). If the jury
believed that the defendant was aware of, but consciously disregarded such a risk, it could have
convicted her of reckless homicide. Similarly, an ordinary person participating in such conduct
"ought to be aware of a substantial and unjustifiable risk [death] will occur." Tenn. Code Ann. § 39-
11-302(d) (1997). If the jury believed that Locke was not aware but should have been aware of this
risk, it could have convicted her of criminally negligent homicide. Thus, a conviction for any of
these offenses would have been supported by the evidence offered at trial, and failure to instruct on
these offenses was error.

                                     C. Harmless Error Analysis

       Having determined that it was error for the trial court to fail to instruct on these lesser-
included offenses, we must now resolve whether such error was harmless or prejudicial. The Court
of Criminal Appeals held that any error in this case "was harmless beyond a reasonable doubt,
because it more probably than not did not affect the judgment to the prejudice of the defendant."
Opinion at 14 (emphasis added). Both the defendant and the State agree that the Court of Criminal
Appeals articulated an incorrect harmless error standard. Nevertheless, the State contends that the
Court of Criminal Appeals did correctly apply the proper standard to the facts and evidence in this
case. We disagree.

        Although there was some confusion concerning the source of the right to receive lesser-
included offense instructions following State v. Williams, 977 S.W.2d 101 (Tenn. 1998), we clearly
iterated in Ely that this right was constitutional in nature as part of the right to trial by jury and "is
violated when the jury is not permitted to consider all offenses supported by the evidence." Ely, 48
S.W.3d at 727 (emphasis in original). That the source of this right is constitutional in nature is
meaningful; "the State bears the burden of showing that a deprivation of this right is harmless beyond
a reasonable doubt." Id. at 725 (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17
L.Ed. 705 (1967)).

        We have previously explained that "nonconstitutional errors will not result in reversal unless
the error affirmatively appears to have affected the result of the trial on the merits, or considering
the whole record, the error involves a substantial right which more probably than not affected the
judgment or would result in prejudice to the judicial process." State v. Harris, 989 S.W.2d 307, 315
(Tenn. 1999) (citing Tenn. R. Crim. P. 52(a)) (emphasis in original). By including the words "more
probably than not," the Court of Criminal Appeals lessened the constitutional harmless error standard


                                                   -6-
and co-mingled it with the non-constitutional harmless error standard. Various courts, including the
United States Supreme Court, have noted the significant difference between the two standards and
that cases may be decided differently based upon which standard is applied. Brecht v. Abrahamson,
507 U.S. 619, 113 S.Ct. 1710, 123 L. Ed. 2d 353 (1993).

         The diluted standard used by the Court of Criminal Appeals in this case was a reversion to
the standard we articulated in State v. Swindle, 30 S.W.3d 289 (Tenn. 2000). In Swindle, we held
that under lesser-included offense harmless error analysis, "[r]eversal is required if the error
affirmatively affected the result of the trial, or more probably than not affected the judgment to the
defendant's prejudice." Id. at 293. Although we noted in Ely that Swindle did not reference the
Chapman standard for constitutional harmless error analysis, we did not expressly overrule Swindle
at that time. Ely, 48 S.W3d at 726. However, the standard used in Swindle does not comport with
the constitutional harmless error standard articulated in Ely. Therefore, to the extent that Swindle
is inconsistent with Ely and this decision, it is overruled. Furthermore, in spite of the State's
argument, we cannot agree that the Court of Criminal Appeals applied the proper harmless error
standard in this case. Because the intermediate court articulated an incorrect standard, we must
assume that it applied the same incorrect standard in its analysis.

        Nevertheless, the State additionally contends that the trial court's failure to instruct on these
lesser-included offenses was harmless beyond a reasonable doubt because the jury rejected the lesser-
included offense of facilitation of felony murder and convicted Locke of the highest offense
instructed on: felony murder. In this argument, the State relies upon the reasoning of Williams. In
Williams, we held that a trial court's failure to instruct the jury on voluntary manslaughter was
harmless beyond a reasonable doubt because the jury had considered both first and second degree
murder and had found the defendant guilty of first degree murder. We held that "the jury's verdict
of guilt on the greater offense of first degree murder and its disinclination to consider the lesser-
included offense of second degree murder clearly demonstrates that it certainly would not have
returned a verdict on voluntary manslaughter." 977 S.W.2d at 106 (citing State v. Boyd, 797 S.W.2d
589, 593 (Tenn. 1990)).

       Applying Williams in this case, the determination of whether the trial court's error was
harmless necessarily turns on the relationship between facilitation and the other lesser-included
homicide offenses. In determining this relationship, we are mindful that in Williams we stated that
"by finding the defendant guilty of the highest offense to the exclusion of the immediately lesser
offense, second degree murder, the jury necessarily rejected all other lesser offenses, including
voluntary manslaughter." 977 S.W.2d at 106 (emphasis added). Facilitation, however, unlike lesser
degrees of homicide is not an immediately lesser offense of felony murder under part (b) of the
Burns test. In fact, facilitation is a separate and distinct theory of liability from that of a principal
offender or someone who is criminally responsible for the conduct of another. The Tennessee Code
defines facilitation as follows:
                A person is criminally responsible for the facilitation of a felony, if,
                knowing that another intends to commit a specific felony, but without
                the intent required for criminal responsibility under [Tennessee Code


                                                  -7-
             Annotated] § 39-11-402(2), the person knowingly furnishes
             substantial assistance in the commission of a felony.
Tenn. Code Ann. § 39-11-403(a) (1997) (emphasis added).

         There are several reasons why the jury may have rejected facilitation in this case. A
facilitation instruction addresses Locke's role in the crime as a facilitator rather than a party to the
offense. First, the jury could have found that the defendant's intent was such as to cause her to be
criminally responsible for the death of Chuck Newman. Additionally, based on the evidence, the
jury could have concluded that Locke was principally responsible for the death of Mr. Newman to
some degree. Regardless, the rejection of facilitation did not necessarily mean that the jury would
have rejected all lesser degrees of homicide; it could merely have meant that the jury found the
defendant played a role in the crime that was not that of a facilitator. However, upon finding that
facilitation was inapplicable, the jury was left with only two options, it could acquit Locke outright
or find her guilty of first degree felony murder. We have previously observed that when a jury is
forced into an "all or nothing" decision, the dilemma is likely going to be "resolved against the
defendant, who is clearly guilty of 'something.'" Burns, 6 S.W.3d at 466.

        Mindful of these principals, we are unable to conclude that the trial court's failure to instruct
the jury on second degree murder, reckless homicide, and criminally negligent homicide did not
affect the trial beyond a reasonable doubt. Williams is not controlling here given the different
mental state required for facilitation. In Allen, we held that when a reviewing court is determining
whether a lesser-included instruction error was harmless beyond a reasonable doubt, the "reviewing
court should conduct a thorough examination of the record, including the evidence presented at trial,
the defendant's theory of the defense, and the verdict returned by the jury. 69 S.W. 3d at 191. Given
the conflicting evidence in this case involving Locke's intent and actions on the morning of October
17, 1998, we conclude that the jury could have convicted the defendant of second degree murder,
reckless homicide, or criminally negligent homicide. The evidence in this case would have
supported any of those verdicts. Because we cannot conclude beyond a reasonable doubt that the
failure of the trial court to instruct on these lesser-included offenses did not affect the outcome of
the defendant's trial, we hold that the error was not harmless.

        LESSER-INCLUDED OFFENSES OF ESPECIALLY AGGRAVATED ROBBERY

                                     A. Lesser-Included Offenses

        In addition to felony murder, the State charged Locke with especially aggravated robbery.
At the conclusion of the proof, the trial court instructed the jury only on the offense of especially
aggravated robbery. The defendant contends that the trial court committed reversible error by failing
to instruct the jury on the offenses of aggravated robbery, robbery, and facilitation of especially
aggravated robbery. The State counters that any error on the part of the trial court was "harmless
beyond a reasonable doubt because the proof was uncontroverted and overwhelming that Graves
used a deadly weapon to inflict serious bodily injury that led to the victim's death." Brief of Appellee
at 15.


                                                  -8-
        Clearly, aggravated robbery and robbery are lesser-included offenses of especially aggravated
robbery under part (a) of the Burns test. Part (a) is satisfied because all of the elements of aggravated
robbery and robbery are elements of especially aggravated robbery. In other words, aggravated
robbery and robbery are lesser-included offenses of especially aggravated robbery because one
cannot commit an especially aggravated robbery without satisfying all the elements of the two lesser
offenses. Likewise, facilitation of especially aggravated robbery is also a lesser-included offense of
especially aggravated robbery under part (c)(1) of the Burns test. Accordingly, we agree with the
defendant that aggravated robbery, robbery, and facilitation of especially aggravated robbery are all
lesser-included offenses of especially aggravated robbery.

                   B. Evidence Supporting Lesser-Included Offense Instructions

        Having determined that aggravated robbery, robbery, and facilitation of especially aggravated
robbery are all lesser-included offenses, we must now decide whether instructions on these offenses
were warranted under the evidence produced at trial. The evidence in this case has already been
summarized. The jury found the evidence sufficient to convict the defendant of especially
aggravated robbery. As we noted in Allen:
                 Evidence sufficient to warrant an instruction on the greater offense
                 also will support an instruction on a lesser offense under part (a) of
                 the Burns test. In proving the greater offense the State necessarily has
                 proven the lesser offense because all of the statutory elements of the
                 lesser offense are included in the greater.
69 S.W.3d at 188 (citing Bowles, 52 S.W.3d at 80). Because reasonable minds may accept identical
evidence as supporting the existence of both the lesser and greater offense, we conclude that in the
instant case, evidence existed such that the jury could reasonably have found aggravated robbery and
robbery. Moreover, the evidence was legally sufficient to support convictions on either of these
offenses. Accordingly, we hold that the trial court erred in failing to instruct the jury on aggravated
robbery and robbery.

        Additionally, based upon the proof at trial, evidence was produced such that facilitation of
especially aggravated robbery could have been instructed to the jury on the charge of especially
aggravated robbery. As we have previously noted, facilitation is established by proof that "knowing
that another person intends to commit a specific felony, but without the intent required for criminal
responsibility under [Tennessee Code Annotated] § 39-11-402(2), the person knowingly furnishes
substantial assistance in the commission of the felony." Tenn. Code Ann. § 39-11-403 (1997).

         To reiterate, the evidence in this case was highly contested. Witnesses for the State testified
that Locke was present during the robbery, but the proof regarding the extent of her participation was
not clear. The defendant countered by claiming she never participated in the event, and her
testimony was partially corroborated by at least one eyewitness. Therefore, the jury would have had
a factual basis, predicated on the evidence, to determine that Locke's role in the crime was that of
a facilitator, rather than a criminally responsible party. Furthermore, the judge instructed the jury
on facilitation of felony murder. Clearly, if the evidence supported instructing the jury on facilitation


                                                  -9-
of the felony murder, then the evidence would support instructing the jury on facilitation of the
underlying felony.

        Accordingly, we find that there was evidence that reasonable minds could accept on the
offense of facilitation of especially aggravated robbery. Moreover, the evidence was legally
sufficient to support such a conviction. We are left with no choice but to conclude that the trial court
erred by failing to instruct the jury on facilitation of especially aggravated robbery.

                                            C. Harmless Error Analysis

        Having decided that the trial court committed error in failing to instruct the jury on
aggravated robbery, robbery, and facilitation of especially aggravated robbery, we must now
determine whether that error is harmless beyond a reasonable doubt. Ely, 48 S.W.3d at 727. Clearly,
there is more than one way for an instructional error to be harmless. We have already discussed
today the Williams situation where a jury rejects an intermediate lesser-included offense as a basis
for harmless error. However, we have also noted that harmless error is not limited to Williams-type
cases, and the proper inquiry is "whether it appears beyond a reasonable doubt that the error did not
affect the outcome of the trial." State v. Allen, 69 S.W.3d 181, 191 (Tenn. 2002).

        The State argues that while it was error for the trial court to fail to instruct the jury on
aggravated robbery and robbery, any such error was harmless beyond a reasonable doubt because the
evidence was "uncontroverted and overwhelming that Graves used a deadly weapon to inflict serious
bodily injury that led to the victim's death." Brief of Appellee at 15. While we are aware that the
jury could conceivably have convicted Locke of aggravated robbery or robbery had it been instructed
on those offenses, we conclude beyond a reasonable doubt that because the evidence was totally
uncontroverted and overwhelming that a deadly weapon was used in the robbery and the victim
suffered serious bodily injury resulting in his death, no reasonable jury would have convicted on the
lesser offenses instead of the charged offense of especially aggravated robbery. Therefore, the trial
court's failure to instruct aggravated robbery and robbery did not affect the outcome of the trial
beyond a reasonable doubt. Accordingly, the trial court's failure to instruct these lesser-included
offenses was harmless.

         Additionally, the defendant maintains that the trial court's failure to instruct the jury on
facilitation of especially aggravated robbery was reversible error under the authority of Allen, 69
S.W.3d at 191-92,6 and State v. Flemming, 19 S.W.3d 195, 200 (Tenn. 2000).7 While it is true that


         6
           In Allen, we held that the failure to charge facilitation of robbery was reversible error on the facts of that case
because we could not conclude beyond a reasonable doubt that the trial court's failure to instruct the o ffense did not affect
the outcome of the trial. 69 S.W .3d at 191 -92.

         7
            In Flemming, the defendant was convicted of especially aggravated robbery by a jury that was not instructed
on either facilitation of especially aggravated robbery or facilitation of aggravated robbery. 19 S.W .3d at 200. Howe ver,
in Flemming, the jury never had the opportunity to examine the defendant's role as a facilitator. This was despite the fact
                                                                                                              (continued...)

                                                            -10-
both Allen and Flemming stand for the proposition that failure to instruct on facilitation of an offense
is reversible error where the evidence supports the instruction, the erroneous failure to instruct on
facilitation is not always reversible. This case is similar to Allen in that there was evidence that
supported the defendant as being merely a facilitator. The key distinction between Allen, Flemming,
and the instant case is that in determining that Locke was criminally responsible for Mr. Newman's
death and rejecting facilitation of felony murder, the jury necessarily rejected the theory that the
defendant was merely a facilitator in this crime.

       As we held in Allen, in determining whether a lesser-included instruction error is harmless
beyond a reasonable doubt, a "reviewing court should conduct a thorough examination of the record,
including the evidence presented at trial, the defendant's theory of the defense, and the verdict
returned by the jury." 69 S.W. 3d at 191 (emphasis added). The fact that the defendant's felony
murder conviction is being overturned by this Court does not change the fact that the jury considered
and rejected Locke's role in the crime as being that of a facilitator. It would be anomalous and
contrary to common sense for this Court to conclude that a jury would have found the defendant
criminally responsible for the felony murder, but only guilty as a facilitator in the underlying felony.
Accordingly, we hold that any error on the part of the trial court to instruct the jury on facilitation
of especially aggravated robbery was harmless because it did not affect the trial beyond a reasonable
doubt.

                                                   CONCLUSION

         We conclude that the trial court erred by failing to instruct the jury on lesser-included
offenses of second degree murder, reckless homicide, and criminally negligent homicide on the
felony murder charge and that the error was not harmless beyond a reasonable doubt. Furthermore,
we conclude that although the trial court erred in failing to charge aggravated robbery, robbery, and
facilitation of especially aggravated robbery on the charge of especially aggravated robbery, such
error was harmless because of the uncontroverted evidence of the victim's death and the use of a
deadly weapon and because the jury rejected the notion that the defendant was a facilitator in this
case by rejecting facilitation of felony murder. Accordingly, Locke's conviction for felony murder
is reversed, and the judgment of the Court of Criminal Appeals is reversed in part and affirmed in
part. We now remand this case to the Criminal Court of Knox County so that the defendant may
receive a new trial on the charge of felony murder. The defendant's especially aggravated robbery
conviction is affirmed. Costs of this appeal are taxed to the State of Tennessee.


                                                                  ______________________________
                                                                  WILLIAM M. BARKER, JUSTICE


         7
            (...continued)
that the evidence in that case supp orted an instruc tion on facilitation o ffenses. Id. Because we could not find the trial
court's error was harmless beyond a reasonable doubt, we affirmed the Court of Criminal Ap peal's decision to reverse
Flemming's co nviction . Id.

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