             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT JACKSON

                          JUNE 1996 SESSION
                                                  FILED
                                                     December 1, 1997

                                                 Cecil Crowson, Jr.
STATE OF TENNESSEE,         )                        Appellate C ourt Clerk
                            )
             Appellee,      )    No. 02C01-9508-CC-00245
                            )
                            )    Gibson County
v.                          )
                            )    Honorable Dick Jerman, Jr., Judge
                            )
TIMOTHY ROBERSON,           )    (First degree murder and especially
                            )     aggravated robbery)
             Appellant.     )


For the Appellant:               For the Appellee:

Mike Mosier and                  Charles W. Burson
J. Colin Morris                  Attorney General of Tennessee
P.O. Box 1623                           and
204 West Baltimore               Michelle L. Lehmann
Jackson, TN 38302-1623           Assistant Attorney General of Tennessee
                                 450 James Robertson Parkway
                                 Nashville, TN 37243-0493

                                 Clayburn L. Peeples
                                 District Attorney General
                                 109 E. First Street
                                 Trenton, TN 38382-1841




OPINION FILED:____________________



AFFIRMED

Joseph M. Tipton
Judge
                                              OPINION



                 The defendant, Timothy Roberson, appeals as of right from a jury verdict

of guilt in the Gibson County Circuit Court for first degree murder and for especially

aggravated robbery, a Class A felony. The trial court sentenced the defendant to life

imprisonment without parole for the first degree murder conviction and to fifteen years

in the custody of the Department of Correction as a Range I, standard offender for the

especially aggravated robbery conviction, to be served consecutively. On appeal, the

defendant contends that:

                 (1) the evidence is insufficient to support his conviction for
                 felony murder;

                 (2) the felony murder statute, T.C.A. § 39-13-202(a)(2), is
                 unconstitutional;

                 (3) the trial court erred by admitting into evidence over his
                 objection a photograph of the victim;

                 (4) the trial court erred by failing to charge the jury regarding
                 the lesser offenses of robbery and theft;

                 (5) the statutory aggravator set forth in T.C.A. § 39-13-204(i)(5)
                 is unconstitutional because it is vague and cannot be
                 understood and applied by jurors; and

                 (6) the trial court erred by imposing consecutive sentences. 1

We hold that the evidence is sufficient to support the felony murder conviction and that

the trial court committed no reversible error.



                 Clyde Smith, the father of the victim, Robert Smith, testified that he saw

his son at approximately 9:30 p.m. on November 26, 1993. He said that on November

28, his mother called and told him that she had not seen the victim over the

Thanksgiving weekend and that he always came by on Saturday. Mr. Smith stated that


                 1
                  After the briefs were filed in this case, the defendant filed a pro se “Am ended Petition to
the Original Appeal” seeking to present additional issues. However, a defendant may not proceed pro se
on app eal when he or sh e is also re presen ted by cou nsel. State v. Burkhart, 541 S.W.2d 365, 371 (Tenn.
1976); State v. Co le, 629 S.W .2d 915, 9 17 (Te nn. Crim . App. 198 1).

                                                      2
he and his other son, Charles Smith, went to the victim’s apartment. He testified that

he discovered the door to the apartment open and the lights out. According to Mr.

Smith, Charles entered the apartment and called the victim’s name, and when the

victim did not respond, they left the apartment, believing that the victim had stepped

outside. He said that they returned at about 6:30 p.m. and discovered the victim dead,

lying on his back in a pool of blood in the kitchen. He testified that the apartment had

been ransacked. Mr. Smith stated that he later found several items missing from the

victim’s apartment, including a VCR. He also said that he told Sergeant Morris that the

victim generally carried a large sum of cash with him. According to Mr. Smith, the victim

had some learning disabilities, although he was not classified as being mentally

retarded and was able to function in society.



             Dr. Jerry Francisco, a pathologist, testified that he along with Dr. Violet

Hnilica conducted an autopsy of the victim. He stated that the examination of the victim

showed that the cause of death was multiple injuries to the body. He said that the

victim suffered blunt-force injuries to the head, cuts to the neck and a group of stab

wounds to the chest. In Dr. Francisco’s opinion, any of the types of injuries could have

caused the victim’s death. He testified that the injuries caused damage to the brain, the

voice box, the lungs and the heart. He stated that there were thirteen stab wounds to

the chest that were deep, penetrating the victim’s heart, lungs and ribs. He said that

two of the cuts to the victim’s neck severed the jugular vein. Dr. Francisco described

the victim’s blunt-force injuries to the head as a broken skull extending to the base of

the skull. On cross-examination, Dr. Francisco testified that it was possible that death

or unconsciousness could have occurred after the first few injuries were inflicted. He

also conceded that if the victim was unconscious after the first few injuries were

inflicted, he would not have felt any pain. Dr. Francisco admitted that there was no way

for him to determine how quickly the victim died, but he said that it would have taken at

least minutes.



                                            3
              Sergeant Jerry Morris of the Milan Police Department testified that he

responded to a call regarding the victim. He said that he discovered the victim lying on

his back and partially on his right side in the kitchen surrounded by blood on the floor,

wall and refrigerator. He stated that the victim was wearing a T-shirt and jeans and did

not have shoes or socks on. Sergeant Morris testified that he found a towel with blood

on it hanging on a towel rack in the bathroom. He also said that the bedroom had been

ransacked in that clothes had been taken out of drawers and thrown at the foot of the

bed. Sergeant Morris stated that the television in the living room was on but that the

cable had been disconnected.



              Sergeant Morris testified that the defendant was interviewed by the Milan

Police Department on three occasions: (1) during the initial investigation, (2) on

November 29, 1993, after Sergeant Morris talked to the defendant’s girlfriend, Clara

Langley, and an informant, and (3) on December 5, 1993. He said that he obtained a

ring from Ms. Langley and that the informant told him about seeing the defendant with

the VCR and the movies. Sergeant Morris said that during the second and third

interviews of the defendant, the defendant gave a statement. He testified that the

defendant also gave a statement to the Tennessee Bureau of Investigation on

November 30, 1993. Sergeant Morris stated that after the defendant’s second

interview, he recovered the victim’s ring, approximately nine movies, VCR and a remote

control, with the movies and the VCR being found at the defendant’s home. He said

that he verified that the VCR belonged to the victim. He testified that he also recovered

the victim’s wallet and diamond ring. Sergeant Morris stated that the defendant took

him to where the defendant disposed of the wallet in a bush approximately fifty feet

from Salinger Road. He testified that he recovered the victim’s paycheck from a

Texaco Station in Milan. He also identified the defendant’s hiking boots and stated that




                                             4
the defendant told him that he was wearing the boots during the time of the victim’s

death.



             The defendant’s statement given to the Milan Police Department on

November 29, 1993, reflects that the defendant claimed that he was at his brother’s

house and then went to the house of Nikki Wright between the hours of 9:00 p.m. and

2:00 a.m on November 26, 1993. It also shows that the defendant told Sergeant Morris

that he purchased a ring and VCR from a guy who was driving a 1991 or 1992 Grand

Prix about 10:30 or 11:00 p.m. It states that the defendant told the officers that he paid

fifty dollars for the ring and that he traded an air pump for the VCR, although he did not

know who owned the items. The statement reflects that the defendant asserted that he

got the airpump from the mother of his girlfriend and that the movies belonged to other

people. It also states that the defendant denied harming the victim and that the

defendant claimed that he had not seen the victim. In the interview, the defendant

explained that his prints could be in the apartment because he visited the victim’s home

approximately three to four months earlier.



              The defendant’s written statement given to the TBI on November 30,

1993, reflects that the defendant admitted killing the victim. The defendant told the

officers that he was addicted to crack cocaine and that he had borrowed money from

the victim, with whom the defendant worked, on previous occasions to purchase drugs.

He told them that he and the victim were paid on the Wednesday before Thanksgiving

and that he spent two hundred dollars on crack cocaine which he smoked on Friday.

The defendant said that he went to the victim’s apartment between 11:30 p.m. and

midnight because he was out of money and wanted to get some more crack cocaine.

The defendant said that the victim was watching television when he arrived and that he

was wearing a T-shirt and pants but no socks or shoes. He said that he asked the

victim for twenty-five dollars, but the victim refused, saying that the defendant owed him



                                              5
twenty-five dollars from one week earlier. The defendant said that he became mad and

that he and the victim argued, pushed and shoved each other near the dining table. He

stated that the victim told him to leave and then slapped him on the right side of his

face.



              The statement also reflects that the defendant told the officers that he

“lost it” when the victim slapped him and that he grabbed a brown kitchen knife and

struck the victim in the middle of the chest. The defendant said that he could not stop

and that after the knife broke, he began kicking the victim in the head, shoulders and

side while the victim was lying in the kitchen floor. He said that he then picked up a

silver knife and stabbed the victim again in the chest, although he could not recall how

many times. The defendant told the officers that the victim was still alive and was trying

to remove a box cutter from his left pocket to try to stop him when he took the box

cutter from the victim and cut the victim’s throat. The defendant stated that he was so

mad that he could not stop and claimed that he did not mean to do it but that he lost his

mind. According to the defendant’s statement, the defendant went to the bathroom and

wiped his hands on a towel at some point.



              The defendant’s statement to the TBI also shows that the defendant said

that he looked throughout the apartment for money or anything to sell, including the

defendant’s bedroom dresser drawers. He also admitted taking the victim’s wallet,

keys, ring, VCR and movies from the victim’s apartment. According to the defendant,

the victim’s wallet contained one hundred and fifty dollars in cash and a paycheck in the

amount of one hundred and fifty-nine dollars. The defendant told the officers that he

went to his cocaine dealer’s apartment in Milan immediately after leaving the victim’s

apartment and purchased crack cocaine. According to the defendant, he took the VCR

and movies to his apartment and threw the victim’s wallet into a field. The statement




                                            6
reflects that the defendant conceded cashing the victim’s paycheck at a Texaco the

next morning and using the money to purchase more crack cocaine.



              Sergeant Morris also testified that the defendant gave a statement on

December 5, 1993. The statement reflects that the defendant denied killing the victim

and that he claimed that he had blackout spells and when he awoke, he saw a “figure,”

although he saw no one. On cross-examination, Sergeant Morris testified that the

defendant was crying and appeared to be remorseful during the statement given to the

police department on November 30, 1993. He also stated that his investigation did not

reveal anything that would conflict with what the defendant told him had occurred on the

night of the murder.



              Mike Cleary, an employee of Texaco, testified that the defendant came

into the store at approximately 5:30 a.m. and asked him to cash the victim’s payroll

check. He said that he cashed the check, although the defendant told him that he did

not have any identification with him.



              Bobby Mosley, owner of the Jewel Box in Milan, identified a lady’s

diamond ring that he sized for the defendant. He testified that he had earlier sold the

ring to the victim.



              Clara Langley testified that she was living with the defendant at the time

the offense occurred and that she worked with both the defendant and the victim. She

identified the lady’s diamond ring as the one the defendant gave to her at 4:00 a.m on

the Saturday morning after the victim’s death when the defendant asked her to marry

him. Ms. Langley said that she asked him where he got the ring and that the defendant

told her that he got it at a jewelry store in Humboldt. She also identified the VCR,

remote control and videotapes and stated that the defendant brought them into their



                                            7
house on either Saturday or Sunday. She said that when she asked the defendant

where he got the VCR, the defendant told her that he had gotten the items from a man

who had a flat tire and he claimed that he traded an air pump for the VCR. On cross-

examination, Ms. Langley testified that she suspected that the defendant was spending

a lot of money on drugs around the time of his arrest. She also stated that the

defendant was real nervous on Saturday morning.



              Dr. Lynn Zager, a clinical psychologist, testified that she examined the

defendant on November 2, 9, and 16, 1994, to determine the defendant’s competency

to stand trial and his mental condition at the time of the offense. She said that her

evaluation showed that the defendant was an alcoholic and was addicted to cocaine

and marijuana. She stated that the defendant was intoxicated at the time of the

offense. In Dr. Zager’s opinion, the defendant’s behavior was partly a result of his

intoxication, and the defendant’s intoxicated state compromised the defendant’s ability

to conform his behavior to the requirements of the law. Dr. Zager testified that the

defendant’s initial denial of guilt was consistent with his determination that the

defendant suffered from substance abuse. She stated that she found the defendant to

be remorseful about his conduct.



              Dr. Zager’s psychological evaluation report shows that the defendant’s

father was an alcoholic and that his brother and sister have serious substance abuse

problems. It reflects that his parent’s divorced at an early age and that the defendant’s

stepfather was verbally abusive to the defendant. The report states that the defendant,

a high school graduate, began drinking and smoking marijuana at age eighteen and

began using cocaine in 1991. It shows that the defendant’s substance abuse became

critical in 1992 when he lost his car and his job. The report reflects that the defendant

stopped using drugs and alcohol for a period of time but began abusing alcohol,

marijuana and cocaine approximately three weeks before the offense occurred. The



                                             8
results of the report are that although the defendant has maintained a relatively stable

work history, he engages in behaviors that would warrant a diagnosis of a conduct

disorder or antisocial personality disorder. It states that the defendant functions in the

low average range of intelligence. The report shows that Dr. Zager’s findings were that

the defendant was competent to stand trial and that although the defendant’s ability to

conform his behavior to the requirements of the law was compromised because of his

substance abuse, the defendant’s ability to appreciate the wrongfulness of his behavior

was not significantly impaired. In Dr. Zager’s opinion, the defendant was sane at the

time of the offense.



              Richard Clark, a friend of the defendant, testified that the defendant came

by his house at approximately 1:30 a.m on November 27, 1993. He said that the

defendant was “high” from smoking crack cocaine, “kind of nervous,” and “jittery.” Mr.

Clark stated that the defendant had some crack cocaine with him and that the

defendant smoked while he was with him.



                         I. SUFFICIENCY OF THE EVIDENCE

              The defendant asserts that the evidence does not support the jury’s

verdict finding him guilty of first degree murder committed during the perpetration of a

robbery. Specifically, he contends that the proof does not establish beyond a

reasonable doubt that the robbery was closely related to the homicide. He argues that

the evidence instead establishes that the killing occurred collateral to and not in the

perpetration of the aggravated robbery. The defendant asserts that he went to the

victim’s home intending to borrow money from the victim and not with the intent to rob

the victim. He claims that it was only after the killing occurred that he decided to take

the victim’s money. The state asserts that the jury could have reasonably concluded

that the murder was accomplished so that the defendant could take the victim’s money

from him. We agree. In our view, the evidence is sufficient.



                                             9
                  Our standard of review when the sufficiency of the evidence is questioned

on appeal 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, 99 S. Ct.

2781, 2789 (1979). This means that we may not reweigh the evidence, but must

presume that the jury has resolved all conflicts in the testimony and drawn all

reasonable inferences from the evidence in favor of the state. See State v. Sheffield,

676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.

1978).



                  At the time of the killing, felony murder was defined as the unlawful,

“reckless killing of another committed in the perpetration of, or attempt to perpetrate any

first degree murder, arson, rape, robbery, burglary, theft, kidnapping or aircraft piracy.”

T.C.A. §§ 39-13-201(a) and -202(a)(2) (1991)2. A person “acts recklessly with respect

to circumstances surrounding the conduct or the result of the conduct when the person

is aware of but consciously disregards a substantial and unjustifiable risk that the

circumstances exist or the result will occur.” T.C.A. § 39-11-302(c).



                  The proof viewed in the light most favorable to the state establishes that

the defendant went to the victim’s home to borrow some money from him to purchase

drugs. When the victim refused to give him any money, the defendant became upset

and began arguing with the victim. The defendant and the victim shoved each other,

and when the victim slapped the defendant, the defendant grabbed a knife and stabbed

the victim in the chest several times. When the knife broke, the defendant retrieved a

second knife and stabbed the victim in the chest again. As the victim was lying on the

kitchen floor, the defendant kicked the victim in his head, shoulders and side, and he


                  2
                   We note that the provision defining felony murder was amended in 1995 to delete the
reckles s me ns rea e leme nt. See T.C.A. § 39-13-202. “No culpable mental state is required for conviction
under [th e felony m urder] su bdivision . . . exc ept the inten t to com mit the e num erated o ffense s or acts . . .
.” T.C.A. § 39-13-2 02.

                                                          10
also took the victim’s box cutter and cut the victim’s throat. Then, the defendant took

the victim’s ring, keys, VCR, movies and a wallet containing one hundred and fifty

dollars in cash and a paycheck. The defendant took the VCR and movies to his home,

gave the ring to his girlfriend, and used the victim’s money to buy crack cocaine. Under

these circumstances, a rational trier of fact could have determined that the defendant

intended to rob the victim once the victim refused to give him any money and that the

killing occurred during the perpetration of the aggravated robbery. See Mullendore v.

State, 191 S.W.2d 149, 152 (Tenn. 1945) (evidence that the defendant took the victim’s

money and appropriated it to his own use permitted the jury to infer that the defendant

intended to rob the victim, although no prior intent to rob was otherwise shown). We

hold that the proof is sufficient to establish beyond a reasonable doubt the defendant’s

guilt for felony murder.



              II. CONSTITUTIONALITY OF FELONY MURDER STATUTE

              Next, the defendant challenges his conviction by arguing that T.C.A. § 39-

13-202(a)(2) is unconstitutional. He argues that the felony murder statute is overbroad

because a literal reading of the statute authorizes the application of the statute for a

homicide committed in the perpetration of a misdemeanor theft. First, we note that the

defendant was not charged with or convicted of felony murder relative to a

misdemeanor theft; thus, he is not affected by the part of the law about which he

complains. Regardless, our supreme court has concluded that the felony murder

statute is constitutional. State v. Walker, 893 S.W.2d 429, 430 (Tenn. 1995). This

issue is without merit.



                III. ADMISSION OF A PHOTOGRAPH OF THE VICTIM

              The defendant contends that the trial court erred by admitting into

evidence a photograph of the victim lying in a pool of blood, because it has little or no

probative value. He also argues that even if the photograph has probative value, it was



                                            11
substantially outweighed by the danger of inflaming the jury and of denying the

defendant a fair trial. He asserts that the photograph should not have been admitted

into evidence because he did not dispute at trial the cause of death or that he killed the

victim and because Sergeant Morris and Dr. Francisco gave detailed descriptions of the

location and condition of the body and of the nature and extent of the victim’s injuries.

The state responds that the photograph was relevant to establish premeditation and

deliberation3 in that it showed the brutality of the defendant’s attack on the victim.



                The leading case in Tennessee regarding the admissibility of photographs

of murder victims is State v. Banks, 564 S.W.2d 947 (Tenn. 1978), in which the

supreme court held that the determination of admissibility is within the discretion of the

trial court after considering the relevance, probative value and potential unfair

prejudicial effect of such evidence. See Tenn. R. Evid. 403. The general rule, as

stated in Banks, is that “photographs of the corpse are admissible in murder

prosecutions if they are relevant to the issues on trial, notwithstanding their gruesome

and horrifying character.” Id. at 950-51. On the other hand, “if they are not relevant to

prove some part of the prosecution’s case, they may not be admitted solely to inflame

the jury and prejudice them against the defendant.” Id. at 951.



                Thus, even relevant evidence should be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice to the defendant. Id.; see

also Tenn. R. Evid. 403. In Banks, the court stated, “The more gruesome the

photographs, the more difficult it is to establish that their probative value and relevance

outweigh their prejudicial effect.” 564 S.W.2d at 951.




                3
                     The defendant was indicted for first degree murder in separate counts alleging
alternative theories of first degree murder: premeditated and deliberate murder and reckless killing
com mitted d uring the p erpetration of a robb ery. See T.C.A. § 39-13-202(a)(1) and (2) (1991). The jury
retur ned a guilty v erdic t for fe lony m urde r only.

                                                    12
                The color photograph introduced by the state in this case is from a

Polaroid instant camera and is three inches by three inches in size. It shows the victim

lying in the kitchen on his back, feet first, with his head almost totally blocked by his

body. It is not a close-up shot. The victim is wearing blue jeans and a white tee-shirt,

but his feet are bare. There is blood on the lower walls, the refrigerator, and the floor

located next to the body. The tee-shirt is partially blood soaked. A closer look

discloses cuts on one arm and blood on both forearms. The photograph has a dull

quality, without vivid or clear colors.



                The record reflects that the prosecutor sought to introduce the photograph

of the victim contending that it showed the brutality of the attack and the condition of the

victim. He contended that the photograph was relevant to show that the defendant was

at home ready for bed when he was attacked by the defendant who came to his door.

The prosecutor argued that the photograph was relevant to rebut the defendant’s

assertion during opening statement that the victim and the defendant began arguing

after the victim let the defendant into his apartment. Defense counsel asserted in the

opening statement that the proof would show that the killing by the defendant was not

premeditated and deliberate but rather was an impulsive and impassioned act.

Defense counsel stated that the evidence would establish second degree murder only.

In ruling that the photograph was admissible, the trial court stated that the photograph

was less obtrusive than another picture offered by the state.4



                We note that our supreme court has held that the fact that repeated blows

or shots were inflicted on the victim is not sufficient, by itself, to establish premeditation

and deliberation for a first degree murder conviction. State v. Brown, 836 S.W.2d 530,

542 (Tenn. 1992). The court reasoned that repeated blows can also be delivered in the

heat of passion without any design or reflection, and thus, only when the multiple “blows


       4
           The second photo offered by the state is not contained in the record.

                                                    13
are inflicted as a result of premeditation and deliberation can they be said to prove first-

degree murder.” Id. Therefore, based on our supreme court’s holding in Brown, we

conclude that the photograph was not admissible to establish premeditation and

deliberation.



                However, our supreme court also stated that photographs of the victim

may be admitted “as evidence of the brutality of the attack and the extent of the force

used against the victim, from which the jury could infer malice, either express or

implied.” Id. at 551; see also State v. Smith, 868 S.W.2d 561, 576 (Tenn. 1993) (Trial

court did not abuse its discretion by admitting a photograph of the victim when the trial

court stated that the photograph was relevant to show “‘premeditation, malice and intent

because of the multiplicity of these wounds and an obvious intent of whoever was

inflicting these wounds.’”). In this case, the prosecution was required to establish that

the killing was intentional. See T.C.A. § 39-13-202(a)(1) (1991). Though the defendant

admitted killing the victim, he asserted during opening statement that the proof would

establish second degree murder but not first degree premeditated and deliberate

murder. The picture of the victim demonstrates that the defendant’s attack of the victim

was a brutal one and thus is probative to the issue of the defendant’s intent.



                We note that the picture’s probative value is somewhat diminished given

the other evidence in the case. Sergeant Morris testified that he discovered the victim

lying in a pool of blood in the kitchen and that there was blood on the refrigerator, the

wall and the floor. Dr. Francisco provided a detailed description of the victim’s injuries.

The defendant did not contest that he killed the victim or that he inflicted the injuries

described by Dr. Francisco. Because this testimony was presented, the admission of

the photograph could be viewed as cumulative evidence, and the need for it on the

issue of the defendant’s intent was minimized.




                                             14
              In weighing the probative value of the photograph against its risk of unfair

prejudice, though, we do not believe that the single photograph is particularly gruesome

or graphic. In our review, we are unable to conclude that its probative value was

substantially outweighed by the risk of unfair prejudice. See Tenn. R. Evid. 403.

Therefore, we hold that the trial court did not abuse its discretion in admitting the

photograph into evidence.



                          IV. LESSER INCLUDED OFFENSES

              The defendant contends that the trial court erred by denying his request to

charge the jury regarding the lesser included offenses of robbery and theft. The state

asserts that the trial court properly denied the defendant’s requested jury instructions

because the record does not support a finding of guilt for either robbery or theft. We

agree.



              Pursuant to T.C.A. § 40-18-110(a), a trial court is required “to charge the

jury as to all of the law of each offense included in the indictment, without any request

on the part of the defendant to do so.” When the evidence, introduced by either the

state or the defendant, is susceptible of inferring guilt of a lesser grade or class or a

lesser included offense of the charged offense, there is a mandatory duty upon the trial

court to charge such lesser offense. See T.C.A. § 40-18-110(a); State v. Trusty, 919

S.W.2d 305, 310 (Tenn. 1996); Johnson v. State, 531 S.W.2d 558, 559 (Tenn. 1975);

State v. Howard, 926 S.W.2d 579, 585-86 (Tenn. Crim. App. 1996). However, the

instruction is not required if there is no proof in the record to support a conviction for the

lesser offense. Trusty, 919 S.W.2d at 311.



              Though we agree that robbery is a lesser grade and a lesser included

offense and that theft is a lesser included offense of especially aggravated robbery, we

do not agree that the evidence in this case warrants an instruction on either offense.



                                             15
Here, the uncontested proof established that the defendant robbed and killed the victim

after the victim refused to give the defendant any money. The evidence establishes

that the defendant is either guilty of the greater offense of especially aggravated

robbery or not guilty at all. Nothing in the record suggests that the defendant could be

found guilty of simple robbery or theft. Therefore, we hold that the defendant was not

entitled to an instruction on the lesser offenses of robbery and theft.



                   V. CONSTITUTIONALITY OF HEINOUS, ATROCIOUS
                         AND CRUEL AGGRAVATING FACTOR

                 The defendant contends that the “heinous, atrocious, and cruel” statutory

aggravating factor as set forth in T.C.A. § 39-13-204(i)(5) is unconstitutional because it

is vague and cannot be understood and applied by lay persons serving on the jury. He

relies upon Rickman v. Dutton, 854 F. Supp. 1305 (M.D. Tenn. 1994) (“depravity of

mind” instruction is unconstitutionally vague without a further limiting instruction). The

state notes that Rickman is distinguishable because the instruction given in the present

case did not include the “depravity of mind” language. In any event, our supreme court

has concluded that the aggravating circumstance under T.C.A. § 39-13-204(i)(5) is

constitutional. State v. Odom, 928 S.W.2d 18, 24-26 (Tenn. 1996). This issue is

without merit.



                             VI. CONSECUTIVE SENTENCING

              The defendant challenges the trial court’s determination that he should

serve his sentence for especially aggravated robbery consecutive to the sentence

imposed for his first degree murder conviction. He argues that the trial court should

have imposed concurrent sentences. The state contends that the record supports the

trial court’s determination that the defendant is a dangerous offender and that the

record supports consecutive sentences. We agree.




                                              16
              Appellate review of sentencing is de novo on the record with a

presumption that the trial court's determinations are correct. T.C.A. § 40-35-401(d). As

the Sentencing Commission Comments to this section notes, the burden is now on the

defendant to show that the sentence is improper. This means that if the trial court

followed the statutory sentencing procedure, made findings of fact that are adequately

supported in the record, and gave due consideration and proper weight to the factors

and principles that are relevant to sentencing under the 1989 Sentencing Act, we may

not disturb the sentence even if a different result were preferred. State v. Fletcher, 805

S.W.2d 785, 789 (Tenn. Crim. App. 1991).



              However, "the presumption of correctness which accompanies the trial

court's action is conditioned upon the affirmative showing in the record that the trial

court considered the sentencing principles and all relevant facts and circumstances."

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the purpose of

meaningful appellate review,

              the trial court must place on the record its reasons for arriving
              at the final sentencing decision, identify the mitigating and
              enhancement factors found, state the specific facts supporting
              each enhancement factor found, and articulate how the
              mitigating and enhancement factors have been evaluated and
              balanced in determining the sentence. T.C.A. §§ 40-35-210(f)
              (1990).

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994).



              Also, in conducting a de novo review, we must consider (1) the evidence,

if any, received at the trial and 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, (5) any mitigating or statutory enhancement

factors, (6) any statement that the defendant made on his own behalf and (7) the

potential for rehabilitation or treatment. T.C.A. §§ 40-35-102, -103 and -210; see

Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229, 236-37 (Tenn. 1986).



                                             17
                 At the sentencing phase of the trial for the felony murder, Gibson County

Deputy Jailer John Sporsick testified that he was working when the defendant was held

in jail. He stated that the defendant never caused problems and was polite, friendly,

and very talkative. He said that he could not have asked for a better inmate. Deputy

Jailer Sporsick also expressed the opinion that the defendant was amenable to

rehabilitation.



                 The then twenty-seven-year-old defendant, a high school graduate,

testified that he had always had a job and had worked steadily. He stated that his

substance abuse problem involving alcohol and marijuana started when he was

eighteen years old, and he said that he began using cocaine in 1991. The defendant

testified that some of his brothers and sisters also have experienced substance abuse

problems. The defendant expressed remorse for committing the offense and stated

that he accepted full responsibility for what happened. On cross-examination, the

defendant admitted that he initially lied about his involvement in the crimes, but he

claimed that he was scared. The defendant asserted that he used drugs usually on the

weekends and that his drug use did not interfere with his work performance.



                 At the sentencing hearing for the especially aggravated robbery

conviction, no witnesses testified. The presentence report reflects that the defendant

has a prior felony conviction in 1987 for attempt to commit a felony5. It also reflects that

the defendant admitted that he had used alcohol and marijuana since he was eighteen

and that he began using cocaine in either 1992 or 1993. The report shows that the

defendant attended counseling and Alcoholics Anonymous meetings as a condition of

parole. Regarding the defendant’s employment history, the report states that the

defendant worked briefly as a cook at a restaurant and as a stocker for a supermarket

and also reflects that the defendant had been fired from a factory job. It shows that the


                 5
                 The p resente nce rep ort does not state w hat felony w as attem pted. Ho wever, it refle cts
that the defendant was indicted for aggravated rape and received a sentence of three years.

                                                      18
defendant worked continuously for approximately two years as a forklift driver before his

arrest for the present offenses.



              At the conclusion of the sentencing hearing, the trial court sentenced the

defendant as a Range I, standard offender to fifteen years, the minimum sentence

within the range. See T.C.A. § 40-35-112(a)(1). The trial court stated that it had

considered the mitigating and enhancement factors that had been presented and found

that they were equally balanced. The trial court concluded that the especially

aggravated robbery sentence should be served consecutively to the sentence for life

without the possibility of parole because the defendant met all the criteria for dangerous

offender status as outlined in Gray v. State, 538 S.W.2d 391 (Tenn. 1976).



              The defendant asserts that the trial court failed to make specific findings

that would warrant a consecutive sentence, and that the trial court’s failure to make

such findings warrants the modification of his sentences to be served concurrently. We

agree that the trial court should have made more detailed findings as required by the

1989 Criminal Sentencing Act and subsequent case law. However, its reliance upon

the Gray criteria reflects its consideration of the appropriate factors.



              Consecutive sentencing may be considered if the trial court finds by a

preponderance of the evidence that the 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.” T.C.A. § 40-35-115(b)(4). This finding,

along with other considerations must be made. In State v. Wilkerson, 905 S.W.2d 933,

939 (Tenn. 1995), our supreme court stated:

              [T]he imposition of consecutive sentences on an offender
              found to be a dangerous offender requires, in addition to the
              application of general principles of sentencing, the finding that
              an extended sentence is necessary to protect the public
              against further criminal conduct by the defendant and that the



                                             19
              consecutive sentences must reasonably relate to the severity
              of the offenses committed.

These factors were noted in Gray, as well.



              As the trial court found, the circumstances of the offenses demonstrate

that the defendant had little or no regard for human life and had no hesitation about

committing a crime in which the risk to human life is high. When the victim refused to

give the defendant any money to buy drugs, the defendant stabbed the victim several

times in the chest, penetrating the victim’s heart, lungs and ribs. When the knife the

defendant was using broke, he began kicking the victim in his head, shoulders and side.

The defendant then retrieved a second knife and stabbed the defendant again in the

chest. When the victim tried to remove a box cutter from his pocket to protect himself

from the defendant’s attack, the defendant took the box cutter from the victim and slit

the victim’s throat, severing his jugular vein. Any one of the types of injuries could have

caused the victim’s death. These facts establish that the defendant is a dangerous

offender under Wilkerson.



              The defendant has a prior conviction for an offense that involved a crime

against a person and has a history of alcohol and drug abuse. Although the

defendant’s youth, good school record, and steady work history indicate a capability for

rehabilitation, we cannot conclude that the evidence preponderates against the trial

court’s determination that the criteria for consecutive sentencing exist in this case.

Under these circumstances, we conclude that the record sufficiently supports the trial

court’s consecutive sentencing decision.



              In consideration of the foregoing and the record as a whole, we affirm the

defendant’s judgments of conviction.




                                                  Joseph M. Tipton, Judge


                                             20
CONCUR:




David H. Welles, Judge




Jerry L. Smith, Judge




                         21
