         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs October 7, 2003

                   STATE OF TENNESSEE v. CURTIS BUFORD

                  Direct Appeal from the Criminal Court for Shelby County
                          No. 01-05754    Joseph B. Dailey, Judge



                     No. W2003-00370-CCA-R3-CD - Filed March 2, 2004


The appellant, Curtis Buford, was convicted by a jury in the Shelby County Criminal Court of two
counts of aggravated robbery, Class B felonies. Following a sentencing hearing, the trial court
sentenced the appellant on each count as a Range II multiple offender to twenty years incarceration
in the Tennessee Department of Correction, to be served concurrently. On appeal, the appellant
argues that (1) the trial court committed reversible error by not instructing the jury on the lesser-
included offenses of aggravated robbery; (2) the multiple convictions for aggravated robbery arising
out of a single incident involving a single victim violated double jeopardy principles; and (3) the
evidence was insufficient to sustain the appellant’s convictions for aggravated robbery. Upon review
of the record and the parties’ briefs, we conclude that the trial court’s failure to charge the jury on
the lesser-included offenses of aggravated robbery was error. However, we conclude that the error
was harmless beyond a reasonable doubt. We also conclude that the evidence was sufficient to
sustain a conviction for aggravated robbery. Additionally, we conclude that the appellant’s dual
convictions for aggravated robbery violated the principles of double jeopardy. Accordingly, we
merge the aggravated robbery convictions into a single conviction and remand to the trial court for
the correction of the judgments to reflect the merger of the convictions.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are Modified and
                                       Remanded.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR.,
and JOHN EVERETT WILLIAMS, JJ., joined.

Robert Wilson Jones, District Public Defender, and Tony N. Brayton, Assistant Public Defender (on
appeal), and Donna Armstard, Assistant Public Defender (at trial), for the appellant, Curtis Buford.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Steve Jones, Assistant District Attorney General,
for the appellee, State of Tennessee.
                                               OPINION

                                       I. Factual Background

        On October 8, 2000, in the early morning hours, Memphis Police Officer David Payment
responded to a robbery call at 3211 Ridgecrest in Memphis. When he arrived at the house, he
observed a red pickup truck in the driveway with “what appeared to be a bullet hole coming out of
the roof” and “a pistol lying on the passenger’s seat.” After interviewing the residents, Officer
Payment took the black nine-millimeter automatic pistol and its magazine into evidence. At trial,
Officer Payment reviewed photographs of the pickup truck and identified the bullet hole located in
the truck’s roof.

       At trial, Maxine Goodwin, the victim’s wife, testified that her husband died on August 22,
2001, nearly a year after the robbery. He suffered cardiac arrest while mowing a neighbor’s lawn.

       Mrs. Goodwin testified that at approximately 3:00 a.m. on October 8, 2000, her husband
came into their bedroom, woke her, and told her that “he had been carjacked and robbed.” Mrs.
Goodwin immediately told the victim to call the police and, while the victim placed the call, she
woke her son. They went into the family room, and the victim described the details of the robbery.
Mrs. Goodwin described the victim as “very anxious, pacing . . . hyper as anyone would be who had
experienced something like that . . . .”

        At trial, Mrs. Goodwin recounted the events as told by the victim, stating,

                        He was at [Vic’s] lounge, and there was a gentleman there
                who he did not know by name but had seen him previously, and the
                gentleman asked him for a ride, and he gave him a ride. And while
                they were in the [truck], the gentleman directed him to go somewhere
                because my husband didn’t know where the gentleman lived, . . . and
                he said he wanted his money. My husband told him that he did not
                have any money; that all he had was $20. . . . [However,] the
                gentleman stated that he had more, had him park the truck, rummaged
                through everything in our truck, and . . . a chest or whatever those
                things are on the back of the truck, and he went through that stuff as
                well.

         When the man, later identified as the appellant, did not find anything in the truck, he ordered
the victim back into the truck, pointed a gun at the victim, and instructed the victim to drive onto the
expressway. Mrs. Goodwin testified that the victim told her that he exceeded the speed limit, hoping
to be stopped by police. However, the appellant told the victim that if he alerted the police, he would
shoot him. Thereafter, the appellant ordered the victim to take the Norris Road exit. Mrs. Goodwin
testified, “[A]t that point, my husband said to himself . . . , ‘If I’m going to die, I’m going to die the
way I want to.’” The victim then stepped on the brake and “tussled” with the appellant. During the


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altercation, the gun discharged, and the bullet exited through the roof of the truck. Mrs. Goodwin
testified that the victim’s lip was swollen as a result of being struck in the mouth during the
altercation. The victim also told her that the appellant had a gun when he demanded the money.

        Mrs. Goodwin said that during their ten-year marriage, the victim had never owned or carried
a gun other than a BB gun. However, after the robbery, the victim purchased a gun and obtained a
gun permit. At trial, Mrs. Goodwin identified the following items: the gun found in the victim’s
truck following the offense, the victim’s gun permit displaying a photograph of the victim, and a
photograph of the bullet hole located in the roof of the truck. Mrs. Goodwin also identified her
husband’s voice on an audio recording of the preliminary hearing at which he testified.

        On cross-examination, Mrs. Goodwin acknowledged that she was familiar with Vic’s
Lounge, having patronized the lounge with the victim on several occasions. Mrs. Goodwin stated
that occasionally a metal detector was located at the entrance to the lounge, but “[n]ot always.” Mrs.
Goodwin admitted that initially the victim did not know the alleged robber’s name, so he contacted
a friend who knew the man. Thereafter, the victim informed the police of the man’s name. Mrs.
Goodwin also conceded that it was possible that her husband had a gun without her knowledge,
elaborating, “Anything is possible.” However, she noted that after the alleged robbery, “[the victim]
went through the proper procedures to purchase and [obtain] the permit to have a gun.”

        Sergeant William Woodward of the Memphis Police Department testified that in October
2000, he was assigned to investigate a robbery involving the appellant. On the morning following
the alleged robbery, Sergeant Woodward met with the victim. As a result, the appellant was
identified as a suspect. Sergeant Woodward prepared a photographic lineup, which he presented to
the victim. Thereafter, Sergeant Woodward obtained a warrant for the appellant’s arrest. The
appellant was subsequently arrested and taken to the robbery squad office for questioning.

        Initially, Sergeant Woodward and Detective Pierce interviewed the appellant. After waiving
his rights, the appellant indicated that he did not know the victim, did not possess a gun, and had not
been to Vic’s Lounge. Because Sergeant Woodward “wasn’t getting anywhere,” he asked another
officer, Sergeant Tim Green, to interview the appellant. After Sergeant Green interviewed the
appellant, Sergeant Woodward “[w]ent back and talked to the [appellant] one more time.” The
appellant then admitted that he had been at Vic’s Lounge with the victim and that he had asked the
victim for a ride home. However, the appellant claimed that during the ride home, the victim
attempted to rob him. Sergeant Woodward asked the appellant to put his statement in writing, but
the appellant refused.

        Tim Green, a sergeant with the Memphis Police Department’s Robbery Squad, testified that
in October 2000, Sergeant Woodward asked him to interview the appellant “for awhile to see if he
would give any information . . . .” Thereafter, Sergeant Green and Detective Pierce interviewed the
appellant. During the interview, the appellant admitted that he was at Vic’s Lounge on the night of
the alleged robbery. The appellant claimed that he showed the victim a gun, but did not rob him.
Sergeant Green relayed this information to Sergeant Woodward.


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        Assistant District Attorney Tim Beacham testified that in December 2000, he represented the
State at the appellant’s preliminary hearing at which the victim testified. Beacham made an audio
recording of the hearing, including the victim’s testimony. A separate recording of the victim’s
testimony was copied from the original and transcribed. Prior to testifying at trial, Beacham listened
to the original audio recording of the preliminary hearing and the separate recording of the victim’s
testimony. He identified the voices on the recordings as those of the parties involved in the hearing.
Thereafter, the recording of the victim’s testimony was played for the jury.

        The victim’s testimony at the preliminary hearing mirrored his wife’s testimony at trial. The
victim identified the appellant as the man who robbed him on October 8, 2000. The victim testified
that he was at Vic’s Lounge having a drink when the appellant entered the lounge. Later, he and the
appellant shared a “40-ounce” beer. Afterward, the appellant asked the victim to drive him to his
house in the Greenlawn area. During the drive, the appellant asked the victim to stop the truck. The
appellant then pointed a black nine-millimeter pistol at the victim and said, “Give me your money.”
The victim looked at the appellant in disbelief, stating, “[M]an, you gotta be kidding.” The appellant
responded, “I’m not playing with [you], I’ll kill you, don’t make me kill you.”

        The victim gave the appellant his money, but the appellant was not satisfied. The appellant
ordered the victim to empty his pockets, and the victim complied. The appellant then rummaged
through the glove compartment of the truck and told the victim to open the toolbox in the back of
the truck. After searching the toolbox, the appellant ordered the victim to get back into the truck and
drive to “the Southside.”

        Following the appellant’s instructions, the victim drove onto Interstate 40. The appellant
advised the victim that if he alerted the police he would be shot. Next, the appellant ordered the
victim to take the Norris Road exit. As the victim turned onto Norris Road, he thought, “I’m not
going out this way; I’m going to go out my way or no way.” The victim then stepped on the brakes
and reached for the pistol. He and the appellant “tussle[d],” and the pistol discharged, shooting a
hole in the roof of the pickup truck. During the struggle, the victim took the pistol from the
appellant, pulled him from the truck, and told him “to give me my stuff back.” The appellant
returned the victim’s wallet and credit cards, but kept twenty-one dollars ($21) in cash. After
returning the victim’s property, the appellant walked away.

        The victim immediately drove home and called the police. When the police arrived, he gave
them the pistol he had taken from the appellant. He also provided a statement to the officers. The
victim testified at the preliminary hearing that he had not seen the appellant since the night of the
robbery.

       Mary L. Buford, the appellant’s wife, was the sole witness to testify on behalf of the
appellant. She stated that prior to 1999, she had been to Vic’s Lounge “[a]bout four or five times
or more.” She had not been there “after 1999.” Mrs. Buford claimed that a metal detector was
located at the entrance of the lounge. She testified that when she was there, the metal detector was



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“always in place.” She explained that if the detector “[went] off,” the patron was then scanned with
a handheld scanner.

        Based on the foregoing testimony, the jury convicted the appellant of two counts of
aggravated robbery. Following a sentencing hearing, the trial court sentenced the appellant on each
count as a Range II multiple offender to twenty years incarceration, to be served concurrently. The
appellant now appeals, asserting that (1) the trial court committed reversible error by not instructing
the jury on the lesser-included offenses of aggravated robbery; (2) the multiple convictions for
aggravated robbery arising out of a single incident involving a single victim violated double jeopardy
principles; and (3) the evidence was insufficient to sustain the appellant’s convictions for aggravated
robbery.

                                              II. Analysis

                                     A. Lesser-Included Offenses

       Whether an offense should be submitted to the jury as a lesser-included offense is a mixed
question of law and fact. State v. Marcum, 109 S.W.3d 300, 302 (Tenn. 2003) (citing State v. Rush,
50 S.W.3d 424, 427 (Tenn. 2001)). Mixed questions of law and fact are reviewed de novo with no
presumption of correctness. Id.

       In 2001, the legislature amended Tennessee Code Annotated section 40-18-110, with the
amendments to govern all trials conducted on or after January 1, 2002. Because the appellant’s trial
occurred in November 2002, the amended statute is controlling in the instant case. Tennessee Code
Annotated section 40-18-110(a) (2003) 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.

Failure to submit a written request for a lesser-included offense results in a waiver of the instruction
and will not provide a ground for relief in either a motion for new trial or on appeal. Tenn. Code
Ann. § 40-18-110(c). In the absence of a request, the trial court may charge the jury on a particular
lesser-included offense, but no party is entitled to any such charge. Tenn. Code Ann. § 40-18-
110(b).

        In the instant case, the trial court initially stated that it intended to charge the jury on simple
robbery as a lesser-included offense of aggravated robbery. The appellant then made an oral request
for an instruction on theft of property and submitted a written request for instructions on attempted
aggravated robbery, attempted robbery, and attempted theft of property. After considering the
evidence and discussing the issue at great length with the parties, the trial court denied the


                                                   -5-
appellant’s requests, refusing to instruct the jury as to any lesser-included offenses of aggravated
robbery.1

        As noted, the appellant did not request in writing that the trial court instruct the jury on the
lesser-included offenses of robbery and theft of property. However, in the instant case, we cannot
read section 40-18-110 to preclude the appellant’s oral requests, even though the appellant failed to
file a written request for the instructions on robbery and theft. The appellant requested the
instruction on theft of property upon learning that the trial court was not going instruct the jury on
the offense, but prior to the trial court’s charge to the jury. Accordingly, in addition to the attempt
offenses requested by the appellant in writing, we will address the trial court’s failure to charge
robbery and theft of property as lesser-included offenses.

       Again, the appellant challenges the trial court’s failure to charge robbery, theft of property,
attempted aggravated robbery, attempted robbery, and attempted theft of property as lesser-included
offenses of aggravated robbery. On appeal, the State concedes that the trial court erred by not
charging these lesser-included offenses, but asserts that the error was harmless beyond a reasonable
doubt. We agree.

        Under the test adopted in State v. Burns, 6 S.W.3d 453, 466-67 (Tenn. 1999), an offense is
a lesser-included offense if:




         1
            As noted, following a lengthy discussion, the trial court refused to charge any lesser-included offenses of
aggravated robbery. The trial court, throughout more than twenty pages of the transcript, noted its dissatisfaction and
disagreement with “all this sham that’s coming down [from the appellate courts] with regard to lesser-included offenses
these days.” The trial court stated,

                  [W ]e’re not in the business, or we shouldn’t be in the business, and it’s an outrage
                  if our appellate courts are now in the business of providing juries with lesser
                  offenses that do not exist in the proof simply for the purpose of allowing them to
                  compromise or to reach a jury-nullification verdict. That is an outrage if that’s what
                  the appellate courts are heading toward and if that’s where we are.

          Our supreme court has repeatedly emphasized that all lesser-included offenses must be charged as set forth in
State v. Burns, 6 S.W .3d 453 (Tenn. 1999). This court has previously advised the trial court that our supreme court

                  is a direct creature of the Constitution and constitutes the supreme judicial tribunal
                  of the state and is a court of last resort. All other courts are constitutionally inferior
                  tribunals subject to the actions of the [s]upreme [c]ourt. Its adjudications are final
                  and conclusive upon all questions determined by it, subject only to review, in
                  appropriate cases by the Supreme Court of the United States. The Shelby County
                  Criminal Court, as is this [c]ourt, is bound by the rulings of the Tennessee
                  Supreme Court.

State v. W alter W ilson, No. W 2003-02344-CCA-R10-CO, slip op. at 7 (Tenn. Crim. App. at Jackson, Oct. 6, 2003)
(emphasis added) (citations omitted).

                                                             -6-
                (a) all of its statutory elements are included within the statutory
                elements of the offense charged; or
                (b) it fails to meet the definition in part (a) only in the respect that it
                contains a statutory element or elements 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 of
                         (1) facilitation of the offense charged or of an offense
                         that otherwise meets the definition of lesser-included
                         offense in part (a) or (b); or
                         (2) an attempt to commit the offense charged or an
                         offense that otherwise meets the definition of lesser-
                         included offense in part (a) or (b); or
                         (3) solicitation to commit the offense charged or an
                         offense that otherwise meets the definition of lesser-
                         included offense in part (a) or (b).

       Because the elements of robbery and theft of property are included in the definition of
aggravated robbery, our supreme court has previously held that these offenses are lesser-included
offenses of aggravated robbery under part (a) of the Burns test. State v. Allen, 69 S.W.3d 181, 187
(Tenn. 2002); State v. Bowles, 52 S.W.3d 69, 79 (Tenn. 2001). Moreover, the attempt to commit
aggravated robbery, robbery, and theft of property are lesser-included offenses under part (c)(2) of
the Burns test.

         However, the trial court is not required to instruct the jury on all lesser-included offenses.
To determine whether the evidence justifies a jury instruction on a lesser-included offense, the trial
court must employ the following two-step process adopted by our supreme court in Burns, 6 S.W.3d
at 469, and incorporated into Tennessee Code Annotated section 40-18-110(a) (2003). First, the trial
court must determine whether “the record contains any evidence which reasonable minds could
accept as to the lesser included offense.” Tenn. Code Ann. § 40-18-110(a). “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 such
evidence.” Id. Second, the trial court “shall . . . determine whether the evidence, viewed in this
light, is legally sufficient to support a conviction for the lesser included offense.” Id.; see also Burns,
6 S.W.3d at 469.

        Our supreme court has previously stated that, as a general rule,

                [e]vidence 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


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                proven the lesser offense because all of the statutory elements of the
                lesser offense are included in the greater.

State v. Richmond, 90 S.W.3d 648, 660 (Tenn. 2000) (quoting Allen, 69 S.W.3d at 188). However,
the general rule for lesser-included offenses under part (a) of the Burns test does not extend to lesser-
included offenses under part (c). Id. at 662. “Establishing proof sufficient to convict under the
greater offense will not necessarily prove the lesser offenses . . . enumerated in part (c) of the test.”
Id. “[P]art (c) of the Burns test, which makes an attempt a lesser-included offense, applies ‘to
situations in which a defendant attempts to commit . . . either the crime charged or a lesser-included
offense, but no proof exists of the completion of the crime.’” Marcum, 109 S.W.3d at 303 (quoting
State v. Ely, 48 S.W.3d 710, 719 (Tenn. 2001)). In other words, an instruction on a lesser-included
offense under part (c)(2) of the Burns test is not warranted unless a reasonable juror could have
found that the appellant was guilty of attempt as opposed to the completed crime. Id. at 304.

         In the instant case, we conclude that the evidence was sufficient to warrant an instruction on
robbery and theft, the lesser-included offenses under part (a) of the Burns test. Richmond, 90
S.W.3d at 660; see also State v. Oscar Reynolds, No. W2002-01201-CCA-R3-CD, 2003 WL
21338969, at *2 (Tenn. Crim. App. at Jackson, June 6, 2003), perm. to appeal denied (Tenn. Nov.
3, 2003). Moreover, we conclude that the evidence justified an instruction on attempt. Accordingly,
the trial court erred in failing to instruct the jury on the lesser-included offenses of robbery, theft, and
attempt.

         A defendant’s right to an instruction on a lesser-included offense is protected under Article
I, section 6 of the Tennessee Constitution. State v. Ely, 48 S.W.3d 710, 727 (Tenn. 2001). Our
supreme court has previously held that the failure to instruct the jury on lesser-included offenses will
merit reversal unless the State proves beyond a reasonable doubt that the outcome of the trial was
not affected. Id. “[T]he failure to instruct on a lesser-included offense is harmless beyond a
reasonable doubt when the ‘omitted element is uncontested and supported by overwhelming and
uncontroverted evidence.’” Richmond, 90 S.W.3d at 661 (quoting Allen, 69 S.W.3d at 189).

        Based upon our review of the evidence, we conclude that the trial court’s failure to instruct
the jury on the lesser-included offenses of robbery and theft constituted harmless error. In the instant
case, the State relied upon the use of a deadly weapon to prove that the robbery was aggravated. See
Tenn. Code Ann. § 39-13-402(a)(1) (1997). The appellant presented no evidence contesting this
fact. The testimony of the appellant’s wife related to the fact that in 1999 a metal detector was
located at the entrance to Vic’s lounge and the metal detector would have sounded if someone
entered the lounge with a weapon. She did not testify regarding the offenses or whether a weapon
had been used.

        Additionally, the appellant’s statements to the police did not contest that a deadly weapon
was used during the robbery. Initially, the appellant denied any involvement in the robbery, claiming
that he did not know the victim, did not own a gun, and had not been at Vic’s Lounge. However,
the appellant subsequently admitted that he and the victim were at Vic’s Lounge on the night of the


                                                    -8-
robbery, and that he showed the victim a handgun. He also claimed that he did not rob the victim.
In his final version of events, the appellant claimed that he accepted a ride home with the victim, and
the victim attempted to rob him.

        According to the victim’s preliminary hearing testimony and the testimony of the victim’s
wife at trial, the appellant pointed a pistol at the victim during the robbery. The pistol discharged
into the roof of the victim’s truck when the victim wrested the weapon from the appellant. Officer
Payment testified that when he arrived at the victim’s house, he observed the victim’s pickup truck
in the driveway with a bullet hole in the roof and a pistol on the passenger’s seat. The black nine-
millimeter pistol, which Officer Payment took into evidence, was presented to the jury at trial.
Moreover, the jury was shown photographs of the bullet hole in truck’s roof and the pistol on the
seat. In sum, the proof was overwhelming that a weapon was used in the commission of the robbery.
The jury obviously did not believe that the victim, not the appellant, possessed the gun.
Accordingly, the trial court’s failure to charge the jury on the offenses of robbery and theft was
harmless beyond a reasonable doubt.

        We also conclude that the trial court’s failure to charge attempt as a lesser-included offense
was harmless beyond a reasonable doubt. The appellant asserts that “there was evidence from which
the jury could have reasonably concluded that [the] robbery failed and that at most [the appellant]
was guilty of an attempt.” On appeal, the appellant claims that the victim testified that “he
ultimately retained all of his property and he also had the weapon.” However, as the State correctly
notes, the victim testified that he wrestled the pistol from the appellant and ordered the appellant to
return the stolen items. Thereafter, the appellant returned the victim’s wallet and credit cards, but
retained the victim’s money. Regardless, we conclude that the failure to charge the jury on attempt
was harmless beyond a reasonable doubt.

        The testimony of the victim’s wife at trial and the victim’s preliminary hearing testimony
introduced at trial established that the appellant displayed a pistol and took twenty-one dollars ($21)
from the victim. The officers who interviewed the appellant testified that the appellant gave three
different statements, none of which alleged his involvement in the offense. This issue is without
merit.

                                        B. Double Jeopardy

        Next, the appellant contends, and the State concedes, that double jeopardy precludes the dual
convictions of aggravated robbery where the convictions were based upon a single act committed
against a single victim. We agree.

        The double jeopardy clauses of both the United States and the Tennessee Constitutions
provide that no one shall be twice put in jeopardy of life or limb for the same offense. U.S. Const.
amend. V; Tenn. Const. art. I, § 10. The constitutional right against double jeopardy protects against
(1) a second prosecution for the same offense after an acquittal; (2) a second prosecution for the
same offense after a conviction; and (3) multiple punishments for the same offense. State v.


                                                 -9-
Beauregard, 32 S.W.3d 681, 682 (Tenn. 2000); see also State v. Conway, 77 S.W.3d 213, 217-18
(Tenn. Crim. App. 2001).

        In the instant case, the State indicted the appellant under the alternative theories of aggravated
robbery, charging the appellant in count one with committing aggravated robbery by violence and
in count two with committing aggravated robbery by placing the victim in fear. See Tenn. Code
Ann. § 39-13-401(a), -402(a) (1997). The jury convicted the appellant under both theories.
Thereafter, a judgment of conviction was entered on each count, providing that the sentences for
each conviction were to be served concurrently. Our review of the record reflects that the evidence
supports only one offense of aggravated robbery. Accordingly, the dual convictions violate the
principles of double jeopardy and should be merged into a single conviction of aggravated robbery.

                                    C. Sufficiency of the Evidence

       Finally, the appellant challenges the sufficiency of the evidence to sustain his convictions for
aggravated robbery. Specifically, the appellant asserts that the

                convictions [were] based upon the tape-recorded testimony of the
                alleged victim and the hearsay testimony of the victim’s wife. The
                jury was not able to view and therefore fairly judge the credibility of
                the primary witness against [the appellant]. Additionally, there was
                no physical evidence linking [the appellant] to this crime.

The State maintains that a rational jury could conclude that the appellant was guilty of aggravated
robbery.

         When an appellant challenges the sufficiency of the convicting evidence, the standard for
review 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); Tenn. R. App. P.
13(e). On appeal, the State is entitled to the strongest legitimate view of the evidence and all
reasonable or legitimate inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d
832, 835 (Tenn. 1978). Questions concerning the credibility of witnesses and the weight and value
to be afforded the evidence, as well as all factual issues raised by the evidence, are resolved by the
jury as trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This court will not reweigh
or reevaluate the evidence. Id. Because a jury conviction removes the presumption of innocence
with which a defendant is initially cloaked at trial and replaces it on appeal with one of guilt, a
convicted defendant has the burden of demonstrating to this court that the evidence is insufficient.
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

        Aggravated robbery is defined in pertinent part as robbery “[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). Robbery is “the intentional or knowing


                                                  -10-
theft of property from the person of another by violence or putting the person in fear.” Tenn. Code
Ann. § 39-13-401(a).

        Taken in the light most favorable to the State, the evidence at trial established that the victim
agreed to give the appellant a ride home from Vic’s Lounge. After driving a few blocks, the
appellant ordered the victim to stop the truck, pointed a nine-millimeter pistol at the victim, and
demanded his money. The appellant robbed the victim of twenty-one dollars ($21). We conclude
that this evidence was sufficient to sustain a conviction for aggravated robbery.

                                           III. Conclusion

        In summary, we conclude that the trial court’s failure to charge the jury on the lesser-included
offenses of robbery, theft, and attempt was error. However, we conclude that the error was harmless
beyond a reasonable doubt. We also conclude that the evidence was sufficient to sustain the
appellant’s conviction for aggravated robbery. Additionally, we conclude that the appellant’s dual
convictions for aggravated robbery violate the principles of double jeopardy, and the convictions
should be merged into a single conviction. Accordingly, we remand to the trial court for the
correction of the judgments to reflect the merger of the aggravated robbery convictions.




                                                         ___________________________________
                                                         NORMA McGEE OGLE, JUDGE




                                                  -11-
