         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                      July 19, 2000 Session

                 STATE OF TENNESSEE v. JAMES ERIC ALDER

              Appeal as of Right from the Criminal Court for Sequatchie County
                           No. 3741    Thomas W. Graham, Judge



                    No. M1999-02544-CCA-R3-CD - Filed October 27, 2000


The appellant, James Eric Alder, was convicted by a jury in the Criminal Court for Sequatchie
County of one count of aggravated robbery, a class B felony. The trial court sentenced the appellant,
as a Range I offender, to ten years incarceration in the Tennessee Department of Correction and
assessed a fine of $25,000. The appellant raises the following issue(s) for review: whether the trial
court erred in refusing to charge the jury as to aggravated assault, assault, and theft as lesser-included
offenses of aggravated robbery. Upon review of the record and the parties’ briefs, we affirm the
judgment of the trial court.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which DAVID G. HAYES, and
THOMAS T. WOODALL , JJ., joined.

B. Jeffery Harmon, Jasper, Tennessee, for the appellant, James Eric Alder.

Paul G. Summers, Attorney General and Reporter, Elizabeth B. Marney, Assistant Attorney General,
James W. Pope, III, Assistant District Attorney General, and Stephen Strain, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                               OPINION

                                       I. Factual Background
               On December 22, 1997, the appellant, James Eric Alder, knocked on Cecil Rogers’
door, claiming that he needed to call for help because his car had broken down. Rogers allowed the
appellant to enter his home in order to use the telephone. The appellant told Rogers that there was
no answer when he called and that he would try again in a few minutes. Rogers and the appellant
talked about football for a while before the appellant again attempted to make a telephone call. After
using the telephone again, the appellant approached Rogers from behind and knocked the elderly
gentleman out of his chair and onto the floor. The appellant stood over Rogers, wielding a knife, and
demanded Rogers’ wallet. The appellant took his wallet and threatened to kill Rogers if he moved.
The appellant used duct tape to bind Rogers hands and yanked the telephone receiver from the wall.
As he was leaving, the appellant grabbed Rogers’ pistol from the chair in which Rogers had been
sitting and pointed the gun at Rogers. Once again, the appellant warned Rogers that he would kill
Rogers if he moved. The appellant then left with Rogers’ wallet and gun.

                Rogers testified that the appellant wore a light jacket, light-colored jeans, white
tennis shoes, and a maroon baseball cap with a white “A” on the front. Rogers emphatically asserted
that he could identify the appellant as the individual who robbed him, particularly because the
appellant had been in Rogers’ home for at least thirty minutes. Additionally, Rogers admitted that
he was frightened by the robbery.

                 After being instructed on aggravated robbery and simple robbery, a jury in the
Criminal Court for Sequatchie County convicted the appellant of one count of aggravated robbery.
The trial court sentenced the appellant, as a Range I offender, to ten years incarceration in the
Tennessee Department of Correction. The appellant appeals his conviction, alleging that the trial
court erred in refusing to charge the jury as to aggravated assault, assault, and theft as lesser-included
offenses of aggravated robbery.

                                                II. Analysis
                  In analyzing the appellant’s claim, we must begin by determining whether aggravated
assault, assault, and theft are lesser-included offenses of aggravated robbery. The Tennessee
Supreme Court overruled State v. Trusty, 919 S.W.2d 305 (Tenn. 1996), in the case of State v.
Dominy, 6 S.W.3d 472, 476-77 (Tenn. 1999), to the extent that Trusty recognized and allowed
convictions for “lesser grade” offenses which were not lesser-included offenses under the statute for
which the appellant was indicted.1 The supreme court replaced the Trusty analysis with a different
test in State v. Burns, 6 S.W.3d 453, 467 (Tenn. 1999). Accordingly, we must apply the definition
for lesser-included offenses as was set out in Burns:
         An offense is a lesser-included offense if:
         (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 a lesser-included offense in part (a) or (b); or



         1
           In Dominy, the supreme court stated that “contrary to the conclusion reached in Trusty , ‘lesser grade or class’
and ‘lesser-included offense’ are sim ply synonymo us terms desc ribing a single type of offense which is included in the
offense charged in an indictment and which, therefore, form the basis of a conviction.” 6 S.W.3d at 477.

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                 (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).
Id. at 466; see also State v. Carter, No. M1999-00798-CCA-R3-CD, 2000 WL 515930, at *8, (Tenn.
Crim. App. at Nashville, April 27, 2000).

                To prove aggravated robbery, the State must establish that the appellant committed
a robbery with a deadly weapon. Tenn. Code Ann. § 39-13-402(a)(1)(1997). Furthermore, “robbery
is the intentional or knowing theft of property from the person of another by violence or putting the
person in fear.” Tenn. Code Ann. § 39-13-401(a)(1997). Accordingly, by applying part (a) of the
Burns test, theft is obviously a lesser-included offense of both robbery and aggravated robbery.

                A person commits assault when he “intentionally or knowingly causes another to
reasonably fear imminent bodily injury.” Tenn. Code Ann. § 39-13-101(a)(2)(1997). Additionally,
a person commits aggravated assault by intentionally or knowingly committing an assault by using
or displaying a deadly weapon. Tenn. Code Ann. § 39-13-102(a)(1)(B)(1997). As this court has
previously found,
        the offense of aggravated robbery requires proof of a theft of property, whereas
        aggravated assault does not. However, the offense of aggravated assault by causing
        another to reasonably fear imminent bodily injury by the use of a deadly weapon does
        not require proof of any additional element distinct from the elements of aggravated
        robbery accomplished with a deadly weapon.
State v. Gray, No. 02C01-9707-CC-00270, 1998 WL 211791, at *2-3 (Tenn. Crim. App. at Jackson,
May 1, 1998). Therefore, applying part (a) of the Burns test, both assault and aggravated assault are
lesser-included offenses of aggravated robbery.

                After establishing that aggravated assault, assault, and theft are lesser-included
offenses of aggravated robbery, we must conduct a two-part inquiry to determine whether the jury
should have been instructed on those offenses. Burns, 6 S.W.3d at 469. As our supreme court stated:
       First, [we] must determine whether any evidence exists that reasonable minds could
       accept as to the lesser-included offense. In making this determination, [we] 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, [we] must determine if the evidence, viewed in this light, is legally sufficient
       to support a conviction for the lesser-included offense.
Id.

                Rogers, the victim, testified at trial that the appellant knocked him to the floor,
threatened him with a knife, and demanded his wallet. Furthermore, Rogers asserted that the
appellant took Rogers’ gun from the chair in which Rogers had been sitting, pointed the gun at
Rogers, and again threatened to kill Rogers if he moved. Additionally, Rogers testified that the
incident frightened him. In contrast, the appellant denied that he was the person who committed the


                                                -3-
offense. In support of the appellant’s defense, the appellant’s sister and brother-in-law testified that
the appellant had been at their home all day and could not have left in order to commit the crime.
Accordingly, the only two possibilities are that the incident occurred as Rogers testified, or it did not
occur at all. See Carter, 2000 WL 515930, at *9.2 Because the appellant either committed
aggravated robbery or he committed no crime, we conclude that the trial judge did not err in refusing
to instruct the jury on aggravated assault, assault, or theft. See Carter, 2000 WL 515930, at *9.

                The appellant also argues that, because no evidence was adduced at trial to suggest
that he took Rogers wallet directly from Rogers, the jury could have found that the appellant
assaulted the victim incidental to the theft of the wallet and pistol. We disagree. Although the
record is unclear as to the exact location of the wallet, Rogers testified that, as Rogers was lying on
the floor, the appellant demanded the wallet and “[the appellant] got that wallet and stood up.”

               Moreover, as this court has found, a person can be guilty of aggravated robbery
whether the victim is in actual or constructive possession of the item stolen. State v. Griffin, No.
E1999-00122-CCA-R3-CD, 2000 WL 1221873, at *2 (Tenn. Crim. App. at Knoxville, August 29,
2000)(finding that the defendant was guilty of robbery regardless of whether he took the victim’s
wallet from the victim’s hand or from the counter in front of the victim).

                The trial court instructed the jury on both aggravated robbery and the lesser-included
offense of simple robbery. The jury found that the facts supported a conviction of aggravated
robbery. Therefore, even if the trial court erred by failing to instruct the jury on lesser-included
offenses, this error is harmless. State v. Williams, 977 S.W.2d 101, 106-107 (Tenn. 1988)(finding
that where jury was charged on first-degree murder and second-degree murder and nonetheless found
the defendant guilty of first-degree murder, the trial court’s failure to instruct the jury on voluntary
manslaughter was harmless error).

                                           III. Conclusion
                   Based upon the foregoing, we affirm the judgment of the trial court.




                                                                  ___________________________________
                                                                  NORMA McGEE OGLE, JUDGE



         2
            See also Bolin v. Sta te, 405 S.W .2d 768 , 773 (T enn. 196 6)(stating whe re the only disp ute was whether the
defendant committed the crime, the trial c ourt did no t err in failing to instruct the jury on lesser-inc luded off enses);
Patterson v. State, 400 S.W.2d 743, 747 (Tenn. 1966)(finding that where defendant claims an alibi defense and does not
dispute the circumstances of the crime, the trial court correctly found that the evidence did not support charging the jury
on lesser-included offenses); State v. Smith, 751 S.W.2d 468 , 471 (Tenn. Crim. App. 1988)(asserting that “[a] trial judge
is not required to charge lesser-included offenses when the proof shows that the defendant comm itted the greater offense
or no offense at all.”).

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