        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs September 1, 2009

                STATE OF TENNESSEE v. PAUL RICHARDSON

              Direct Appeal from the Criminal Court for Shelby County
                    No. 05-03372    James C. Beasley, Jr., Judge


             No. W2008-02506-CCA-R3-CD - Filed September 29, 2010


The Defendant-Appellant, Paul Richardson, was convicted by a Shelby County Criminal
Court jury of aggravated robbery, a Class B felony, aggravated burglary, a Class C felony,
aggravated assault, a Class C felony, and unlawful possession of a handgun by a convicted
felon, a Class E felony. He was sentenced as a persistent offender to twenty-five years for
the aggravated robbery conviction, ten years for the aggravated burglary conviction, and
fourteen years for the aggravated assault conviction. He was also sentenced as a career
offender to six years for the unlawful possession of a handgun by a convicted felon
conviction. The court ordered the sentences for the aggravated robbery and aggravated
assault convictions to be served consecutively and the remaining sentences to be served
concurrently, for an effective sentence of thirty-nine years. In addition, all of the sentences
in this case were ordered to be served consecutively to a prior federal sentence for unlawful
possession of a handgun by a felon. On appeal, Richardson argues that (1) the trial court
erred in charging the jury on aggravated assault by intentionally or knowingly causing
another to reasonably fear imminent bodily injury when the indictment charged him with
aggravated assault by knowingly causing bodily injury to another, and (2) the evidence was
insufficient to support his convictions. Upon review, we affirm the judgments for aggravated
robbery, aggravated burglary, and unlawful possession of a handgun by a convicted felon,
but we reverse and vacate the judgment for aggravated assault and remand this matter for the
purpose of allowing the trial court to restructure the manner of service of the remaining
sentences to include consecutive sentences, if the court deems it to be appropriate.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which D AVID H. W ELLES
and A LAN E. G LENN, JJ., joined.

Lance R. Chism, Memphis, Tennessee, for the Defendant-Appellant, Paul Richardson.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant
Attorney General; William L. Gibbons, District Attorney General; Dean DeCandia and Paul
Hagerman, Assistant District Attorneys General, for the Appellee, State of Tennessee.

                                         OPINION

       Trial. Jenell Allen testified that she was at her house on Auburn Street with some
friends, her nieces and nephews, and her friends’ children on the evening of December 24,
2003. She said that there were approximately fourteen or fifteen children at her home that
night. Allen said she was styling her friend’s hair in the “hair room” when she heard the
children in the front of the house say, “Y’all ain’t the police.” Before she could walk to the
front of the house, a young man dressed in “all black” with “a camera or a badge” around his
neck walked into the room she was in and said, “[W]here [is] the money, where [is] the
weed.” Allen told the man that she did not know what he was talking about. He also asked
her, “Where J-Mack at [sic].” Allen explained that an individual who went by the name of
“J-Mack” lived across the street from her. When the man pointed a black pistol with “a long
barrel” in her face, Allen said, “[I]t scared the mess out of me.” The man told her he was
going to her kill her, and she gave him $100 to $200. Allen also said that Pandora Powell,
who was also in the room, gave the man around $20. Allen said that Powell was so afraid
during the incident that “she used the rest room [sic] on herself.” Allen was unsure whether
anyone else in the room gave the man money. After taking the money, the man ran out of
the house. Allen said that she did not see the other man who was with the person that robbed
her because the other man did not enter the room where she was working.

        On April 15, 2004, the police showed Allen a photographic line-up, and she identified
Richardson as the man that robbed her during the incident. Allen stated that Richardson
looked different at trial than he did in the photographic lineup. She explained that his hair
was different and he was bigger in the photograph than he was at trial. Nevertheless, Allen
identified Richardson at trial as the person that robbed her on December 24, 2003.

        Anita Williams testified that she was related to Allen and was at Allen’s house on
December 24, 2003, when the robbery occurred. Williams said that she was on the telephone
when a man wearing a mask cracked open Allen’s front door and then quickly shut it. When
she heard the children screaming, she dropped the telephone and ran back to the “hair room”
where she encountered a different man, who was not wearing a mask. This man pointed a
“silver” handgun “with a pearl handle” at her and asked her if she knew where “J-Mack”
was. She said she did not, and she dropped her purse. The man grabbed her purse and
walked out of the house. Williams said that she identified Richardson as the man that robbed
her in a photographic lineup on March 26, 2004. She also identified Richardson at trial as
the man that robbed her. Williams said that three or four weeks prior to trial, an investigator

                                              -2-
for the defense showed her several pictures, and she again identified Richardson as the
person that robbed her.

        Martesha Johnson, Allen’s niece, testified that she was sixteen years old at the time
of the incident on December 24, 2003. She said she heard a knock at the door and before she
could open it, two men came into Allen’s house. She said that there was a third man that
stayed outside the house. Both men asked for “J-Mack.” Johnson said that “J-Mack” was
not there. Then the two men asked everyone to move to one side of the house. She said the
light-skinned man had a handgun and the dark-skinned man had a rifle. They both were
dressed in black and wore bullet proof vests, and one of the men wore a mask. She said that
she initially thought that the two men were the police. She said that the light-skinned man
came into the house first and then the dark-skinned man wearing the mask entered the house.
Both men went to the “hair room,” and Johnson heard a lot of screaming. She said that the
two men were back in that room for about four minutes before they both ran out of the house
and drove off in a white van. At the time, Johnson thought that the person the men were
referring to as “J-Mack” was Allen’s husband, who lived at Allen’s house on Auburn Street
but was not present during the December 24, 2003 incident. She later admitted that she did
not know that there was another person who was called “J-Mack” that lived across the street
from Allen.

        Lynette “Lynn” Johnson, Martesha Johnson’s mother, testified that she was at Allen’s
home during the incident on December 24, 2003. She said a man came inside the house
asking for “J-Mack.” When Allen told him that “J-Mack” was not there, the man turned
around to walk out, and Lynn saw that he had a gun. She asked Allen if she knew the man
and informed her that he had a gun. When the man heard her comment, he came back into
the room and put the gun up to Allen’s head, demanded money, and asked her where the
drugs were located. Allen told him that they did not have anything there and that “J-Mack”
was not there. Then the man pointed “a big black” handgun at her and asked if she had any
money, but Lynn did not have any money to give him. Then the man pointed the gun at
another girl and “pulled her shirt down” so that he could take the $100 that she had in her
cleavage. Lynn said that Allen’s husband was called “J-Mack” and that she did not know
that a man who lived across the street from Allen also went by “J-Mack.” She described the
man that robbed her as five feet, seven or eight inches tall. She said he was “small, thin”
with “[l]ight skin” and “thick brows” and a “low haircut.”

       Pandora Powell testified that she was at Allen’s house at the time of the incident on
December 24, 2003. Powell said that she had her head down while Allen was styling her
hair. When she looked up, she saw a man with a “chrome” .44 magnum in the room. The
man began screaming, “Where’s the money, where’s the money.” Powell said that the man
then “handled [Allen] real rough[,] and he threw her down.” She also said that the man

                                             -3-
“smacked” Allen “a couple of times.” Powell said that the man then came over to her and
“start[ed] searching [her] in [her] brassiere and in [her] pockets.” She said that he recovered
$20 from her bra. Powell said that she believed “he was probably [going] to kill all of us
because he didn’t have a mask on.” She said that the police showed her a photographic
lineup approximately three months after the incident. She quickly identified Richardson in
the line-up because she “couldn’t forget his face.” Powell said that she was “100 percent
sure” that Richardson was the man that robbed her. She also identified Richardson at trial
as the person who robbed her.

        Prior to the close of the State’s case-in-chief, the following stipulation was read to the
jury:

               The State of Tennessee and the defendant Paul Richardson by and
        through counsel of record having agreed as follows hereby stipulate to the
        following facts: Paul Richardson as named here and after in the stipulation is
        the same Paul Richardson presently on trial in this court in Indictment 05-
        03373 for aggravated robbery, aggravated burglary, aggravated assault and
        convicted felon in possession of a handgun.

                Paul Richardson and the State hereby agree that as of December 24th
        [sic] of 2003, Paul Richardson had been convicted of aggravated robbery; a
        felony involving the use of violence. Specifically, Paul Richardson was
        convicted on February 10th [sic], 1998, in Division 10 of Criminal Court of
        Shelby County, Tennessee under docket number 97-07016.

     The defense then presented three witnesses at trial: Edward Richardson, Wanda
Washington, and Julie Buck. Paul Richardson, the Defendant-Appellant, did not testify.

       Edward Richardson, Paul Richardson’s brother, testified that he specifically recalled
December 24, 2003, because Paul was having trouble with his girlfriend’s son, who had
allegedly committed a robbery. Edward said he picked up Paul around 2:00 p.m. that day, and
they went to visit his other brother but returned to Paul’s house by 4:00 or 4:30 p.m. Edward
said that he stayed at Paul’s house with him from 4:30 p.m. to 11:15 or 11:20 p.m. when he
went home to be with his children on Christmas Eve. He said that he knew that Paul did not
leave his home because he did not have a car. Edward said that he particularly remembered
December 24, 2003, because it was “[r]eally one of the [few] Christmas[es] we ever got to
spend together as adults.” In addition, Edward acknowledged that he had been convicted of
a misdemeanor marijuana charge four years earlier and that he was with his brother at the
time that he was arrested for this drug charge. Edward also admitted that although his



                                               -4-
brother did not have a valid driver’s license, his brother owned a white Chevrolet Corsica
at the time of the incident.

       Wanda Washington testified that she dated Paul Richardson for approximately two
years. She said that she specifically remembered December 24, 2003, because she and her
family were together socializing all day and night on Christmas Eve. She also said that she
remembered that particular Christmas Eve because Paul got shot shortly thereafter.
Washington stated that, as far as she knew, Paul Richardson was present at the Christmas Eve
party at her house the entire time. However, she also said that there were large numbers of
people coming “in and out” during the party.

        Julie Buck, who was declared an expert in the field of psychology, testified that she
had a doctorate in psychology and worked as an assistant professor in criminal justice at
Weber State University in Utah. Dr. Buck stated that she had published work and had spoken
at conferences in the area of eyewitness memory and eyewitness identifications. She said
that in situations where a gun is involved, individuals often have “weapon focus” where they
can often “describe in great detail the gun but might have trouble describing the face [of the
person holding the gun].” She added that “high levels of stress tend to decrease [an
individual’s] ability to recall and remember details of an event later on.” Moreover, she said
that if there are two or more perpetrators involved in an incident, the victim’s attention is
divided, making it more difficult for the victim to remember each perpetrator’s face. Dr.
Buck acknowledged that photographic lineups were “not inherently suggestive” and stated
that proper police procedures “decrease the chances that somebody will wrongfully identify
someone.” She admitted that she had neither met nor discussed this case with Allen,
Williams, or Powell.

       Following trial, the jury convicted Richardson of aggravated robbery, aggravated
burglary, aggravated assault, and unlawful possession of a handgun by a convicted felon. He
received an effective sentence of thirty-nine years. Richardson filed a motion for new trial
on June 5, 2008 and filed an amended motion for new trial on October 10, 2008. The trial
court denied these motions by written order on October 10, 2008, and Richardson
subsequently filed a timely notice of appeal.

        I. Jury Charge Different from Indictment. Richardson argues that the trial court
erred in instructing the jury on aggravated assault by intentionally and knowingly causing
another to reasonably fear imminent bodily injury when the indictment charged him with
aggravated assault by knowingly causing bodily injury to another. He argues that aggravated
assault by reasonable fear of imminent bodily injury is an alternative theory, rather than a
lesser included offense, of aggravated assault by bodily injury. Citing State v. Atta Najjar,
No. W2003-00329-CCA-R3-CD, 2004 WL 123213, at *5 (Tenn. Crim. App., at Jackson, Jan.

                                             -5-
21, 2004), Richardson further asserts that the trial court committed reversible error when he
“was not put on notice that he would have to defend against the particular theory of
aggravated assault read by the trial court to the jury.” He acknowledges that he did not make
a contemporaneous objection when the trial court made the jury instruction regarding
aggravated assault; however, he argues that “[a]n erroneous or inaccurate jury charge, as
opposed to an incomplete jury charge, may be raised for the first time in a motion for a new
trial and is not waived by the failure to make a contemporaneous objection.” State v.
Faulkner, 154 S.W.3d 48, 58 (Tenn. 2005) (citing State v. Lynn, 924 S.W.2d 892, 898-99
(Tenn. 1996)). He further contends that his failure to make a contemporaneous objection at
the time of the instruction cannot be construed as consent to amend the indictment. See
Tenn. R. Crim. P. 7(b); State v. Stokes, 24 S.W.3d 303, 306-07 (Tenn. 2000); Atta Najjar,
2004 WL 123213, at *6. In addition, he notes that no motion was made by the State to
amend the indictment and his consent to amend the indictment is not present in the record.

        In response, the State contends that because Richardson was charged with the greater
offense of aggravated assault by bodily injury he was put on notice of the lesser offense of
aggravated assault by reasonable fear of imminent bodily injury. See Howard v. State, 578
S.W.2d 83, 85 (Tenn. 1979) (“[A]n offense is necessarily included in another if the elements
of the greater offense, as those elements are set forth in the indictment, include, but are not
congruent with, all the elements of the lesser.”). It also argues that the trial court’s
instruction was not erroneous pursuant to Faulkner, and the defense’s failure to make a
contemporaneous objection resulted in waiver of the issue on appeal. See Faulkner, 154
S.W.3d at 58. Moreover, the State asserts that “the court instructed the jury on aggravated
assault by causing the victim to fear imminent bodily injury under section (b)(2) of the test
announced by our Supreme Court in Burns v. State, 6 S.W.3d 453 (Tenn. 1990), because,
under the facts of this case, aggravated assault by causing the victim to fear imminent bodily
injury is ‘a less serious harm’ than aggravated assault by causing bodily harm.” The State
asserts that “the issue of whether aggravated assault by causing the victim to fear imminent
bodily injury as a lesser offense of aggravated assault by causing bodily injury is an issue of
first impression in this Court[.]” However, it contends that subsection (b)(2) of the Burns
test supports this finding under the facts of the instant case.

       Tennessee Code Annotated section 39-13-102 (2003) defines aggravated assault:

       (a) A person commits aggravated assault who:

              (1) Intentionally or knowingly commits an assault as defined in §
              39-13-101 and:

                     (A) Causes serious bodily injury to another; or

                                              -6-
                     (B) Uses or displays a deadly weapon[.]

Accordingly, “[a]ggravated assault . . . consists of three elements: (1) mens rea; (2)
commission of an assault as defined in 39-13-101; and (3)(a) serious bodily injury or (b) use
or display of a deadly weapon. State v. Hammonds, 30 S.W.3d 294, 298 (Tenn. 2000)
(internal footnote omitted).

       In order to fully understand the elements of aggravated assault, we must also consider
the elements of assault as defined by Tennessee Code Annotated section 39-13-101 (2003):

       (a) A person commits assault who:

              (1) Intentionally, knowingly or recklessly causes bodily injury to
              another;

              (2) Intentionally or knowingly causes another to reasonably fear
              imminent bodily injury; or

              (3) Intentionally or knowingly causes physical contact with another and
              a reasonable person would regard the contact as extremely offensive or
              provocative.

In other words, the offense of simple assault can be committed one of three ways. However,
none of these three forms or means of committing the offense of simple assault are
considered lesser included offenses of the others.

       Here, the trial court initially questioned the parties regarding the proper jury
instruction for the aggravated assault count:

       T HE C OURT: All right. I have a question, then. Bodily injury. [The]
                    [a]ggravated assault count alleges bodily injury.

       [S TATE]:     We just withdraw that indictment, Judge, that count of the
                     indictment.

       T HE C OURT: Well, I’m of the opinion that under Burns, that would be State
                    [v.] Burns, part B-1 or B-2, I’m sorry, a less serious harm or risk
                    of harm to the same person, property or public interest is an
                    included offense.



                                             -7-
In reviewing aggravated assault, there are three types of
aggravated assault. There’s aggravated assault by causing
bodily injury. There’s aggravated assault by causing the victim
to be in reasonable fear of imminent bodily injury. There is
aggravated assault by an offensive or provocative physical
contact. All of those being done with a deadly weapon, make
that an aggravated assault.

Bodily injury in part A of the aggravated assault charge, I don’t
think there’s been any proof of bodily injury. And I believe the
indictment in question deals with Ms. Powell. Ms. Powell
testified that she was frightened. She felt that she was going to
die under the circumstances. In my reading of Burns and my
reading of part B-2 of Burns, a less serious harm or risk of harm
to the same person would be an included offense.

Obviously fear of imminent bodily injury is less harm to a
person than serious bodily injury or bodily injury, as well as an
offensive touching or provocative contact or touching would be
a less serious harm than even fear of death. Those to me are
lesser included offenses even within the frame of aggravated
assault which causes bodily injury.

I don’t think that there’s been any proof of bodily injury. But I
do think that Ms. Powell testified that she was in fear of her life,
afraid that she was going to be killed. I believe there was even
some testimony, if I’m not mistaken, from Ms. Allen; I don’t
think Ms. Powell testified to it, but I believe Ms. Allen testified
that Ms. Powell lost control of her bodily functions.

And I think in light of the testimony that the fear of imminent
bodily injury expressed by Ms. Powell would be a less serious
harm than bodily injury as alleged in the indictment. So I intend
to charge the jury on aggravated assault by placing the victim in
fear of imminent bodily injury as included in the original charge.
And I also intend to charge the jury that they can consider
physical contact by the contact being especially offensive or
provocative.




                         -8-
                     She testified that the defendant frisked her, touched her breasts,
                     went into her bra and retrieved money from her bra. And I think
                     under the circumstances, that is less serious than bodily injury
                     and less serious than fear of death. And so I intend to charge
                     aggravated assault by offensive and provocative physical contact
                     as included in the indictment.

                     But I will withdraw from the jury the element of bodily injury.
                     So my intent is to charge aggravated assault part B and part C or
                     sub-B and sub-C in part A. Simple assault B and C. All of
                     those are included under the aggravated assault charge. . . .

                     Any comments? Any other requests? Lesser includeds? Or any
                     special requests for special charges?

       [Defense]:    We would request an instruction on alibi, Your Honor.

       The Court:    I will charge alibi.

       [Defense]:    We’re just requesting the pattern.

       The indictment charging aggravated assault contains the following language, in
pertinent part:

       [That Paul Richardson] on December 24, 2003, in Shelby County, Tennessee,
       and before the finding of this indictment, did unlawfully and knowingly
       commit an assault on PANDORA POWELL and by use of a deadly weapon,
       cause bodily injury to the said PANDORA POWELL, in violation of T.C.A.
       39-13-102, against the peace and dignity of the State of Tennessee.

        Although the indictment specifically referred to the bodily injury element of assault,
the trial court’s jury instruction only included the reasonable fear of imminent bodily injury
and extremely offensive or provocative conduct elements of misdemeanor assault:

              Count three of the indictment charges the offense of aggravated assault.
       The included offenses in that charge which you will consider are aggravated
       assault by causing the victim to fear imminent bodily injury, aggravated assault
       by causing extremely offensive or provocative physical contact with the
       victim, assault by causing the victim to fear imminent bodily injury and assault



                                             -9-
       by causing extremely offensive or provocative physical contact with the
       victim.

              ....

              Any person who commits the offense of aggravated assault is guilty of
       a crime.

             For you to find the defendant guilty of this offense, the State must have
       proven beyond a reasonable doubt the existence of the following essential
       elements: That the defendant intentionally or knowingly caused another to
       reasonably fear imminent bodily injury; or that the defendant intentionally or
       knowingly caused physical contact with another and a reasonable person
       would regard that contact as extremely offensive or provocative; and that the
       defendant used or displayed a deadly weapon.

       Following trial, the jury reached the following verdict regarding the aggravated assault
charge: “We, the jury, find the defendant guilty of aggravated assault by causing the victim
to reasonably fear imminent bodily injury as included in the third count of the indictment.”

       In considering this issue, we note that every defendant has the constitutional right to
be informed of “the nature and cause of the accusation.” U.S. Const. amend. VI, XIV; Tenn.
Const. art. I, § 9. According to Tennessee Code Annotated section 40-13-202 (2003), an
indictment “must state the facts constituting the offense in ordinary and concise language,
without prolixity or repetition, in a manner so as to enable a person of common
understanding to know what is intended and with that degree of certainty which will enable
the court, on conviction, to pronounce the proper judgment.” The Tennessee Supreme Court
has held that an indictment is valid if it contains sufficient information “(1) to enable the
accused to know the accusation to which answer is required, (2) to furnish the court adequate
basis for the entry of a proper judgment, and (3) to protect the accused from double
jeopardy.” State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997) (citations omitted). “[S]pecific
reference to a statute within the indictment may be sufficient to place the accused on notice
of the charged offense.” State v. Sledge, 15 S.W.3d 93, 95 (Tenn. 2000) (citing State v.
Carter, 988 S.W.2d 145, 149 (Tenn. 1999); Ruff v. State, 978 S.W.2d 95 (Tenn. 1998)).
However, there is no requirement that an indictment allege a specific theory of liability in
order to give proper notice to the accused. State v. Lemacks, 996 S.W.2d 166, 172 (Tenn.
1999); see also T.C.A. § 40-13-206(a) (2003) (“When the offense may be committed by
different forms, by different means or with different intents, such forms, means or intents
may be alleged in the same count in the alternative.”).



                                             -10-
        A defendant has a “‘constitutional right to a correct and complete charge of the law.’”
State v. Litton, 161 S.W.3d 447, 458 (Tenn. Crim. App. 2004) (quoting State v. Teel, 793
S.W.2d 236, 249 (Tenn. 1990), superseded by statute on other grounds as stated in State v.
Reid, 91 S.W.3d 247, 291 (Tenn. 2002)). When reviewing challenged jury instructions, we
must look at “the charge as a whole in determining whether prejudicial error has been
committed.” In re Estate of Elam, 738 S.W.2d 169, 174 (Tenn. 1987) (citation omitted); see
also State v. Phipps, 883 S.W.2d 138, 142 (Tenn. Crim. App. 1994). “A charge should be
considered prejudicially erroneous if it fails to fairly submit the legal issues or if it misleads
the jury as to the applicable law.” State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997) (citing
State v. Forbes, 918 S.W.2d 431, 447 (Tenn. Crim. App. 1995); Graham v. State, 547 S.W.2d
531 (Tenn. 1977)). Because questions regarding the propriety of jury instructions are a
mixed question of law and fact, the standard of review is de novo with no presumption of
correctness. State v. Smiley, 38 S.W.3d 521, 524 (Tenn. 2001).

       “[A] defendant cannot legally be convicted of an offense which is not charged in the
indictment or which is not a lesser offense embraced in the indictment.” State v. Cleveland,
959 S.W.2d 548, 552 (Tenn. 1997) (citing State v. Trusty, 919 S.W.2d 305, 310 (Tenn.
1996)). This court has held that there must be continuity between the indictment and the
evidence presented at trial in order for a conviction to stand:

       Having the right to be informed of the criminal charge that he or she is to meet
       at trial, the accused cannot be tried for or convicted of an offense not charged
       in the indictment or information. Put simply, not only must the government
       prove the crime it charges, it must charge the crime it proves.

State v. Goodson, 77 S.W.3d 240, 244 (Tenn. Crim. App. 2001) (citing 41 A M. J UR. 2 D
Indictments and Informations § 258 (1995); Cleveland, 959 S.W.2d at 552) (emphasis
added). However, the indictment may be amended with the defendant’s consent. Tenn. R.
Crim. P. 7(b)(1). In order for an indictment to be amended pursuant to Rule 7(b), “an oral
or written motion to amend the indictment should be made, and the defendant’s oral or
written consent to the motion must be clear from the record.” Stokes, 24 S.W.3d at 303.
Even without the defendant’s consent, a trial court may allow an indictment to be amended
before jeopardy attaches “if no additional or different offense is charged and no substantial
right of the defendant is prejudiced.” Tenn. R. Crim. P. 7(b)(2). However, “after an
indictment has been returned, its charge may not be broadened or changed except by action
of the grand jury.” Goodson, 77 S.W.3d at 244 (citing U.S. Const. amend. V; Tenn. Const.
art. I, sec. 14; United States v. Miller, 471 U.S. 130, 148, 105 S. Ct. 1811, 1820 (1985);
Stirone v. United States, 361 U.S. 212, 215, 80 S. Ct. 270, 272 (1960)). This court
emphasized the difference between constructive amendments and variances between the
indictment and the evidence:

                                              -11-
       [C]ourts [must] distinguish between constructive amendments of the
       indictment, which are reversible per se, and variances between indictment and
       proof, which are evaluated under the harmless error doctrine. The accepted
       test is that a constructive amendment of the indictment occurs when the jury
       is permitted to convict the defendant upon a factual basis that effectively
       modifies an essential element of the offense charged. In such cases, reversal
       is automatic, because the defendant may have been convicted on a ground not
       charged in the indictment. If, on the other hand, the variation between proof
       and indictment does not effectively modify an essential element of the offense
       charged, “the trial court’s refusal to restrict the jury charge to the words of the
       indictment is merely another of the flaws in trial that mar its perfection but do
       not prejudice the defendant.”

Goodson, 77 S.W.3d at 244 (quoting U.S. v. Adams, 778 F.2d 1117, 1123 (5th Cir. 1985)
(internal citations omitted)).

        We conclude that the trial court’s erroneous instruction on aggravated assault resulted
in a constructive amendment of the indictment. See Atta Najjar, 2004 WL 123213, at *6
(holding that a constructive amendment of the indictment occurred where the indictment
charged the defendant with aggravated rape by force or coercion while armed with a weapon
but the trial court charged the jury on the alternative element of aggravated rape by bodily
injury and the defendant was convicted on the bodily injury element of the offense); see also
Goodson, 77 S.W.3d at 244-45 (holding that a constructive amendment of the indictment
occurred when the jury was allowed to convict the defendant for driving on a revoked license
despite the fact that the proof at trial established that the defendant was driving on a
suspended license, which constituted a separate and distinct offense). Although the
indictment referenced the code section for aggravated assault, it specified that Richardson
caused bodily injury to Powell using the language found in Tennessee Code Annotated
section 39-13-101(a)(1) (2003). See Atta Najjar, 2004 WL 123213, at *5. Because the
indictment in this case specifies “a particular means of committing the offense in the
indictment, the defendant was not given proper notice that the jury would be allowed to find
him guilty under a different element of the offense.” Id.; see also State v. Michael A. Drake,
No. M2003-02520-CCA-R3-CD, 2004 WL 2636717, at *5 (Tenn. Crim. App., at Nashville,
Nov. 17, 2004) (holding that “[t]he State’s affirmative decision . . . to indict the appellant in
such a specific manner and then proceed at the second phase of trial to offer an additional
theory [of aggravation] . . . prevented the appellant from preparing an adequate defense to
the charge” and that a bill of particulars was unnecessary since “the record demonstrate[d]
that the appellant reasonably thought he knew precisely with what he was charged and
prepared his defense accordingly”). In other words, the language of the indictment failed to
give Richardson adequate notice that the State was prosecuting him for aggravated assault

                                              -12-
under the underlying assault elements of reasonable fear of imminent bodily injury or
extremely offensive or provocative contact. See T.C.A. § 39-13-101(a)(2), (a)(3) (2003).

        The indictment in this case could have generally charged Richardson with assaulting
the victim while using or displaying a deadly weapon. See State v. Griffis, 964 S.W.2d 577,
591 (Tenn. Crim. App. 1997) (“As a general rule, it is sufficient to state the offense charged
in the words of the statute, or words which are the equivalent to the words contained in the
statute.”), perm. to appeal denied (Tenn. Dec. 22, 1997). In addition, the indictment could
have charged Richardson with the offense of aggravated assault by citing the code section
39-13-102 without specifying the particular means in which the underlying assault was
committed under section 39-13-101(a). See Hammonds, 30 S.W.2d at 302 (holding that an
indictment charging aggravated assault was sufficient because it alleged the proper mens rea,
the assault, and the use of a weapon, even though it failed to state whether the prosecution
was intending to prove that the defendant committed the underlying assault through bodily
injury, reasonable fear of imminent bodily injury, or extremely offensive or provocative
contact); see also Wyatt v. State, 24 S.W.3d 319, 324 (Tenn. 2000) (holding that an
indictment charging attempt was sufficient where it cited the proper statute but neither
referred to the attempt statute’s numbered subsections nor specified a course of conduct
establishing the attempt to kill). Finally, although less desirable, the indictment could have
charged Richardson with aggravated assault where the means of committing the underlying
assault were listed in the alternative.          See State v. Jamie John Schrantz, No.
W2002-01507-CCA- R3-CD, 2003 WL 22888910, at *2 (Tenn. Crim. App., at Jackson, Dec.
2, 2003) (stating that although the assault offense in that case was charged in the alternative,
which is permitted under section 40-13-206(a), “the better practice is to allege alternative
modes of assault in separate counts.”). Any of these three options would have been
acceptable, though they might have prompted a motion for a bill of particulars. See Tenn.
R. Crim. P. 7(c) (“On defendant’s motion, the court may direct the district attorney general
to file a bill of particulars so as to adequately identify the offense charged.”). Instead of
utilizing these options, however, the State charged Richardson with aggravated assault where
the underlying assault was committed by bodily injury. See T.C.A. § 39-13-101(a)(1) (2003).
Despite the language in the indictment, the trial court declined to charge the jury on the
bodily injury element of the underlying assault because it found that the proof at trial did not
support this element. Instead, the court instructed the jury on aggravated assault under the
underlying assault elements of reasonable fear of imminent bodily injury and extremely
offensive or provocative physical contact. See id. § 39-13-101(a)(2), (3) (2003).

       We agree with the defense’s contention that the court’s jury instruction on the
aggravated assault charge was “erroneous” and “inaccurate” rather than “incomplete.” See
Faulkner, 154 S.W.3d at 58; see also Atta Najjar, 2004 WL 123213, at *5 (“[T]he trial
court’s erroneous jury instruction allowed the jury to convict the defendant on an element not

                                              -13-
charged in the indictment.”). Consequently, Richardson was not required to make a
contemporaneous objection and was allowed to raise this issue for the first time in his motion
for new trial. See Faulkner, 154 S.W.3d at 58. Moreover, we cannot conclude that the
variance between the indictment and proof was harmless, given that the trial court’s
erroneous instruction resulted in Richardson’s conviction of an element that was not charged
in the aggravated assault count of the indictment. See Atta Najjar, 2004 WL 123213, at 5.
The record shows that the State believed that there was a fatal variance between the
indictment and the proof, which is why it offered to dismiss the aggravated assault count
when the trial court mentioned that the evidence did not support bodily injury of the victim.
Regardless of the State’s actions on this point, we feel that the trial court should have
dismissed the aggravated assault charge since the evidence was insufficient to go to the jury
on this count.

        We also agree that Richardson did not consent to an amendment of the indictment.
See Tenn. R. Crim. P. 7(b); Stokes, 24 S.W.3d at 306-07; Atta Najjar, 2004 WL 123213, at
*6. There was no oral or written motion to amend the indictment in this case, and
Richardson’s consent to such a motion does not appear in the record. Finally, we conclude
that the State’s argument that Richardson was somehow put on notice of the lesser elements
of the offense when he was charged with the greater offense of aggravated assault by bodily
harm is unpersuasive. The Burns decision presented two tests: one for determining which
offenses were lesser included offenses and one for determining whether a jury instruction
should be given for offenses found to be lesser included offenses. See Burns, 6 S.W.3d at
466-69. The Burns decision pertained to lesser included offenses and did not discuss the
issue of discrepancies between the elements of the charged offense and the elements of that
offense given in the jury instruction. Id. Lesser included offenses, which are by their very
nature separate and distinct from the charged offense, and elements of the charged offense
itself are not the same, and any attempt to make them synonymous under Burns must fail.
We conclude that the court’s erroneous jury instruction on aggravated assault constructively
amended the indictment in this case because the jury was allowed to convict Richardson on
a different element from that with which he was charged in the indictment. See Atta Najjar,
2004 WL 123213, at *6. Accordingly, we reverse and vacate the judgment for aggravated
assault and remand this matter for the purpose of allowing the trial court to restructure the
manner of service of the remaining sentences to include consecutive sentences, if the court
deems it to be appropriate.

       II. Sufficiency of the Evidence. Richardson contends that the evidence at trial was
insufficient to support his convictions. In the event that our decision to reverse and vacate
the aggravated assault conviction is not upheld by the Tennessee Supreme Court, we have
analyzed whether the evidence was sufficient to support all of the convictions, including the



                                             -14-
conviction for aggravated assault, despite the variance between the indictment and the proof
on this count.

        Richardson specifically contends that the evidence in this case was insufficient to
establish his identity as that of the perpetrator. He asserts that Allen, Williams, and Powell
were under extremely high levels of stress at the time of the incident and contends that their
stress as well as the women’s focus on the weapon during the incident prevented them from
making a correct identification of the perpetrator. He also emphasizes the fact that he
presented two alibi witnesses at trial who testified that he was with them at the time of the
offenses in this case. Finally, Richardson argues that the evidence was insufficient to support
his conviction for unlawful possession of a handgun by a convicted felon because the
indictment number listed in the stipulation was incorrect.

        In response, the State notes Richardson’s concession that three eyewitnesses identified
him as the perpetrator. It argues that because the jury accredited the identification of the
three eyewitnesses, Richardson effectively concedes that the State presented sufficient proof
for the jury to find that he was the perpetrator. Moreover, the State emphasizes that all three
of the eyewitnesses identified Richardson as the perpetrator both in photographic lineups and
during trial, and these six positive identifications were more than sufficient to support the
convictions in this case. Regarding the conviction for unlawful possession of a handgun by
a convicted felon, the State argues that the stipulation regarding the previous conviction for
aggravated robbery was unaffected by the fact that the indictment number was off by a single
digit. We agree with the State.

        The State, on appeal, is entitled to the strongest legitimate view of the evidence and
all reasonable inferences which may be drawn from the evidence. State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997). When a defendant challenges the sufficiency of the evidence,
the standard of review applied by this court is “whether, after reviewing 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). Similarly, Rule 13(e) of the Tennessee Rules of
Appellate Procedure states, “Findings of guilt in criminal actions whether by the trial court
or jury shall be set aside if the evidence is insufficient to support a finding by the trier of fact
of guilt beyond a reasonable doubt.”

       A verdict of guilt removes the presumption of innocence and replaces it with a
presumption of guilt; therefore, a defendant on appeal has the burden of showing that the
evidence is insufficient to support the jury’s verdict. State v. Thacker, 164 S.W.3d 208, 221
(Tenn. 2005) (citing State v. Evans, 108 S.W.3d 231, 237 (Tenn. 2003); State v. Carruthers,
35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982)).

                                               -15-
A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the State’s
witnesses and resolves all conflicts in the evidence in the State’s favor. Bland, 958 S.W.2d
at 659 (citing State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973)). Issues regarding the
credibility of witnesses, the weight and value of the evidence, and all factual issues raised
by the evidence are resolved by the jury as the trier of fact, and this court does not re-weigh
or re-evaluate the evidence. Id. (citing State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978),
superseded by statute on other grounds as stated in State v. Barone, 852 S.W.2d 216, 218
(Tenn. 1993)). Guilt may be found beyond a reasonable doubt in a case where there is direct
evidence, circumstantial evidence, or a combination of the two. State v. Matthews, 805
S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331
(Tenn. 1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)), perm. to appeal denied
(Tenn. Nov. 13, 1990).

       “The identity of the perpetrator is an essential element of any crime.” State v. Robert
Wayne Pryor, No. M2003-02981-CCA-R3-CD, 2005 WL 901140, at *3 (Tenn. Crim. App.,
at Nashville, Apr. 19, 2005) (citing State v. Thompson, 519 S.W.2d 789, 793 (Tenn. 1975)).
The State has the burden of proving “the identity of the defendant as the perpetrator beyond
a reasonable doubt.” Id. (citing State v. Sneed, 908 S.W.2d 408, 410 (Tenn. Crim. App.
1995)). The identity of the defendant as the perpetrator may be established by direct
evidence, circumstantial evidence, or a combination of the two. Thompson, 519 S.W.2d at
793. As relevant here, “[t]he credible testimony of one identification witness is sufficient
to support a conviction if the witness viewed the accused under such circumstances as would
permit a positive identification to be made.” State v. Radley, 29 S.W.3d 532, 537 (Tenn.
Crim. App. 1999) (citing State v. Strickland, 885 S.W.2d 85, 87-88 (Tenn. Crim. App. 1993),
perm. to appeal denied (Tenn. Feb. 22, 1994)), perm. to appeal denied (Tenn. Dec. 27, 1999).
The identification of the defendant as the perpetrator is a question of fact for the jury after
considering all the relevant proof. Strickland, 885 S.W.2d at 87 (citing State v. Crawford,
635 S.W.2d 704, 705 (Tenn. Crim. App. 1982), perm. to appeal denied (Tenn. June 21,
1982)). Furthermore, the jury may reject an alibi defense. Crawford, 635 S.W.2d at 705.
“The defense of alibi presents an issue of fact determinable by the jury, as the exclusive
judges of the credibility of the witnesses in support of the defense, and of the weight to be
given their testimony.” Id. (citing Green v. State, 512 S.W.2d 641 (Tenn. Crim. App. 1974),
perm. to appeal denied (Tenn. May 20, 1974)).

        Aggravated robbery, as relevant here, is a 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[.]” T.C.A. § 39-13-402(a)(1) (2003). “Robbery is the intentional
or knowing theft of property from the person of another by violence or putting the person in
fear.” Id. § 39-13-401(a) (2003).



                                              -16-
       Aggravated burglary is defined as a “burglary of a habitation as defined in §§ 39-14-
401 and 39-14-402.” Id. § 39-14-403(a) (2003). As is applicable to this case, a person
commits burglary who, without the effective consent of the property owner, “[e]nters a
building and commits or attempts to commit a felony, theft or assault[.] Id. § 39-14-402(a)(3)
(2003).

       In order to convict a person of aggravated assault as relevant in this case, the State
must prove beyond a reasonable doubt that the individual “[i]ntentionally or knowingly
commits an assault as defined in § 39-13-101 and . . . [u]ses or displays a deadly weapon.”
Id. § 39-13-102(a)(1) (B) (2003). Section 39-13-101(a)(1) (2003) defines assault as
“[i]ntentionally, knowingly or recklessly caus[ing] bodily injury to another[.]” Section 39-
13-101(a)(2) (2003) alternatively defines assault as “[i]ntentionally or knowingly caus[ing]
another to reasonably fear imminent bodily injury[.]”

        Richardson acknowledges that Allen, Williams, and Powell positively identified him
as the perpetrator in this case. Because these three eyewitnesses identified him not only in
photographic lineups but also at trial, we conclude that there was more than sufficient
evidence to establish Richardson as the perpetrator in this case. Regarding the aggravated
robbery charge, the proof at trial established that Richardson stole money from Allen while
displaying a deadly weapon. Regarding the aggravated burglary charge, the evidence also
established that Richardson entered Allen’s house without her effective consent and
committed the felony of aggravated robbery. We conclude that the evidence at trial is
sufficient to support Richardson’s convictions for aggravated robbery and aggravated
burglary. Regarding the aggravated assault charge against Pandora Powell, the proof at trial
established that Powell first saw Richardson when he entered the “hair room” carrying a
“chrome” .44 magnum. She then witnessed Richardson throw Allen down before he reached
into Powell’s brassiere and took twenty dollars from her. Powell testified that she believed
that Richardson was going to kill them all because he was not wearing a mask. Accordingly,
in the event that the Tennessee Supreme Court determines that there was not a constructive
amendment of the indictment on this charge, we conclude that the evidence was sufficient
to convict Richardson of aggravated assault by fear of imminent bodily injury. However, we
also conclude that no proof was presented at trial to support Richardson’s conviction under
the element of aggravated assault by bodily injury as charged in the indictment.

       Richardson also argues that the evidence is insufficient to support his conviction for
unlawful possession of a handgun by a felon because the stipulation at trial regarding this
offense contained an error, namely that the indictment number in the instant case was 05-
03372 rather than 05-03373. As relevant here, in order to convict a person of the offense of
unlawful possession of a handgun by a convicted felon, the State must prove beyond a
reasonable doubt that the defendant: (1) possessed a handgun and (2) had been convicted of

                                             -17-
a felony involving the use or attempted use of force, violence or a deadly weapon. See id.
§ 39-17-1307(b)(1)(A) (2003). We agree with the State that the discrepancy in the
stipulation is merely a clerical error that does not affect the validity of the stipulation.
Moreover, we agree that Richardson does not contest that he was actually convicted of
aggravated robbery, the underlying offense, on February 10, 1998. Finally, we agree that
Richardson’s failure to raise a contemporaneous objection regarding the stipulation resulted
in waiver of this issue. See Tenn. R. App. P. 36(a). Accordingly, the evidence is sufficient
to support this offense.

                                     CONCLUSION

       Upon review, the judgments for aggravated robbery, aggravated burglary, and
unlawful possession of a handgun by a convicted felon are affirmed. However, because a
constructive amendment of the indicted charge of aggravated assault in Count 3 occurred,
we reverse and vacate the judgment for aggravated assault and remand this matter for the
purpose of allowing the trial court to restructure the manner of service of the remaining
sentences to include consecutive sentences, if the court deems it to be appropriate.




                                                   __________________________________
                                                   CAMILLE R. McMULLEN, JUDGE




                                            -18-
