        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                    May 8, 2012 Session

                STATE OF TENNESSEE v. ERIC LEBRON HALE

                   Appeal from the Circuit Court for Marion County
                      No. 8710-A     Thomas W. Graham, Judge




                 No. M2011-02138-CCA-R3-CD - Filed August 31, 2012


A Marion County Circuit Court jury convicted the defendant, Eric Lebron Hale, of
aggravated robbery, and the trial court imposed a sentence of 17 years’ incarceration. In this
appeal, the defendant challenges the sufficiency of the convicting evidence and contends that
the jury instructions provided by the trial court resulted in an improper constructive
amendment to the indictment, that a fatal variance existed between the indictment and the
proof adduced at trial, that the trial court erred by admitting the testimony of a certain
witness, that the trial court committed errors in jury instructions granted and refused, and that
the cumulative effect of the errors deprived him of the right to a fair trial. Because the
evidence was insufficient to support the defendant’s conviction of aggravated robbery as it
was charged in the indictment, and because the jury instructions on the offense of aggravated
robbery resulted in an improper constructive amendment of the indictment, and because a
fatal variance existed between the indictment and proof adduced at trial, the defendant’s
conviction of aggravated robbery is reversed. In its stead we impose a conviction of the
lesser included offense of theft of property valued at $500 or less and remand the case to the
trial court for a sentencing hearing on the newly-imposed misdemeanor conviction.

    Tenn. R. App. P. 3; Judgment of the Circuit Court Reversed and Remanded

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS and J EFFREY S. B IVINS, JJ., joined.

B. Jeffrey Harmon, District Public Defender; and Philip A. Condra, Assistant District Public
Defender, for the appellant, Eric Lebron Hale.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney
General; J. Michael Taylor, District Attorney General; and Julia Veal and David McGovern,
Assistant District Attorneys General, for the appellee, State of Tennessee.
                                          OPINION

              A Marion County Circuit Court jury convicted the defendant of aggravated
robbery for taking $359 from cashier Rita Waters at the Whitwell BP convenience store.

                At the joint trial of the defendant and co-defendant, Charles Battle, Rita Waters
testified that on October 31, 2009, she was working as a cashier at the Whitwell BP when
Billy Thomas, whom she had known for “30 something years,” came into the store to
purchase Halloween candy. She directed Mr. Thomas to the candy, and as she was talking
to Mr. Thomas, the defendant came into the store “dressed in camouflage.”

              Ms. Waters said that she greeted the defendant and asked if he needed any
assistance. She described what happened next:

              Then that’s when he handed me the envelope. In the envelope
              it says: Please give me all your money. Well, I still looked at
              him kind of funny, because it was Halloween, I thought it was
              a joke. And he started shaking his head. I said okay. Then he
              took his hand and he pounded – patted his right pocket. Then I
              looked at him again. I thought he’s got something in his pocket.
              And he shook his head again, and I thought okay. He says,
              “Give me your money.” So I stepped back over to the cash
              register, which is right here, and I opened the drawer and handed
              him the money, and put it in the envelope.

Referring to the defendant’s patting his side, she said, “I know he actually had something in
there, or he wouldn’t have done that. Maybe it was a warning signal to me if I didn’t do
something, you know, I might get hurt or something. . . . I know there was something
actually in that pocket, because of the way his action was on his face.” Ms. Waters testified
that she did not depress the “panic button” because the defendant said, “Don’t trigger the
alarm.” She said that she gave the defendant “between 3 and $400” and that the defendant
put the envelope containing the money into his jacket and walked out the door.

               Mr. Thomas, she said, had left the store before the encounter and was in the
parking lot. After the defendant walked out the door, Ms. Waters triggered the alarm, picked
up the telephone, and ran into the parking lot. Once outside, she saw a gold-colored “Town
Car[] or big old Cadillac” that she knew to belong to store regular and co-defendant Charles
Battle pull from the side area of the store to the store’s driveway. She said that Mr. Thomas
got into his truck and followed the men.



                                               -2-
               During cross-examination, Ms. Waters testified that the store was equipped
with surveillance cameras, but the cameras were inoperable on the day of the offense. She
said that she began her shift with $100 and that $259 was added to the till before the robbery.
Ms. Waters conceded that she never saw the defendant in possession of a weapon of any kind
and that the defendant made no verbal reference to any weapon and simply patted his pocket.
Ms. Waters testified that she never saw the defendant with a knife sheath. Ms. Waters said
that a manager at the store used the store’s computer to determine that $359 was missing
from the till.

               Billy Thomas testified that he went to the Whitwell BP on Halloween 2009 to
purchase gasoline for his truck and candy for trick-or-treaters. He said that he started the
pump and went into the store for the candy. Because the BP did not have what he was
looking for, he went back to his truck. He recalled that as he walked out, a black man got
out of a car that had pulled up to the front door. Mr. Thomas said that he went back to his
truck, and as he turned around to return the hose to the pump, he “[s]aw the gentleman
jumped in the car and then Rita came running out behind him.” Seeing this, Mr. Thomas
“took off” after the “champagne-colored Lincoln Continental.” As he followed the car, he
telephoned 9-1-1, told them the BP had been robbed, and described the vehicle. He said that
he was able to keep up with the vehicle because of traffic in the way. Eventually, however,
the car began to pull away from him. He testified that police arrived and began to follow the
car. He continued to go in the direction of the police chase, and he saw that the car had been
pulled over by police and that the defendant and co-defendant were out of the vehicle.

               Jasper Police Department Officer Douglas Henderson testified that he was
working as a patrolman on Halloween 2009 when he heard the dispatch about a robbery at
the Whitwell BP. Shortly thereafter, he observed a gold Lincoln Town Car drive past the
cemetery where he had parked his car. He immediately pulled out behind the car and
activated his emergency equipment. Officer Henderson said that the Town Car did not yield
to his emergency equipment, so he continued to follow the car until it eventually came to a
stop. During the chase, the car drove through a subdivision packed with trick-or-treaters
before it came to a stop. Two police vehicles that had entered the subdivision via a second
entrance actually blocked the suspect vehicle.

              Officer Henderson testified that he approached the car from the passenger’s
side, “jerked open the door,” and “[o]rdered the passenger down on the ground.” The
passenger, who he identified as the defendant, complied with the order and was immediately
handcuffed. Officer Henderson said that he then helped the defendant to his feet and
provided him with Miranda warnings. In response to being read his rights, the defendant
said, “Take me to prison.” During a search of the defendant’s person, Officer Henderson
discovered “a hunting knife in a scabbard that was on his belt” near his right hip. He also

                                              -3-
found more than $300 in the defendant’s pocket comprised of “some 20s, some10s, a lot of
ones, maybe some fives.”

              At the conclusion of this testimony, the State rested.

               Charles Battle, the 60-year-old co-defendant, testified on his own behalf that
he had known the defendant’s father for years but only met the defendant “[a] night or two
before Halloween.” On Halloween, the defendant asked him for a ride to Whitwell, telling
Mr. Battle that “he had to go pick up some money from the lady at the BP, that she owed him
some money.” Mr. Battle said that he drove the defendant to the BP and waited in the
parking lot while the defendant went into the store. When the defendant came out of the BP,
he told Mr. Battle to “go fast.” At that point, Mr. Battle testified, he began to suspect that
something was amiss, but he nevertheless complied because he was afraid. As they drove
away, the defendant told him that he had robbed the BP. Mr. Battle said that he did not stop
for police because he was afraid of the police and of the defendant. He said that after his
arrest and release from custody, he went to the BP and apologized to Ms. Waters.

             During cross-examination, Mr. Battle said that he did not see the defendant
with an envelope or with a weapon.

                Monica Sha testified that she owned the Whitwell BP and that the money found
by police, $359, matched exactly the amount of money taken from the Whitwell BP. She
said that this was the first time that her security system had gone out. She testified that Ms.
Waters had no access to the security system. She suspected that the manager that she had just
fired for stealing money from the store had tampered with the system.

                The 39-year-old defendant testified that he was dressed in camouflage on
Halloween 2009 because he had been scouting deer for bow hunting. He said that after he
finished scouting, he asked Mr. Battle, whom he had known for “a couple of days,” for a ride
to Whitwell. The defendant claimed that his purpose in going to Whitwell was to get money
from Ms. Waters that she owed him for marijuana. He said that when he walked into the BP,
Ms. Waters, who “already knew [he] was coming to get the money,” “took the money out of
the cash register and gave it to” him. The defendant denied giving Ms. Waters a note
demanding the money and said that Ms. Waters placed the money into his hand and did not
put it into an envelope. The defendant testified that he put the money in his pocket and left
the store. The defendant claimed that he did not speak to Ms. Waters at all during their
encounter and that he made no attempt to conceal his face because he had “no reason to.”
He said that when he returned to Mr. Battle’s car, he told Mr. Battle, “Let’s go. . . . I’m
ready.” The defendant testified that when he saw Mr. Thomas’ truck following them, he
thought that his drug dealing had been discovered by the drug task force. He said that before

                                              -4-
he went to Whitwell, he had “[l]ike $160, $170” in cash in his pocket. The defendant said
that he thought he had been set up by Ms. Waters.

               Based upon this proof, the jury convicted the defendant of aggravated robbery.1
Following a sentencing hearing, the trial court imposed a Range II sentence of 17 years’
incarceration.

                The defendant filed a timely but unsuccessful motion for new trial followed by
a timely notice of appeal. In this appeal, he contends that the evidence was insufficient to
support his conviction, that the trial court improperly amended the indictment without the
defendant’s consent, that the trial court erred by redacting the indictment when providing its
instructions to the jury, that there was a fatal variance between the indictment and the proof
adduced at trial, that the trial court erred by admitting the testimony of Officer Henderson,
that the trial court erred by failing to provide jury instructions on missing witnesses and
accomplice testimony and by providing a jury instruction on flight, and that cumulative errors
deprived him of the right to a fair trial. We consider each claim in turn.

                                            I. Sufficiency

               The defendant first asserts that the evidence adduced at trial was insufficient
to support his conviction, claiming that the State failed to establish that he used or displayed
a deadly weapon, that he took the money from Ms. Waters by violence, or that the property
taken was owned by “Rita Waters dba Whitwell BP.” The State contends that the evidence
supported the verdict of the jury.

                We review the defendant’s claim mindful that our standard of review is
whether, after considering 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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324 (1979); State v.
Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). “[D]irect and circumstantial
evidence should be treated the same when weighing the sufficiency of such evidence.” State
v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011).

             When examining the sufficiency of the evidence, this court should neither
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact.
Winters, 137 S.W.3d at 655. Questions concerning the credibility of the witnesses, the
weight and value of the evidence, as well as all factual issues raised by the evidence are



       1
        Mr. Battle, originally charged with aggravated robbery, felony reckless endangerment, and felony
evading arrest, was convicted only of reckless driving as a lesser included offense of evading arrest.
                                                  -5-
resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
Significantly, this court must afford the State the strongest legitimate view of the evidence
contained in the record as well as all reasonable and legitimate inferences which may be
drawn from the evidence. Id.

               As charged in this case, “[a]ggravated robbery is robbery as defined in §
39-13-401 . . . [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) (2006).2 Robbery, as charged in this case, “is the intentional or knowing theft of
property from the person of another by violence.” Id. § 39-13-401(a).3 “A person commits
theft of property if, with intent to deprive the owner of property, the person knowingly
obtains or exercises control over the property without the owner’s effective consent.” Id. §
39-14-103(a).

                                       A. Deadly Weapon

              The defendant alleges that the evidence was insufficient to support his
conviction because the State failed to establish that the defendant used or displayed an item
in a fashion designed to lead the victim to reasonably believe it was a deadly weapon, the
modality of aggravated robbery as charged in the present case. The State contends that “the
defendant’s action of patting his pocket to reinforce his demand for money led Rita Waters
to believe he was armed.”

               The aggravated robbery statute clearly contemplates the scenario in which a
robbery is accomplished not by the brandishing of an actual deadly weapon but by some
action on the part of the defendant to lead the victim to reasonably believe that the defendant
is armed with a deadly weapon. This court has affirmed convictions of aggravated robbery
when the defendant’s demand for money coupled with his maintaining a hand in his pocket,
even when the hand was not positioned to evoke the image of a gun or any other weapon, led
the victim to reasonably believe the defendant was armed, often by verbally threatening to
harm the victim. See, e.g., State v. Aaron Cooper, No. 01C01-9708-CR-00368, slip op. at
7 (Tenn. Crim. App., Nashville, Sept. 29, 1998) (defendant “held his hand in the waistband
of his pants ‘as if he had a weapon,’ and said . . . ‘Don’t make me have to hurt you’”); State
v. Frederick Corlew, No. M2001-00842-CCA-R3-CD, slip op. at 4 (Tenn. Crim. App.,



       2
        The indictment in this case alleges that the defendant committed robbery “by violence and
accomplished with a deadly weapon, or display of any article used or fashioned to lead the victim to
reasonably believe it to be a deadly weapon.”
       3
           See fn. 2.
                                                -6-
Nashville, Nov. 1, 2002) (defendant kept “his right hand . . . in his right pants pocket as he
came in and [it] remained there as he walked past the cash register and even after he came
around the counter and was standing with the victim, demanding her to ‘open the register’”).
We have observed that the “common threads” in those cases where no actual deadly weapon
was displayed “are: 1) a hand concealed in an article of clothing; and 2) a threat – express
or implied – that caused the victim to ‘reasonably believe’ the offender had a deadly weapon
and was not opposed to using it.” State v. Monoleto D. Green, No. M2003-02774-
CCA-R3-CD, slip op. at 10 (Tenn. Crim. App., Nashville, May 5, 2005).

               In this case, the defendant did not keep his hand in his pocket or under his
clothing during his encounter with Ms. Waters and did not communicate any verbal threat
to harm her. That being said, the defendant, dressed entirely in camouflage, patted his right
pocket, shook his head, and said, “Give me your money,” after Ms. Waters initially did not
comply with his written demand that she give him the money in the cash register. Ms.
Waters testified that the defendant’s patting his pocket as well as his demeanor led her to
believe that he was armed and that she complied with his demand for money because she was
afraid that she “might get hurt or something” if she did not comply. The absence of a verbal
threat of harm or statement indicating possession of a deadly weapon is not, in our view,
automatically fatal to an aggravated robbery prosecution in which the weapon is not actually
seen when the non-verbal evidence of deadly weapon possession is otherwise sufficient to
support the conviction. People v. Jolly, 502 N.W.2d 177, 182 (Mich. 1993) (“The existence
of some object, whether actually seen or obscured by clothing or something such as a paper
bag, is objective evidence that a defendant possesses a dangerous weapon or an article used
or fashioned to look like one. Related threats, whether verbal or gesticulatory, further
support the existence of a weapon or article.”). It is our view that the defendant’s dress,
demeanor, demand for money, and patting his pocket were sufficient to support the jury’s
finding that he displayed an article in a manner fashioned to lead Ms. Waters to reasonably
believe that he possessed a deadly weapon.

                                         B. Violence

               The defendant asserts that the State failed to establish that he accomplished the
crime by violence, as alleged in the indictment. The State does not address this part of the
defendant’s challenge to the sufficiency of the evidence, stating only that “the proof was
sufficient to permit the jury to infer that the defendant accomplished the robbery by threat
of force accompanied by a deadly weapon.”

               Simple robbery, and aggravated robbery by extension, may be accomplished
by either violence or putting the victim in fear. See id. § 39-14-401(a); -402(a). In this case,
however, the indictment charged that the defendant committed the robbery by violence

                                              -7-
against Ms. Waters. Violence, as used in the robbery statute, is afforded its “plain meaning,
i.e., physical force that is unlawfully exercised or exerted so as to injure, damage or abuse.”
State v. Fitz, 19 S.W.3d 213, 215 (Tenn. 2000). Unfortunately, the trial court erroneously
instructed the jury that it could convict the defendant on a finding that he committed a theft
“by the use of violence or putting the person in fear.” The record is clear, however, that the
indictment alleged only the “by violence” mode of aggravated robbery. As such, our
consideration of the sufficiency of the evidence is confined to that modality. At trial, Ms.
Waters testified that the defendant entered the Whitwell BP, handed her an envelope
demanding money, and patted his pocket in a manner that caused her to believe that he
possessed a weapon. Although “pointing a deadly weapon at the victim constitutes
‘violence’ as used in the offense of robbery pursuant to Tenn[essee] Code Ann[otated] §
39-13-401,” State v. Allen, 69 S.W.3d 181, 185 (Tenn. 2002), the defendant did not point
anything at Ms. Waters. Ms. Waters candidly admitted that she did not see any weapon and
that the defendant did not verbally threaten her with physical harm. Given that there was no
physical force exerted against Ms. Waters by the defendant and that the defendant did not
point or brandish a weapon at Ms. Waters, the evidence failed to establish that the robbery
was committed by violence. Accordingly, the evidence was insufficient to support the
defendant’s conviction of aggravated robbery.

              Moreover, in the absence of proof of violence as alleged in the charging
instrument, the evidence was insufficient to support a conviction of the lesser included
offense of robbery. The proof did sufficiently establish, however, that the defendant took
$359 that belonged to Whitwell BP without consent to do so. Thus, we reduce the
defendant’s conviction of aggravated robbery to a conviction of theft of property valued at
$500 or less.

                                       C. Ownership

               Finally, the defendant avers that the evidence was insufficient to support his
conviction because the State failed to establish ownership of the property taken as it was
alleged in the indictment. The State that asserts proof of ownership of the property taken is
not essential to a conviction of aggravated robbery. Although this court has said in
commenting on the theory of robbery that “[i]t is the ‘manner in which property is taken,
rather than to whom it lawfully belongs, [which] is the issue in robbery offenses,’” State v.
Maurice Leonard and Kenneth Shondale Mason, No. M2006-00136-CCA-R3-CD, slip op.
at 5 (Tenn. Crim. App, Nashville, Mar. 27, 2007) (quoting State v. Anthony Murff, No.
W2001-01459-CCA-R3-CD, slip op. at 8 (Tenn. Crim. App., Jackson, June 11, 2002) (citing
State v. Cannon, 661 S.W.2d 893, 899 (Tenn. Crim. App. 1983)), theft, which is included in
every charge of robbery, requires proof that the property was taken without the effective
consent of the owner and with the intent to deprive the owner of the property, see T.C.A. §

                                              -8-
39-14-103.

                Here, as noted above, the indictment charged that the defendant took the
property of “Rita Waters dba Whitwell BP.” The State offered testimony from Ms. Sha, the
owner of the Whitwell BP, that the defendant did not have her consent to take the $359, and
the defendant himself testified that he intended to keep the money. Similarly, Ms. Waters
testified that she gave the defendant money from the cash register only because she believed
him to be armed and feared for her safety should she fail to comply with his demand for
money.

                That the State failed to prove the business relationship between Ms. Waters and
Whitwell BP does not result in an insufficiency of the evidence because proof of that
relationship was not a necessary element of aggravated robbery. Our criminal Code defines
the term “owner” as “a person, other than the defendant, who has possession of or any
interest other than a mortgage, deed of trust or security interest in property, even though that
possession or interest is unlawful and without whose consent the defendant has no authority
to exert control over the property.” T.C.A. § 39-11-106(a)(26). “Also, an owner’s
possession of the property may be ‘actual or constructive.’” State v. March, 293 S.W.3d 576,
592 (Tenn. Crim. App. 2008) (citing T.C.A. § 39-14-401(3); State v. Joel Christian Parker,
No. M2001-00773-CCA-R3-CD (Tenn. Crim. App., Nashville, Dec. 18, 2002); State v.
Gordon Scott Katz, No. E1999-01220-CCA-R3-CD (Tenn. Crim. App., Knoxville, Oct. 2,
2000)). Under the circumstances of this case, ownership sufficient to satisfy the
requirements of the theft statute could lie with either Ms. Waters or with Ms. Sha operating
via the tradename Whitwell BP. March, 293 S.W.3d at 592 (citing Stafford v. State, 489
S.W.2d 46, 47 (Tenn. Crim. App. 1972)).

             Because the proof established that the defendant took the money without the
owner’s consent and with an intent to deprive the owner of the property, we have no trouble
imposing a conviction of theft of property valued at $500 or less.

                                        II. Indictment

               The defendant contends that the jury instructions provided by the trial court
resulted in constructive amendment of the indictment and that a fatal variance existed
between the offense alleged in the indictment and the proof adduced at trial. We begin our
consideration of these issues by noting that the problems in this case, including the deficiency
in the proof requiring reversal of the conviction of aggravated robbery, can be attributed
directly to the poor drafting of the indictment in this case.

              First, the indictment failed to allege that the aggravated robbery was

                                              -9-
accomplished by “putting in fear” and instead alleged only that it was accomplished by
violence, despite that Ms. Waters, even in her earliest account of the offense provided to
officers on the scene, did not allege any fact that would support a finding of violence.
Despite that the indictment alleged only the “violence” mode of aggravated robbery, the trial
court instructed the jury that it could convict the defendant on a finding that he accomplished
the theft by “putting in fear.” As we indicated during our sufficiency analysis, however,
because the indictment charged only that the defendant took the property “by violence,”
evidence that the defendant took the money by putting Ms. Waters in fear was insufficient
to support his conviction. See Fitz, 19 S.W.3d at 215 (“The indictment in this case charged
only that the offense was committed by violence - it did not charge that the offense was
committed by putting the victim in ‘fear.’ Accordingly, even though in many robbery cases
the evidence will satisfy both prongs, we address in this case only the definition of ‘violence’
and whether the evidence satisfies that definition.”).

               Second, for reasons that are not clear from the record, the indictment alleged
that the robbery was perpetrated against “Rita Waters dba Whitwell BP.” We speculate that
the inclusion of the “dba Whitwell BP” language was an attempt, albeit inept, to address the
ownership of the money taken from Ms. Waters. Strictly speaking, the allegation in the
indictment was incorrect because Ms. Waters was not doing business as Whitwell BP; she
was an employee of Ms. Sha, and we glean from Ms. Sha’s testimony that her business was
a sole proprietorship doing business as Whitwell BP. As we will explain below, the inclusion
of this completely unnecessary language led to yet another jury instruction error by the trial
court.

              Although we have dispensed with the strict pleading requirements for
indictments, see State v. Carter, 121 S.W.3d 579, 587 (Tenn. 2003) (citing State v. Hill, 954
S.W.2d 725, 727 (Tenn. 1997)), standards still exist. Prosecutors should take care when
formulating indictments to ensure that the offense alleged matches the proof that can be
adduced at trial. State v. Goodson, 77 S.W.3d 240, 244 (Tenn. Crim. App. 2001) (“not only
must the government prove the crime it charges, it must charge the crime it proves”)
(emphasis added). Here, the proof sufficiently showed that the defendant committed
aggravated robbery by putting Ms. Waters in fear, but the State charged the defendant with
aggravated robbery solely by violence.

              Here, the indictment alleged that the defendant

              did unlawfully, intentionally, and knowingly obtain property,
              good and lawful U.S. currency, from the person of Rita Waters
              dba Whitwell BP, by violence and accomplished with a deadly
              weapon, or display of any article used or fashioned to lead the

                                              -10-
              victim to reasonably believe it to be a deadly weapon with the
              intent to deprive the said Rita Waters dba Whitwell BP of the
              property without Rita Waters dba Whitwell BP effective
              consent.

The proof adduced at trial established that the defendant took $359 dollars from Ms. Waters,
an employee of the Whitwell BP, without the effective consent of either Ms. Waters or Ms.
Sha, the owner of the Whitwell BP, by putting Ms. Waters in fear. The trial court instructed
the jury that it could convict the defendant of aggravated robbery if it found the following
beyond a reasonable doubt:

              (1) that the defendant knowingly obtained or exercised control
              over property owned by Whitwell BP, and
              (2) that the defendant did not have the owner’s effective
              consent; and
              (3) that the defendant intended to deprive the owner of the
              property, and
              (4) that the defendant took such property from the person of
              another by the use of violence or putting the person in fear; and
              (5) that the defendant took such property intentionally and
              knowingly; and
              (6) that the defendant accomplished this act with a deadly
              weapon or by display of any article used or fashioned to lead the
              alleged victim to reasonably believe it to be a deadly weapon.

               A variance results when the evidence at trial does not correspond to the offense
alleged in the charging instrument. State v. Keel, 882 S.W.2d 410, 416 (Tenn. Crim. App.
1994). In many such cases, the evidence establishes the commission of an offense different
from the offense alleged in the charging instrument. See id. The variance rule is predicated
upon the theory that an accused cannot be charged with one offense and convicted of a
completely different offense. See id.

               In the past, Tennessee had followed “a rather stringent variance rule, and if a
person or thing necessary to be mentioned in an indictment is described with greater
particularity than is requisite, such person or thing must be proved exactly as described in the
indictment.” Bolton v. State, 617 S.W.2d 909, 910 (Tenn. Crim. App. 1981). “The policy
now followed in this and in most other jurisdictions,” however, “is that before a variance will
be held to be fatal it must be deemed to be material and prejudicial.” State v. Moss, 662
S.W.2d 590, 592 (Tenn. 1984). Moreover,



                                              -11-
              [a] variance between an indictment and the proof in a criminal
              case is not material where the allegations and proof substantially
              correspond, the variance is not of a character which could have
              misled the defendant at trial and is not such as to deprive the
              accused of his right to be protected against another prosecution
              for the same offense.

Id.

                Generally, unless the matters alleged in the indictment are essential elements
of the crime, they may be disregarded in analyzing the sufficiency of the convicting evidence.
Church v. State, 333 S.W.2d 799, 809 (Tenn. 1960).

               When the essential elements of an offense alleged in an indictment differ from
the facts established at trial, the variance has been described as resulting in a constructive
amendment.

              [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. Again, “not only must the government prove the crime it
charges, it must charge the crime it proves” and “after an indictment has been returned, its
charge may not be broadened or changed except by action of the grand jury.” Id. (citations
omitted). A constructive amendment of the indictment, not consented to by the defendant,
by definition results in a fatal variance because it does not accomplish the “overriding
purpose of notice to the accused” required of an indictment. See State v. Hammonds, 30
S.W.3d 294, 300 (Tenn. 2000).

                                       A. Amendment

              The defendant contends that the trial court erred by amending the indictment

                                             -12-
without his consent. He claims that the trial court amended the indictment by omitting any
reference to Ms. Waters in its instructions to the jury and listing Whitwell BP as the sole
victim of the crime alleged. The State contends that the defendant has waived plenary review
of this issue by failing to include the transcript of the hearing on the motion for new trial in
the record on appeal. In the alternative, the State contends that the jury instructions did not
have the effect of constructively amending the indictment.

               We cannot say that the trial court’s omission of Ms. Waters’ name from the
jury instructions resulted in a constructive amendment of the indictment because the omission
did not have the effect of modifying an element of the crime charged. As discussed earlier,
both Ms. Waters and Whitwell BP satisfied the definition of owner as that term is defined
relevant to theft and, by extension, aggravated robbery. Moreover,

              aggravated robbery is not classified as an offense based upon its
              perpetration against certain classes of individuals . . . . In other
              words, the identity of the victim does not serve to identify the
              crime. Thus, the identity of the victim is not an essential
              element of the crime, and the charging instrument is not
              defective merely for failing to identify the victim.

State v. Clark, 2 S.W.3d 233, 235 (Tenn. Crim. App. 1998). If the identity of the victim need
not be part of the charging instrument, then the omission of Ms. Waters’ name cannot be said
to operate as a constructive amendment of the indictment.

               That being said, we perceive that a part of the trial court’s instructions to the
jury did operate as a constructive amendment of the indictment. The indictment in this case
alleged only the “by violence” mode of robbery and did not include an allegation that the
defendant committed the crime by “putting in fear.” Despite the particularity of the
indictment, the trial court instructed the jury that it could convict the defendant of aggravated
robbery by “the use of violence or putting the person in fear.” Because this instruction
modified an essential element of the charged crime in a manner that permitted the jury to
convict the defendant “on a ground not charged in the indictment,” see Goodson, 77 S.W.3d
at 244, it resulted in a constructive amendment of the indictment. By alleging a specific
mode of liability, the State was obliged to prove that mode of liability and was precluded
from achieving a conviction under a mode of liability different than that alleged in the
indictment. See, e.g., State v. Paul Richardson, W2008-02506-CCA-R3-CD (Tenn. Crim.
App., Jackson, Sept. 29, 2010) (constructive amendment and fatal variance occurred when
the trial court instructed the jury on aggravated assault by intentionally and knowingly
causing another to reasonably fear imminent bodily injury but the indictment charged the
defendant with aggravated assault by knowingly causing bodily injury to another), perm. app

                                              -13-
denied (Tenn. Mar. 29, 2011); State v. Jamie Roskom, M2006-00764-CCA-R3-CD (Tenn.
Crim. App., Nashville, Feb. 9, 2007) (constructive amendment and fatal variance occurred
in prosecution of violation of the sexual offender registry act when indictment alleged failure
to timely register but proof showed the defendant’s failure to report to local law enforcement
agency within a week of his birthday); State v. Atta Najjar, W2003-00329-CCA-R3-CD
(Tenn. Crim. App., Jackson, Jan. 21, 2004) (constructive amendment and fatal variance
occurred when jury instruction in aggravated rape case allowed conviction based upon a
theory of aggravated rape not alleged in the indictment), perm. app denied (Tenn. June 1,
2004).

             As this court explained in Goodson, “reversal is automatic,” Goodson, 77
S.W.3d at 244, and we reverse the conviction of aggravated robbery.

               We have already concluded that the defendant’s conviction of aggravated
robbery must be reversed and have imposed a conviction of the lesser included offense of
theft of property valued at $500 or less. In our view, the imposition of a conviction of theft
of property valued at $500 or less is the appropriate disposition even in light of our finding
that the trial court’s instruction resulted in an improper constructive amendment of the
indictment.4

              First, the indictment itself, although poorly drafted, is not void, and our ruling
regarding its constructive amendment does not render it so. The term “constructive
amendment” as applied by the courts to trying a case on elements different from those
expressed in the charging instrument is somewhat misleading because the term implies that
an amendment effectively occurred when the opposite is actually the import of the term.
Thus, our ruling does not touch upon the validity of the initial charging instrument. Second,
that instrument, by charging aggravated robbery, necessarily charged the defendant with theft
of property valued at $500 or less, and that lesser charge was unaffected by the trial court’s
erroneous instruction. Third, ample proof supports a conclusion that the defendant
committed the offense of theft of property valued at $500 or less, and the jury necessarily so
found. Finally, the imposition of a theft conviction does not result in the defendant’s
standing convicted of an offense not charged in the indictment.




        4
         This court has been inconsistent in the disposition of cases where convictions are reversed on the
basis of a constructive amendment of the indictment. See, e.g., Goodson, 77 S.W.3d at 245 (conviction
reversed); Paul Richardson, slip op. at 14 (conviction reversed and vacated); Jamie Roskom, slip op. at 5
(conviction reversed and case dismissed); Atta Najjar, slip op. at 6 (conviction reversed and case remanded
for new trial).
                                                   -14-
                                         B. Variance

               The defendant also contends that a fatal variance existed “between the
allegation of ownership of money and the proof at trial.” As we discussed more fully above,
both Ms. Waters and Whitwell BP satisfied the definition of “owner” as that term is used in
the Code. The erroneous business relationship alleged in the indictment was not an element
of the crime charged and, as a result, can be deemed surplusage.

              In this context, ‘surplusage’ denotes surplus language in the
              charging instrument. In certain circumstances, such surplusage,
              in and of itself, may implicate insufficiency of the charging
              instrument as opposed to insufficiency of the convicting
              evidence; however, an indictment is not defective because of the
              inclusion of surplusage if, after eliminating the surplusage, the
              offense is still sufficiently charged.

March, 293 S.W.3d at 588 (citing State v. Culp, 891 S.W.2d 232, 236 (Tenn. Crim. App.
1994)). Here, removal of the erroneous language regarding the business relationship between
Ms. Waters and the Whitwell BP would not result in a deficient charging instrument. The
defendant is not entitled to relief on this issue.

                We have already discussed the reversible error attendant to the trial court’s
instructing the jury on the “putting in fear” mode of committing aggravated robbery, but we
observe that a fatal variance existed between the indictment, which charged aggravated
robbery solely by violence, and the proof, which established that the defendant committed
the crime by putting in fear. The defendant’s conviction of aggravated robbery is reversible
on this basis alone, had we not already reversed it for an insufficiency of the evidence and
an inappropriate constructive amendment of the indictment. That being said, we remain
satisfied that the appropriate disposition is the imposition of a conviction of theft of property
valued at $500 or less.

                            III. Testimony of Officer Henderson

               The defendant also challenges the testimony of Officer Henderson. First, he
claims that the trial court erred by permitting Officer Henderson to testify in violation of Rule
615 of the Tennessee Rules of Evidence. Second, he asserts that the trial court erred by
allowing Officer Henderson to testify about the statement that the defendant made following
his arrest. The State contends that there is no merit to either claim.




                                              -15-
                                         A. Rule 615

               The defendant avers that the trial court should not have permitted Officer
Henderson to testify at trial because he had remained seated at counsel table with the
prosecutor during the trial without having been designated “prosecutor” by the State. He
claims that because Officer Jim Nunley’s name was included on the indictment, only Officer
Nunley could have been designated “prosecutor” and permitted to sit at counsel table during
the trial. The State contends that the defendant waived consideration of this issue by failing
to lodge a timely objection and by failing to include the transcript of the hearing on the
motion for new trial. The State also contends there was no error and, in the alternative, that
any error would have been harmless.

              Rule 615 of the Tennessee Rules of Evidence governs the exclusion of
witnesses during a trial or hearing:

              At the request of a party the court shall order witnesses,
              including rebuttal witnesses, excluded at trial or other
              adjudicatory hearing. In the court’s discretion, the requested
              sequestration may be effective before voir dire, but in any event
              shall be effective before opening statements. The court shall
              order all persons not to disclose by any means to excluded
              witnesses any live trial testimony or exhibits created in the
              courtroom by a witness. This rule does not authorize exclusion
              of (1) a party who is a natural person, or (2) a person designated
              by counsel for a party that is not a natural person, or (3) a person
              whose presence is shown by a party to be essential to the
              presentation of the party’s cause. This rule does not forbid
              testimony of a witness called at the rebuttal stage of a hearing if,
              in the court’s discretion, counsel is genuinely surprised and
              demonstrates a need for rebuttal testimony from an
              unsequestered witness.

Tenn. R. Evid. 615. The rule permits “the prosecuting attorney [to] designate a crime victim,
a relative of a crime victim, or an investigating officer” to remain in the courtroom and even
at counsel table. See id., Advisory Comm’n Comments. “The trial court may, as a sanction,
exclude the testimony of a witness who hears other testimony while subject to a sequestration
order.” State v. Black, 75 S.W.3d 422, 424 (Tenn. Crim. App. 2001). “The generally
accepted procedure in Tennessee . . . is for the court to hold a jury-out hearing to determine
both the facts of the violation and whether a party was prejudiced by the violation.” Neil P.
Cohen, et al., Tennessee Law of Evidence § 615 [11] [e] (4th ed. 2000). When a

                                             -16-
sequestration rule violation is raised on appeal, this court considers the seriousness of the
violation and the prejudice, if any, suffered by the defendant. Harris, 839 S.W.2d at 68-69.
In the face of a sequestration rule violation complaint, “[t]he decision to exclude or allow the
testimony is a matter within the discretion of the trial court, subject to a showing of abuse
and prejudice to the complaining party.” Black, 75 S.W.3d at 424-25.

               Initially, we note that the defendant has failed to cite any authority for his
proposition that only Officer Nunley could have been designated by the State because his
name appeared as prosecutor on the indictment. Moreover, we can find no authority so
limiting the State’s ability to designate a person to sit at counsel table. In addition, although
the defendant objected to Officer Henderson’s being so designated because he was not the
lead investigator in the case, Rule 615 imposes no such requirement. Finally, the defendant
has failed to establish that, assuming a violation of the rule, the trial court abused its
discretion by permitting Officer Henderson to testify. The defendant is not entitled to relief
on this issue.

                                       B. Defendant’s Statement

             The defendant contends that Officer Henderson should not have been permitted
to convey the defendant’s statement, “Take me to prison,” 5 because although Officer
Henderson provided the defendant with Miranda warnings, the officer did not ask the
defendant whether he wanted to waive those rights. The State asserts that the defendant
waived plenary review of this issue by failing to seek suppression of the statement prior to
trial.

                We agree with the State that the defendant waived consideration of this issue
by failing to seek pretrial suppression of the statement. A motion to suppress evidence must
be filed before trial. Tenn. R. Crim. P. 12(b)(2)(C) (“The following must be raised prior to
trial: . . . [m]otions to suppress evidence . . .”). “Failure by a party to raise defenses or
objections or to make requests which must be made prior to trial . . . shall constitute waiver
thereof, but the court for good cause shown may grant relief from the waiver.” Tenn. R.
Crim. P. 12(f). In addition, the defendant has waived consideration of this issue by failing
to support it with citation to relevant authorities. See Tenn. R. App. P. 27(a)(7) (stating that
the appellant’s brief must contain an argument, “setting forth . . . the contentions of the
appellant with respect to the issues presented, and the reasons therefor, including the reasons
why the contentions require appellate relief, with citations to the authorities and appropriate



        5
         The record establishes that the defendant actually said, “Take me back to prison,” but the trial court
ordered the statement redacted so that the jury would not infer that the defendant had previously spent time
in prison.
                                                     -17-
references to the record . . . relied on; and . . . for each issue, a concise statement of the
applicable standard of review”); Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not
supported by argument, citation to authorities, or appropriate references to the record will be
treated as waived in this court.”).

              Moreover, the record more than adequately establishes that the defendant’s
statement was a spontaneous admission following Officer Henderson’s recitation of the
Miranda warnings. Nothing more was required of the officer as the defendant clearly
evinced a desire to waive his right to remain silent by not remaining silent.

                                    IV. Jury Instructions

               The defendant raises three challenges to the instructions provided by the trial
court: (1) the trial court erred by refusing to provide the missing witness instruction relative
to Officer Jim Nunley and Jasper Police Department Chief Ronnie Davis; (2) the trial court
erred by refusing to provide an accomplice instruction relative to Ms. Waters; and (3) the trial
court erred by providing an instruction on flight. The State contends that the trial court
committed no error in its instructions to the jury.

               An accused’s constitutional right to trial by jury, see U.S. Const. amend VI;
Tenn. Const. art. 1, § 6, encompasses a right to a correct and complete charge of the law, see
State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). The trial court has a duty “to give a
complete charge of the law applicable to the facts of a case.” State v. Harbison, 704 S.W.2d
314, 319 (Tenn. 1986); see Teel, 793 S.W.2d at 249; see also Tenn. R. Crim. P. 30.

              The legal accuracy of the trial court’s instructions is a question of law subject
to de novo review. See Troup v. Fischer Steel Corp., 236 S.W.3d 143, 149 (Tenn. 2007).
The propriety of a given instruction is a mixed question of law and fact to be reviewed de
novo with a presumption of correctness. Carpenter v. State, 126 S.W.3d 879, 892 (Tenn.
2004); State v. Smiley, 38 S.W.3d 521, 524 (Tenn. 2001).

                               A. Missing Witness Instruction

               The defendant claims that the trial court should have provided a missing
witness instruction for Officer Nunley and Chief Davis because Officer Nunley was listed
as the prosecutor on the indictment and because Officer Henderson testified that he had
turned the knife, sheath, and money recovered from the defendant’s person following his
arrest to Chief Davis. The State contends that because the witnesses were equally available
to both parties, the missing witness rule was inapplicable.



                                              -18-
                The prosecution in a criminal case is “under no obligation to produce every
possible witness.” Hicks v. State, 539 S.W.2d 58, 59 (Tenn. Crim. App. 1976). In the
present case, the defendant sought a missing witness instruction because the State declined
to call all witnesses listed on the indictment. See T.C.A. § 40-17-106 (“It is the duty of the
district attorney general to endorse on each indictment or presentment . . . the names of the
witnesses as the district attorney general intends shall be summoned in the cause . . . .”).

              The “missing witness rule” as recognized in Tennessee provides that

              a party may comment about an absent witness when the
              evidence shows ‘that the witness had knowledge of material
              facts, that a relationship exists between the witness and the party
              that would naturally incline the witness to favor the party and
              that the missing witness was available to the process of the
              Court for trial.

State v. Bough, 152 S.W.3d 453, 463 (Tenn. 2004) (quoting Delk v. State, 590 S.W.2d 435,
440 (Tenn. 1979)). “The missing witness rule is premised on the idea that the absent witness,
‘if produced, would have made an intelligent statement about what was observed.’” Dickey
v. McCord, 63 S.W.3d 714, 722 (Tenn. Ct. App. 2001) (quoting State v. Francis, 669 S.W.2d
85, 89 (Tenn. 1984)).

              The “missing witness” or “absent material witness” instruction provides:

              When it is within the power of the [S]tate or the defendant to
              produce a witness who possesses peculiar knowledge
              concerning facts essential to that party’s contentions and who is
              available to one side at the exclusion of the other, and the party
              to whom the witness is available fails to call such witness, an
              inference arises that the testimony of such witness would have
              been unfavorable to the side that should have called or produced
              such witness. Whether there was such a witness and whether
              such an inference has arisen is for you to decide and if so, you
              are to determine what weight it shall be given.

T.P.I.-Crim. 42.16 (15th ed. 2011). Before the instruction may be given, the party requesting
it must establish “that ‘the witness had knowledge of material facts, that a relationship exists
between the witness and the party that would naturally incline the witness to favor the party
and that the missing witness was available to the process of the Court for trial.’” State v.
Bigbee, 885 S.W.2d 797, 804 (Tenn. 1994) (quoting State v. Middlebrooks, 840 S.W.2d 317,

                                              -19-
334-35 (1992)) (internal citation and quotation marks omitted). To justify a missing witness
instruction, “the witness who was not called must not have been equally available to both
parties.” See State v. Boyd, 867 S.W.2d 330, 337 (Tenn. Crim. App. 1992) (citing State v.
Overton, 644 S.W.2d 416, 417-18 (Tenn. Crim. App. 1982); Bolin v. State, 472 S.W.2d 232,
235 (Tenn. Crim. App. 1971)); State v. Eldridge, 749 S.W.2d 756, 758 (Tenn. Crim. App.
1988).

               Here, the trial court refused to provide the missing witness instruction for
Officer Nunley and Chief Davis because the witnesses were equally available to both parties.
The record supports this ruling. Moreover, we reject, as has every other court to consider the
issue, the defendant’s argument that denial of the missing witness instruction when witnesses
are equally available to both parties improperly shifts the burden of proof.

                                 B. Accomplice Instruction

               The defendant asserts that the trial court erred by failing to provide an
instruction on accomplice testimony relative to Ms. Waters. The State contends that the trial
court did not err because there was no proof that Ms.Waters was an accomplice to the
aggravated robbery.

              The defendant testified at trial that he went to the Whitwell BP to get payment
of $200 that Ms. Waters owed him for marijuana and that she took the money from the cash
register to pay him. Defense counsel requested an instruction regarding accomplice
testimony solely on the basis of this testimony, which, he argued, “fairly raised” Ms. Waters’
role as an accomplice. The trial court refused to provide the instruction.

               “It is well-settled in Tennessee that a defendant cannot be convicted solely
upon the uncorroborated testimony of an accomplice.” State v. Bough, 152 S.W.3d at 464
(citing State v. Bane, 57 S.W.3d 411, 419 (Tenn. 2001); Monts v. State, 379 S.W.2d 34, 43
(Tenn. 1964)). By way of explanation, our supreme court has stated:

             There must be some fact testified to, entirely independent of the
             accomplice’s testimony, which, taken by itself, leads to the
             inference, not only that a crime has been committed, but also that
             the defendant is implicated in it; and this independent
             corroborative testimony must also include some fact establishing
             the defendant’s identity. This corroborative evidence may be
             direct or entirely circumstantial, and it need not be adequate, in
             and of itself, to support a conviction; it is sufficient to meet the
             requirements of the rule if it fairly and legitimately tends to

                                            -20-
             connect the defendant with the commission of the crime charged.
             It is not necessary that the corroboration extend to every part of
             the accomplice’s evidence.

Bane, 57 S.W.3d at 419 (quoting Bigbee, 885 S.W.2d at 803); see also State v. Fowler, 373
S.W.2d 460, 463 (Tenn. 1963) (citations omitted).

               “An accomplice is one who knowingly, voluntarily, and with common intent
participates with the principal offender in the commission of a crime.” Bough, 152 S.W.3d
at 464 (citing State v. Lewis, 36 S.W.3d 88, 94 (Tenn. Crim. App. 2000); Conner v. State,
531 S.W.2d 119, 123 (Tenn. Crim. App. 1975)). “[T]he test for whether a witness is an
accomplice is whether the witness could have been convicted of the offense.” Bough, 152
S.W.3d at 464.

               In this case, there was no proof that Ms. Waters “knowingly, voluntarily, and
with common intent” participated with the defendant in the aggravated robbery of the
Whitwell BP. The defendant’s testimony, if believed, could have established that Ms. Waters
took money from the Whitwell BP without Ms. Sha’s consent, proof, at best, that she
committed a theft but not aggravated robbery. In consequence, the trial court did not err by
refusing to provide a jury instruction on accomplice testimony. Moreover, even if the failure
to provide the accomplice instruction was error, it was harmless beyond a reasonable doubt.
The jury obviously did not credit the defendant’s testimony.

                                          C. Flight

                The defendant contends that the trial court should not have instructed the jury
that it could infer guilt from his flight from the Whitwell BP because the defendant was not
driving and did not provide Mr. Battle any instruction on where to go. The State asserts that
the giving of the instruction on flight was appropriate.

               To properly charge the jury on flight as an inference of guilt, there must be
sufficient evidence to support such instruction. State v. Berry, 141 S.W.3d 549, 588 (Tenn.
2004). Sufficient evidence supporting such instruction requires “‘both a leaving of the scene
of the difficulty and a subsequent hiding out, evasion, or concealment in the community.’”
State v. Payton, 782 S.W.2d 490, 498 (Tenn. Crim. App. 1989) (quoting Rogers v. State, 455
S.W.2d 182, 187 (Tenn. Crim. App. 1970) (citing 22A C.J.S. Criminal Law § 625))). Our
supreme court has held that “[a] flight instruction is not prohibited when there are multiple
motives for flight” and that “[a] defendant’s specific intent for fleeing a scene is a jury
question.” Berry, 141 S.W.3d at 589.



                                             -21-
             Here, the evidence established that after the aggravated robbery was complete,
the defendant returned to Mr. Battle’s car and ordered Mr. Battle to drive away quickly.
Although Mr. Battle conceded that the defendant did not direct him where to go during the
ensuing police chase, he maintained that the defendant repeated that he should drive fast.
The defendant himself admitted fleeing from police although he claimed that he did so
because he believed he was going to be apprehended by the drug task force. Under these
circumstances, the trial court did not err by providing an instruction on flight.

                                      V. Other Errors

              In his final issue, which the defendant captions, “Cumulative errors denying
defendant’s right to a fundamentally fair trial,” the defendant points out that he “detailed 18
errors committed during the course of the trial” in his motion for new trial and then fills two
pages with argument related to the prosecutor’s description in closing argument of the knife
possessed by the defendant. Then he argues that Mr. Battle’s “trial testimony was at best
misleading and at worst perjurious,” citing in support of his argument Mr. Battle’s own
testimony during his sentencing hearing on his conviction of reckless driving.

             Despite the caption of his argument, the defendant does not address the
cumulative effect of the alleged errors at his trial and cites no authority in support of his
caption. Accordingly, any review of the cumulative effect of any alleged errors has been
waived.

                With regard to his claim related to Mr. Battle’s testimony, the defendant does
not allege the nature of the error he claims was occasioned by Mr. Battle’s trial testimony,
does not posit any argument for relief, and does not cite any relevant authority. Moreover,
the only material offered in support of his claim of error is the transcript of Mr. Battle’s
testimony at Mr. Battle’s own sentencing hearing, which is not a part of the record in this
case. Although the transcript is appended to the defendant’s brief, we remind the defendant
that items appended to an appellate brief but not made a part of the record cannot be
considered by this court. See State v. Matthews, 805 S.W.2d 776, 783-84 (Tenn. Crim. App.
1990) (“Rule 28, Tennessee Rules of Appellate Procedure, does not contemplate attaching
a transcript of proceedings to a brief when the transcript has not been made a part of the
record.”); see also James Dubose v. Tony Parker, Warden and State of Tennessee,
W2005-01320-CCA-R3-HC, slip op. at 5 (“[D]ocuments attached to appellate briefs but not
certified into the record cannot be considered as part of the record on appeal.”). Under these
circumstances, the defendant has waived consideration of any issue attendant to Mr. Battle’s
testimony.

              With regard to his claim of prosecutorial misconduct during closing argument,

                                             -22-
the defendant complains that the prosecutor should not have been permitted to argue
“specifics about a knife that was never introduced into evidence and no photographs of the
knife were ever introduced by the State.” The State does not address the defendant’s claim
of prosecutorial misconduct and instead focuses its argument on the lack of cumulative error.

                Despite the discretion afforded trial courts in determining the propriety of
closing argument, judges must nevertheless take care to restrict improper argument. State
v. Hill, 333 S.W.3d 106, 130 (Tenn. Crim. App. 2010) (citing Sparks v. State, 563 S.W.2d
564, 569-70 (Tenn. Crim. App. 1978)). Because of the State’s unique role in a criminal case,
the State, in particular, “must refrain from argument designed to inflame the jury and should
restrict its commentary to matters in evidence or issues at trial.” Id. We have consistently
held that closing argument for both parties “‘must be temperate, must be predicated on
evidence introduced during the trial of the case, and must be pertinent to the issues being
tried.’” Id. (quoting State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978)). Even inappropriate
closing argument will not warrant a new trial unless it was so inflammatory or improper as
to affect the verdict. Id. (quoting Harrington v. State, 385 S.W.2d 758, 759 (1965)). When
determining the propriety of closing argument, this court considers the following factors:

              (1) The conduct complained of viewed in the context and in
              light of the facts and circumstances of the case[;]
              (2) [t]he curative measures undertaken by the court and the
              prosecution[;]
              (3) [t]he intent of the prosecutor in making the improper
              statements[;]
              (4) [t]he cumulative effect of the improper conduct and any
              other errors in the record [; and]
              (5) [t]he relative strength or weakness of the case.

Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976).

               During the rebuttal portion of his closing argument, the prosecutor referred to
the knife seized from the defendant as “an 11-inch hunting knife,” and the defendant objected
on the basis that there was no proof in the record to support that description. The trial court
instructed the jurors that they should “rely on [their] own memory of the exact facts in the
case, so the attorney is suppose[d] to stay within the facts.” The prosecutor stated that he
“was just going based on how long [the defendant] pointed out.”

               In our view, the prosecutor’s remark, although arguably objectionable for
arguing facts outside the record, was not so improper as to have affected the outcome of the
trial and can be classified as harmless. Accordingly, the defendant is not entitled to relief on

                                              -23-
this issue.

                                         Conclusion

               Because the evidence was insufficient to support the defendant’s conviction
of aggravated robbery as charged in the indictment, we reverse that conviction and impose
a conviction of the lesser included offense of theft of property valued at $500 or less. This
disposition is also warranted because the trial court erroneously instructed the jury that it
could convict the defendant of aggravated robbery on a finding that the defendant committed
the robbery by putting the victim in fear, which resulted in a constructive amendment of the
indictment, and because there was a variance between the offense as charged in the
indictment and the proof adduced at trial. Accordingly, the conviction of aggravated robbery
is reversed, a conviction of theft of property valued at $500 or less is imposed, and the case
is remanded for a new sentencing hearing on the misdemeanor theft conviction.


                                                    _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




                                             -24-
