         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                    March 13, 2001 Session

                STATE OF TENNESSEE v. THOMAS J. TACKETT

                      Appeal from the Circuit Court for Warren County
                          No. F-7729    Charles D. Haston, Judge



                     No. M1999-02541-CCA-R3-CD - Filed June 28, 2001


Thomas J. Tackett appeals from his Warren County especially aggravated robbery conviction, for
which he received a 25-year incarcerative sentence. He urges us to find error based upon
insufficiency of the convicting evidence, admission of certain evidence at trial, jury instructions not
given, and sentencing. Although there is no merit in the issues advanced by the defendant, we notice
as plain error that the defendant’s conviction is for a greater crime than that which is charged in the
indictment. We therefore modify his especially aggravated robbery conviction to aggravated robbery
and remand for sentencing for that crime.

   Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed as Modified, Remanded.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which DAVID G. HAYES and
JOHN EVERETT WILLIAMS, JJ., joined.

Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General;
Clement Dale Potter, District Attorney General, for the Appellee, State of Tennessee.

John B. Nisbet, III (on appeal), Dan Bryant (at trial), for the Appellant, Thomas Tackett.


                                             OPINION

                 In the light most favorable to the state, the evidence at trial demonstrated that the
defendant assaulted George William Cartledge with a shovel and took more than $300 from him.
The attack took place in the victim’s home. Mr. Cartledge was unable to recall the specifics of the
attack; however, his face was “black” the day after the attack, he has a scar below his hairline, and
his vision is blurry and deteriorating. He spent three days in Erlanger Medical Center immediately
following the attack, and he was hospitalized at another facility for an additional seven days after he
developed an infection. Photographs of the crime scene demonstrate that the victim lost a great deal
of blood from his injuries. Other witnesses who responded to the scene confirmed that the victim
had large, deep cuts on his head and was bleeding profusely.
                At trial, the defendant did not contest that he attacked Mr. Cartledge or that he stole
money from him. Rather, his tactic was to challenge the state’s proof of “serious bodily injury” as
required for the crime of especially aggravated robbery. See Tenn. Code Ann. § 39-13-403 (1997)
(defining especially aggravated robbery as a robbery accomplished with a deadly weapon and in
which the victim suffers serious bodily injury).

                   The jury convicted the defendant of especially aggravated robbery, and he then filed
this appeal.

                                                             I

                The defendant’s first issue challenges the sufficiency of the convicting evidence. As
a predicate to that review, however, we must address an issue which he has not raised, namely the
sufficiency of the indictment to charge the crime of which he was ultimately convicted.

                The indictment in this case charges that the defendant “did, intentionally and
knowingly cause serious bodily injury to the person of George Cartledge while intentionally and
knowingly taking property from the person of George Cartledge without his effective consent in
violation of T.C.A. §39-14-403 a Class ‘A’ felony . . . .” Strangely, the statutory reference in the
indictment, section 39-14-403, is to the aggravated burglary statute. The factual allegations of the
indictment assert a claim of aggravated robbery but not especially aggravated robbery. Compare
Tenn. Code Ann. § 39-13-402 (1997) (aggravated robbery is robbery accomplished with a deadly
weapon or where the victim suffers serious bodily injury) with Tenn. Code Ann. § 39-13-403 (1997)
(especially aggravated robbery is robbery accomplished with a deadly weapon and where the victim
suffers serious bodily injury).

               Tennessee law prohibits the conviction of a defendant for an offense greater than that
charged in the indictment. See, e.g., Huffman v. State, 200 Tenn. 487, 495, 292 S.W.2d 738, 741
(1956), overruled on other grounds by State v. Irvin, 603 S.W.2d 121 (Tenn. 1980); Shook v. State,
192 Tenn. 134, 136, 237 S.W.2d 959, 959 (1951). In this case, the indictment charges the offense
of aggravated robbery;1 nevertheless, the defendant was tried and convicted of the greater offense
of especially aggravated robbery. His criminal liability can be no greater than the crime of
aggravated robbery. His conviction of the greater crime cannot stand.

                The jury’s finding that the defendant committed especially aggravated robbery
required factual determinations that the defendant committed robbery with a deadly weapon and that
the victim suffered serious bodily injury. See Tenn. Code Ann. § 39-13-403 (1997). A
determination of guilt of aggravated robbery as actually charged in the indictment would require the
same findings absent proof of a deadly weapon. See Tenn. Code Ann. § 39-13-402 (1997). By
finding the defendant guilty of especially aggravated robbery, the jury also found the defendant guilty


         1
                   The inclusion of an erroneou s statutory referen ce is not fatal to the indictment; the erroneous citation
is mere surp lusage. State v. Seagraves, 837 S.W.2d 615 , 617 n.2 (Tenn. Crim. App. 1992).

                                                            -2-
of the lesser-included offense of aggravated robbery. Therefore, we may modify the defendant’s
improper especially aggravated robbery conviction to the lesser-included offense charged in the
indictment, aggravated robbery. See Huffman, 200 Tenn. at 498, 292 S.W.2d at 743; Forsha v. State,
183 Tenn. 604, 613-14, 194 S.W.2d 463, 466 (1946) (order on petition for rehearing); Corlew v.
State, 181 Tenn. 220, 223, 180 S.W.2d 900, 901 (1944) (Prewitt and Gailor, JJ., dissenting on other
grounds), overruled on other grounds by Campbell v. State, 491 S.W.2d 359 (Tenn. 1973); Sherod
v. State, 4 Tenn. Crim. App. 344, 348, 470 S.W.2d 860, 862 (Tenn. Crim. App. 1971). But see
Shook v. State, 192 Tenn. 134, 237 S.W.2d 959 (1951) (reversing and remanding for a new trial on
proper, lesser charge); State v. Morris, 788 S.W.2d 820 (Tenn. Crim. App. 1990) (reaching same
result as Shook in the face of multiple errors); cf. State v. Terrence Cunningham, No. 02C01-9210-
CR-00231 (Tenn. Crim. App., Jackson, Aug. 18, 1993) (acknowledging possibility of conviction
modification as a proper result in some cases but holding that facts presented required remand for
a new trial on the proper, lesser offense). We have no hesitation in doing so.

                We now turn to the defendant’s challenge to the sufficiency of the evidence. He
claims in his brief that the state’s proof of the elements of use of a deadly weapon and serious bodily
injury to the victim were insufficient to sustain his especially aggravated robbery conviction.

                When an accused challenges the sufficiency of the convicting evidence, this court
must review the record to determine if the evidence adduced at trial is sufficient “to support the
finding by the trier of fact of guilt beyond a reasonable doubt.” Tenn. R. App. P. 13(e). This rule
is applicable to findings of guilt based upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence. State v. Dykes, 803 S.W.2d 250, 253 (Tenn.
Crim. App. 1990), overruled on other grounds by State v. Hooper, 29 S.W.3d 1 (Tenn. 2000).

                In determining the sufficiency of the convicting evidence, this court does not re-weigh
or re-evaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor
may this court substitute its inferences for those drawn by the trier of fact from circumstantial
evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the contrary, this
court is required to 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.
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

                 Questions concerning the credibility of the witnesses, the weight and value to be
given the evidence, as well as all factual issues raised by the evidence are resolved by the trier of
fact, not this court. Id. at 835. In State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973), our supreme
court said: “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the
witnesses for the State and resolves all conflicts in favor of the theory of the state.”

                Because a verdict of guilt removes the presumption of innocence and replaces it with
a presumption of guilt, the accused, as the appellant, has the burden in this court of illustrating why
the evidence is insufficient to support the verdicts returned by the trier of fact. State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). This court will not disturb a verdict of guilt due to the sufficiency


                                                  -3-
of the evidence unless the facts contained in the record are insufficient, as a matter of law, for a
rational trier of fact to find that the accused is guilty beyond a reasonable doubt. Id. at 914.

                 In light of our ruling above that the indictment did not charge especially aggravated
robbery, we need not consider the defendant’s challenge to the sufficiency of proof that the crime
was “[a]ccomplished with a deadly weapon or by display of any articled used or fashioned to lead
the victim to reasonably believe it to be a deadly weapon.” We are compelled to comment, however,
that it has not gone unnoticed by this court that the defendant conceded at trial that the only disputed
issue of fact was whether the victim suffered serious bodily injury.2 If this issue were before us on
its merits, the defendant would be in a poor posture to challenge the sufficiency of proof regarding
the deadly weapon element. See, e.g., State v. Banes, 874 S.W.2d 73, 82 (Tenn. Crim. App. 1993)
(appellant may not pursue inconsistent theories in trial and appellate courts); State v. Matthews, 805
S.W.2d 776, 781 (Tenn. Crim. App. 1990). Furthermore, the proof that the defendant used the
shovel in a manner consistent with it being classified as a deadly weapon is abundantly sufficient
and, indeed, undisputed. See Tenn. Code Ann. § 39-11-106(5)(B) (1997) (“A deadly weapon [is
a]nything that in the manner of its use . . . is capable of causing death or serious bodily injury."); cf.
State v. Douglas Canady, No. M1999-02135-CCA-R3-CD, slip op. at 4 (Tenn. Crim. App.,
Nashville, Sept. 29, 2000) (shovel was a deadly weapon in aggravated robbery case in which
defendant struck victim with shovel four times prior to taking victim’s property), perm. app. denied
(Tenn. 2000).




        2
                   The following relev ant excerpts from the defense’s opening statement and closing argument
demon strate the conc ession of the d eadly weap on elemen t:

        Ladies and gentlemen, the defendant is going to concede that a rob bery occu rred . . . he’s going to
        concede that he was the one who perpetrated the robbery. He’s also going to concede that in the
        perpetration of this robbery a shovel was us ed and tha t during this rob bery Mr . Cartledge was hit about
        the head with the shovel. . . . We’re also going to concede that as a result of these blows by the shovel
        that Mr. Car tledge rece ived bod ily injury. . . . What w e are denyin g is that as a result of this robbery
        and the blows that Mrs. Cartledge received at the hands of Mr. Tackett that he sustained what the law
        defines as serious bodily injury . . . . You really don’t have to worry about the proof that the robbery
        occurred. . . . You don’t have to worry that a w eapon w as used, a sho vel, by definition can be a d eadly
        weapon and you d on’t have to really even worry about that he, the victim, got bodily injury. . . . What
        we are contesting is that the extent of the bodily injury that Mr. Cartledge received was sufficient to
        bring this crime up to espe cially aggravate d robbe ry.
        ...
        Most people d on’t think of a shovel as being a deadly weapon but there’s a lot of things that can be
        used as weapons that aren’t ordinarily thought o f as weapons. I believe there is probably sufficient
        proof you could gather from the testimony that the way this shovel was used on the victim it could
        qualify as a deadly wea pon. Th at would make this robbery an aggravated robbery. . . . Our position
        is the State has proven their case for robbery and has proven their case for aggravated robbery . . . but
        they are lacking on their proof beyond a reasonable doubt of one critical element in the charge of
        especially aggravated robbery a nd that is the facto rs that must b e shown to establish serious bodily
        injury.

                                                            -4-
                 We focus, however, upon the mode of committing aggravated robbery that was
charged in the indictment, that is, that the victim suffered serious bodily injury. We believe the proof
is sufficient to sustain a conviction.

                  The Criminal Code defines “serious bodily injury” as “bodily injury which involves
. . . [a] substantial risk of death[, p]rotracted unconsciousness[, e]xtreme physical pain[, p]rotacted
or obvious disfigurement[, or p]rotracted loss or substantial impairment of a function of a bodily
member, organ or mental faculty . . . .” Tenn. Code Ann. § 39-11-106(a)(34) (1997). “‘Bodily
injury’ includes a cut, abrasion, bruise, burn or disfigurement; physical pain or temporary illness, or
impairment of the function of a bodily member, organ or mental faculty . . . .” Id. at (a)(2).

                 The evidence at trial demonstrated that the victim lost significant quantities of blood.
The victim testified that an emergency medical worker who responded to the scene said that he had
a skull fracture and would not survive the transport to the hospital.3 The victim was hospitalized for
a total of ten days for his injuries and a resultant infection. His head had deep cut wounds that
required one hundred staples to repair, and he is now scarred. He testified that although his vision
had been good before the crime, it is now blurry and deteriorating. In the light most favorable to the
state, this evidence demonstrates a substantial risk of death, as well as impairment of a bodily organ,
his eyes. Therefore, the evidence of serious bodily injury is sufficient to sustain an aggravated
robbery conviction.

                                                             II

                We next consider the defendant’s challenge to the admission of crime scene
photographs, which he claims were unduly prejudicial to him. The trial court admitted seven of the
nine photographs proffered by the state. Each of these seven photographs depicts a location in the
victim’s home where the victim bled after the crime. Two of the photographs depict a floor covered
with substantial amounts of blood, and one of those two photographs depicts a handgun that the
victim testified he fired at the defendant as the defendant charged at him with the shovel. The state
offered these photographs and the trial court admitted them on the basis that they were probative of
the issue of whether the victim suffered serious bodily injury as required for especially aggravated
robbery.

               The standard for admissibility of photographic evidence is well established. The trial
court must determine, first, whether the photograph is relevant. Tenn. R. Evid. 401; State v. Banks,
564 S.W.2d 947, 949 (Tenn. 1978). Photographs are not necessarily rendered inadmissible because
they are cumulative of other evidence or because descriptive words could be used. Collins v. State,
506 S.W.2d 179, 185 (Tenn. Crim. App. 1973); see also State v. Terrence L. Davis, No.


         3
           W e recognize that this evidence might have been the proper su bject of a he arsay obje ction. See Tenn. R. Evid.
801, 802. However, no o bjection w as offered, an d the evide nce was rec eived as sub stantive evide nce. See State v.
Smith , 24 S.W .3d 274 (Tenn. 2 000) (failur e to raise contemp oraneou s hearsay ob jection rend ers evidenc e substantively
admissible) .

                                                            -5-
02C01-9511-CR-00343 (Tenn. Crim. App., Jackson, June 2, 1997), perm. app. denied (Tenn. 1998).
Photographs must be relevant to prove some part of the prosecution's case and must not be admitted
solely to inflame the jury and prejudice them against the defendant. Banks, 564 S.W.2d at 951; see
Tenn. R. Evid. 403 (relevant evidence may be admitted if its probative value is not "substantially
outweighed by the danger of unfair prejudice"). Prejudice becomes unfair when the primary purpose
of the evidence at issue is to elicit emotions of "bias, sympathy, hatred, contempt, retribution, or
horror." M. Graham, Handbook of Federal Evidence 182-83 (2d ed. 1986). On appeal, a trial court's
decision to admit a photographic exhibit is reviewable for abuse of discretion. Banks, 564 S.W.2d
at 949.

                The photographs in this case demonstrate the victim’s significant loss of blood,
thereby showing a substantial risk of death. In addition, the photographs are illustrative of the
victim’s testimony about the extent of his injuries. We acknowledge that the photographs are
unpleasant in that they demonstrate blood, some of them in large quantities. However, upon
weighing the probative value of these photographs against the danger of unfair prejudice, we
conclude that the trial court acted within its discretion in admitting them. Cf. State v. Cornelius
Michael Hyde, No. E2000-00042-CCA-R3-CD, slip op. at 7-8 (Tenn. Crim. App., Knoxville, Dec.
28, 2000) (photographs of child victim’s injuries highly probative of the question of serious bodily
injury and properly admitted) (Wedemeyer, J., concurring on other grounds) (Tipton, J. concurring
and dissenting on other grounds); State v. Grover Donnell Cowart, No. 03C01-9512-CR-00402, slip
op. at 24 (Tenn. Crim. App., Knoxville, Jan. 8, 1999) (bloody comforter, pillowcase and t-shirt
properly admitted in especially aggravated robbery and attempted first degree murder case as
probative of whether victim suffered serious bodily injury and on issue of defendant’s intent), perm.
app. denied (Tenn. 1999); State v. Melissa J. Pewitt, No. 01C01-9706-CR-00229, slip op. at 9-10
(Tenn. Crim. App., Nashville, July 23, 1998) (admission of photographs of victim showing
lacerations and blood was not plain error; photographs probative of question whether victim suffered
“serious bodily injury” element of offense of especially aggravated burglary).

                                                 III

                The defendant also claims that the trial court erred in failing to instruct the jury on
the offense of aggravated assault, which he claims is a lesser-included offense of especially
aggravated robbery. In support of his argument, he cites our supreme court’s recent decisions in
State v. Burns, 6 S.W.3d 453 (Tenn. 1999), and State v. Dominy, 6 S.W.3d 472 (Tenn. 1999).

                Following a charge conference with the attorneys, the trial court instructed the jury
on especially aggravated robbery and the lesser-included offenses of aggravated robbery and robbery.
The defense made no request that the jury be charged on any additional offenses as lesser-included.
The jury returned a verdict of the greater offense, especially aggravated robbery.




                                                 -6-
               We begin our analysis by acknowledging that aggravated assault is a lesser-included
offense of especially aggravated robbery. 4           See State v. Jason C. Carter, No.
M1998-00798-CCA-R3-CD, slip op. at 11 (Tenn. Crim. App., Nashville, Apr. 27, 2000), perm. app.
denied (Tenn. 2000); State v. James Eric Alder, No. M1999-02544-CCA-R3-CD, slip op. at 3 (Tenn.
Crim. App., Nashville, Oct. 27, 2000) (aggravated assault is a lesser-included offense of aggravated
robbery).

                 In determining whether the lesser-included offense should be charged, the trial court
must engage in a two-part inquiry. First, it "must determine whether any evidence exists that
reasonable minds could accept as to the lesser-included offense." Burns, 6 S.W.3d at 469. Such
determination is made by examining the evidence in the light most favorable to the existence of the
lesser-included offense. Id. Then, "the trial court must determine if the evidence, viewed in this
light, is legally sufficient to support a conviction for the lesser-included offense." Id.

               When the proof of the lesser-included offense is solely a portion of the evidence
supporting the existence of the greater offense, as opposed to the evidence of the lesser being an
alternative explanation for what occurred, we have held that the trial court is not obliged to give the
lesser-included offense instruction. In this situation, there is no evidence of the lesser offense other
than the very same evidence that supports the greater offense, that is, "that reasonable minds could
accept as to the lesser-included offense."                 See State v. Terry T. Lewis, No.
M1999-00876-CCA-MR3-CD, slip op. at 20 (Tenn. Crim. App., Nashville, Mar. 17, 2000); see
generally Burns, 6 S.W.3d at 469.

               In this case, there is facially sufficient proof to sustain a conviction of aggravated
assault. See generally Tenn. Code Ann. § 39-13-102 (1997) (aggravated assault). However, the
evidence supporting this crime is merely a portion of the very same evidence that the state relied
upon in support of its especially aggravated robbery case against the defendant. The defendant
conceded all of the elements of the crime of especially aggravated robbery save serious bodily injury
of the victim. Included in this concession was commission of a robbery, the principal elemental
difference between the crimes of aggravated robbery and aggravated assault. Inasmuch as the
defendant did not contest that he robbed the vicitm, acceptance of the defendant’s theory of the case
would have resulted in a guilty verdict for the offense of aggravated robbery, not the offense of
aggravated assault. As such, there was not evidence “that reasonable minds could accept as to the
lesser-included offense” as opposed to the greater. Therefore, a charge on the lesser-included offense
of aggravated assault was not required.



         4
                   It is true that the trial court did not have the benefit of the Burns and Dominy decisions at the time this
case was tried. However, bo th the trial court and the defense should have been aware that, even prior to those d ecisions,
this court had said that aggravated assault could be a lesser-included offense of aggravated robbery. See State v. Vickie
R. Herron, No. 02C01-9702-CR-00067, slip op. at 6 (Tenn. Crim. App., Jackson, Dec. 31, 199 8); State v. Aaron B enard
Gray, No. 02C01-9707-CC-00270, slip op. at 5 (Tenn. Crim. App., Jackson, May 1, 1998). As a lesser-include d offense
of aggravated robbery, aggravated assault was likewise lesser-included within especially aggravated robbery even before
Burns and Dominy.

                                                             -7-
                                                  IV

                Finally, we address the defendant’s challenges to the trial court’s ruling that his pre-
trial statements and written waiver of rights were admissible and to the sentence imposed by the trial
court. The defendant has waived substantive appellate consideration of either of these issues by
failing to include the transcripts of the suppression and sentencing hearings in the record on appeal
. See, e.g., Tenn. R. App. P. 24(b); State v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983). Moreover,
the question of the propriety of the sentence imposed for especially aggravated robbery is moot due
to our determination that the conviction must be modified to aggravated robbery and the case
remanded for sentencing on the modified conviction.

                In summary, none of the defendant’s issues avail him of any relief. However, upon
notice of plain error, we modify the especially aggravated robbery conviction to aggravated robbery
and remand for sentencing on the modified conviction.



                                                        ___________________________________
                                                        JAMES CURWOOD WITT, JR., JUDGE




                                                  -8-
