             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT KNOXVILLE             FILED
                           JUNE 1998 SESSION
                                                        July 15, 1998

                                                     Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk

STATE OF TENNESSEE,              )
                                 )    C.C.A. NO. 03C01-9709-CR-00387
             Appellee,           )
                                 )    KNOX COUNTY
VS.                              )
                                 )    HON. RICHARD R. BAUMGARTNER,
MARCUS WELCOME,                  )    JUDGE
                                 )
             Appellant.          )    (Robbery)



FOR THE APPELLANT:                    FOR THE APPELLEE:


MARK E. STEPHENS                      JOHN KNOX WALKUP
District Public Defender              Attorney General & Reporter

R. SCOTT CARPENTER                    TODD R. KELLEY
Asst. Public Defender                 Asst. Attorney General
1209 Euclid Ave.                      John Sevier Bldg.
Knoxville, TN 37921                   425 Fifth Ave., North
                                      Nashville, TN 37243-0493

                                      RANDALL NICHOLS
                                      District Attorney General

                                      MARSHA SELECMAN
                                      Asst. District Attorney General
                                             -and-
                                      JERRY HALL
                                      Acting Asst. District Attorney General
                                      City-County Bldg.
                                      Knoxville, TN 37902




OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                    OPINION



             The defendant was indicted for robbery. Following a trial, the jury returned

a verdict of guilty. In this appeal as of right, the defendant argues that the convicting

evidence is insufficient to sustain his conviction and that a remark made by the

prosecutor during closing argument amounts to reversible error. Finding no merit in the

defendant’s arguments, we affirm.



             The victim and a friend drove to a Knoxville nightclub. They became

separated when the nightclub closed, so the victim went to his car and began slowly

driving in the area searching for his friend. The defendant was standing down the street

on the corner. When the victim drove by, the defendant asked the victim for a ride home,

and the victim agreed. The victim continued to look for his friend for approximately ten

minutes, but when he still did not spot him, he decided to drive the defendant home.



             As the victim drove, the defendant gave directions to an apartment complex.

The victim slowed the car and shifted the transmission into “park” to allow the defendant

to exit the car. The defendant reached over, grabbed the keys from the ignition, and ran

from the car. When the victim pursued him, the defendant stated, “Don’t be stupid, I have

a gun” and acted as if he were reaching for a gun. The defendant then ran back to the

car and began to drive away. The victim grabbed the partially opened passenger’s side

window and tried to open the door to stop the defendant. The defendant struck the

victim’s hands several times and continued to drive away with the victim hanging on to

the car. The victim was dragged one quarter of a mile before he lost his grip.



             The victim walked to a nearby store where he called the police to report the



                                           2
incident. He was taken to the hospital, where he was treated for a sprained knee and

several abrasions to his arms and legs. Meanwhile, the victim’s car, which was being

driven by the defendant, was spotted, and the defendant was pulled over, arrested, and

transported to the police station. When the victim was released from the hospital, he

identified the defendant.



              On appeal, the defendant argues that the evidence is insufficient to support

his conviction, in that the proof does not support the elements charged by the indictment.

The defendant was indicted for robbery under T.C.A. § 39-13-401, which defines robbery

as “the intentional or knowing theft of property from the person of another by violence or

putting the person in fear.” Even though robbery only requires proof of either violence or

fear, not both, the indictment in this case charged that the defendant “did unlawfully,

knowingly, by violence and by putting [the victim] in fear, take from the person of [the

victim] a 1982 Pontiac Trans Am motor vehicle, in violation of T.C.A. 39-13-401.” Even

so, the State presented sufficient evidence of both violence and fear. In an effort to take

the victim’s car from the victim, the defendant struck the victim’s hands several times and

dragged the victim for one quarter of a mile as the victim hung on to the car. This shows

the defendant took the victim’s property by violence. Moreover, the victim testified he

became scared when the defendant threatened he had a gun, which shows that the

defendant also used fear to separate the victim from his property. Since the State

presented adequate proof of both violence and fear, as provided in the indictment, the

defendant’s argument is without merit.



              The defendant also argues that a remark made by the prosecutor during

closing argument amounts to reversible error. During the State’s closing argument, the

prosecutor told the jury, “If you don’t find the defendant guilty, if you come back with a



                                            3
not-guilty, he is going to walk out -- right out of this courtroom -- a free man. He is going

to rob someone else.” Defense counsel objected to this remark as improper, and the trial

court agreed. Defense counsel moved for mistrial, which the trial court denied. However,

shortly after the prosecutor’s remark, the trial court sua sponte instructed the jury to

“disregard any remark that applies to any suggestion of future conduct.” The defendant

now argues that nothing short of declaring a mistrial could have cured the prejudice

enured to him by the prosecutor’s improper remark.



              Statements made in closing argument constitute reversible error only when

the statements were improper and that impropriety affected the verdict. State v. Sutton,

562 S.W.2d 820 (Tenn. 1978); State v. Pulliam, 950 S.W.2d 360 (Tenn. Crim. App.

1996). Commentary on the consequences of an acquittal are generally improper. See

Coker v. State, 911 S.W.2d 357 (Tenn. Crim. App. 1995); Bowling v. State, 3 Tenn. Crim.

App. 176, 458 S.W.2d 639 (1970). Nevertheless, in evaluating the impact of the remark,

this Court must consider the conduct in context; the curative measures undertaken; the

prosecutor’s intent in making the statement; the cumulative effect of the improper conduct

and any other errors in the record; and the relative strength or weakness of the case.

Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976); see State v. Buck, 670

S.W.2d 600, 609 (Tenn. 1984).



              Here, the prosecutor’s remark was not the central focus of his closing

argument, and the record does not indicate that the prosecutor made the remark in bad

faith. In context, it was little more than a passing remark, and almost immediately, the

trial court warned the jury to disregard the prosecutor’s remark and base its decision

solely upon the evidence presented on the charged crime. The defendant does not

allege that the cumulative effect of this improper remark combined with other errors in the



                                             4
record was great; in fact, the defendant fails to identify any other errors in the record.

Considering all of this in conjunction with the strength of the State’s case, we conclude

that the prosecutor’s remark was not so inflammatory that it affected the verdict to the

defendant’s detriment, and we thus necessarily reject the defendant’s argument that the

prosecutor’s remark was incurably prejudicial. See Pulliam, 950 S.W.2d at 369 & n.3.



              The defendant’s conviction is affirmed.




                                                 _______________________________
                                                 JOHN H. PEAY, Judge



CONCUR:



______________________________
JOSEPH M. TIPTON, Judge



______________________________
DAVID G. HAYES, Judge




                                            5
