        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs November 2, 2010

     STATE OF TENNESSEE v. MICHAEL FARMER AND ANTHONY
                            CLARK

                      Appeal from the Shelby County Criminal Court
                       No. 08–6635     John T. Fowlkes, Jr., Judge


Nos. W2009-02281-CCA-R3-CD and W2009-02283-CCA-R3-CD - Filed July 8, 2011


J OSEPH M. T IPTON, P.J., concurring in part and dissenting in part.

       I dissent from the majority’s holding that the State proved beyond a reasonable doubt
that Terrell Westbrooks suffered serious bodily injury as that term is contemplated by
Tennessee Code Annotated section 39-11-106(a)(34). I believe the majority’s holding
upends the statutory definition of “serious bodily injury” by essentially declaring that any
injury inflicted by a deadly weapon results in serious bodily injury. I do not believe the
statutory definitions support such an interpretation.

       Pertinent to this appeal, aggravated robbery is a robbery committed by use of a deadly
weapon or where the victim suffers serious bodily injury. T.C.A. § 39-13-402(a)(1), (2)
(2010) (emphasis added). Especially aggravated robbery is robbery committed by use of a
deadly weapon and where the victim suffers serious bodily injury. Id. § 39-13-403(a)(1), (2)
(2010) (emphasis added).

        The majority holds, “Wounds that are not themselves life-threatening, but which were
inflicted in a manner that necessarily involves a substantial risk of death, constitute serious
bodily injury within the meaning of section 39-11-106(a)(34)(A).” The majority opinion then
concludes, based upon medical knowledge and its own conclusions that are outside the proof
in the Defendants’ cases, that Mr. Westbrooks’s injury qualified as a serious bodily injury
because it involved a substantial risk of death. Essentially, the majority’s holding means that
the use of a deadly weapon resulting in any injury, because of the weapon’s inherently deadly
nature, involves a substantial risk of death. This renders meaningless the distinction between
aggravated robbery, involving a deadly weapon or serious bodily injury to a victim, and the
greater offense of especially aggravated robbery, involving a deadly weapon and serious
bodily injury to a victim. Following the majority’s holding, any injury inflicted with a deadly
weapon in the course of a robbery elevates the crime to especially aggravated robbery,
without regard to the factual proof of nature of the injury actually inflicted. I do not believe
this is the law.

        Even when viewed in the light most favorable to the State, the record is devoid of
proof that Mr. Westbrooks was at a substantial risk of death or that he suffered protracted
unconsciousness, suffered extreme physical pain, protracted or obvious disfigurement, or
protracted loss or substantial impairment as a result of the gunshot. This in no way
minimizes Mr. Westbrooks’s injury, but rather is a function of the State’s failure to prove the
serious bodily injury element of especially aggravated robbery. The majority holds that the
fact that Mr. Westbrooks was never at actual, substantial risk of death was a “serendipitous
turn of events for the victim” and should not benefit the Defendants. I believe, however, that
this court cannot substitute its own conclusion about the nature of a victim’s injury when the
State fails to offer facts to support that conclusion. The proof was not sufficient to support
the Defendants’ convictions for especially aggravated robbery of Mr. Westbrooks.

      I conclude, though, that the State’s proof was sufficient to support convictions for
both Defendants for the aggravated robbery of Mr. Westbrooks. Viewed in the light most
favorable to the State, the robbery of Mr. Westbrooks was accomplished with a deadly
weapon. See T.C.A. § 39-13-402(a)(2).

       I would modify both Defendants’ Class A felony convictions for especially aggravated
robbery to Class B felony aggravated robbery and remand the cases for resentencing for these
convictions. I concur in the portion of the majority opinion affirming Defendant Farmer’s
sentence for aggravated robbery of Darnay Taper.


                                                    ____________________________________
                                                    JOSEPH M. TIPTON, PRESIDING JUDGE




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