         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs August 7, 2001

                  STATE OF TENNESSEE v. DONEY D. MILES

                  Direct Appeal from the Criminal Court for Shelby County
                            No. 99-01725     Chris Craft, Judge



                  No. W2000-02587-CCA-R3-CD - Filed September 14, 2001


The defendant appeals his conviction for aggravated robbery and sentence of eight years and six
months, arguing: (1) there was insufficient evidence to support his conviction; (2) the trial court
erred in allowing hearsay into evidence under the excited utterance exception; (3) the trial court
erroneously failed to charge the jury on lesser-included offenses; and (4) his sentence is excessive.
After a thorough review of the record, we affirm the judgment of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JOE G. RILEY, J., delivered the opinion of the court, in which DAVID G. HAYES and ALAN E. GLENN,
JJ., joined.

Michael E. Scholl, Memphis, Tennessee, for the appellant, Doney D. Miles.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General;
William L. Gibbons, District Attorney General; and David N. Pritchard, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                            OPINION

        On January 23, 1999, at approximately 8:00 p.m., teenager Jarome Ladd was alone in his
family's business, an arcade. A man whom Ladd recognized as "Disco," a frequent customer, exited
a vehicle outside the arcade. Disco entered, displayed a gun, and stated, "You know what time it is."
As Ladd reached for the cash box, Disco struck him in the head with the gun, knocking his chair
over, and grabbed the money, totaling $500 to $600. At trial, Ladd identified the defendant as Disco.
Ladd testified the defendant had been in the arcade "maybe ten to fifteen times" in the two to three
months prior to the robbery.
         Ladd testified that his uncle, the manager of the arcade, returned to the arcade and telephoned
Ladd's mother. His mother returned to the arcade, having been gone only ten minutes. Ladd
testified that the police arrived five to six minutes after they were called.

        Regina Trezevant, Jarome Ladd's mother, testified that on the evening of the robbery she had
left her son and her brother at the arcade while she went to her mother's home. She stated she
"wasn't gone a good ten minutes" when she returned to find her son "very upset," "emotional," and
"real hostile." She observed an injury to his head. Trezevant testified her son said he had been hit
in the head and robbed and identified his assailant as “Disco.” Trezevant also noticed that coins
were "thrown everywhere;" the desk drawer was pulled out; and the chair was turned over in the
floor. She further testified she called the police, and they arrived within thirty minutes.

         Memphis Police Officer Jason Parish testified he was dispatched to the arcade following the
report of the robbery. Although the police report stated that officers responded to the robbery at
8:40 p.m., Officer Parish stated 8:40 p.m. could have been the time the department received the call
or the time when he arrived at the scene. He further testified that he arrived at the arcade within five
minutes of the call. When he entered the arcade, he noticed coins and the empty cashbox on the
floor, along with an overturned chair. He testified that Ladd was upset and stated he had been
robbed and struck in the head. The officer observed a knot on the right side of Ladd's head.

        The defendant testified that on the evening of the robbery he shopped with a friend at the
Mall of Memphis. He stated they arrived at the mall at approximately 8:00 p.m. and browsed until
he made two purchases between 8:48 and 9:05 p.m. The defense produced copies of the alleged cash
receipts for these purchases as well as the items he purchased, a shirt and pair of shoes. The
defendant denied any involvement in the robbery but admitted that he had been in the arcade several
times and was acquainted with Jarome Ladd. According to Ladd’s testimony during the state’s
proof, one could drive from the arcade to the mall in twenty minutes.

        Kiteme Gandy testified he went to the mall with the defendant sometime in 1999. He
identified the shirt and shoes entered into evidence by the defense as the items purchased by the
defendant during their trip to the mall.

        Based upon this evidence, the jury convicted the defendant of aggravated robbery.


                                   I. Sufficiency of the Evidence

       The defendant alleges there was insufficient evidence presented at trial to support his
conviction. He argues the proof presented in support of his alibi defense was stronger than the proof
submitted by the state and, therefore, the state’s proof was insufficient.

        When an accused challenges the sufficiency of the evidence, this court must review the
record to determine if the evidence adduced during the trial was sufficient "to support the findings

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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 predicated upon direct evidence, circumstantial evidence or a
combination of direct and circumstantial evidence. State v. Brewer, 932 S.W.2d 1,18 (Tenn. Crim.
App.1996). 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. Tuttle, 914 S.W.2d 926, 932 (Tenn. Crim. App. 1995). The trier of fact, not
this court, resolves 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. Id.

        The state can prove aggravated robbery by showing that the defendant intentionally or
knowingly committed theft from the person of another by violence or putting the person in fear, and
that such theft was accomplished with a deadly weapon. Tenn. Code Ann. §§ 39-13-401(a), -
402(a)(1).

        In this case, the only issue relating to sufficiency of the evidence is identity. The identity of
the perpetrator is a question of fact for the jury. State v. Vaughn, 29 S.W.3d 33, 40 (Tenn. Crim.
App. 1998). The defendant and the victim testified that they were familiar with each other. The
victim identified the defendant as the man who entered his family’s business, threatened him with
a gun, struck him on the head with the gun and robbed him. Further, despite the defendant’s claim
that the proof he presented at trial established an irrefutable alibi, it is well within the province of
the jury to reject an alibi. State v. Underwood, 669 S.W.2d 700,703 (Tenn. Crim. App. 1984). The
time of the robbery was never precisely established. Thus, even if the jury concluded the defendant
made a mall purchase at 8:48 p.m., the jury could have reasonably found from the proof presented
that the defendant had sufficient time to commit the robbery and arrive at the mall in time to make
this purchase. This issue is without merit.


                      II. Excited Utterance Exception to the Hearsay Rule

         The defendant claims the trial court erred in ruling that the victim’s statements to his mother
regarding the robbery and the identity of the defendant were admissible pursuant to Tenn. R. Evid.
803(2) as excited utterances. Three requirements must be met before a statement will qualify as an
excited utterance: first, there must be a startling event or condition; second, the statement must relate
to the startling event or condition; and third, the declarant must still be under the stress of excitement
from the event or condition when the statement is made. State v. Gordon, 952 S.W.2d 817, 820
(Tenn. 1997); State v. Smith, 857 S.W.2d 1, 9 (Tenn. 1993).

        These three requirements were satisfied with regard to the statements made by the victim to
his mother when she arrived at the arcade shortly after the robbery. The robbery was certainly a
startling event; the statements of Ladd related to the robbery; and the statements were made shortly
after the robbery while Ladd was upset. This issue is without merit.



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                                   III. Lesser-Included Offenses

        The defendant argues the trial court erred in failing to charge the jury as to robbery and theft
as lesser-included offenses of aggravated robbery. We respectfully disagree.

         Since all of the statutory elements of theft and robbery are included within the statutory
elements of aggravated robbery, they are lesser-included offenses of aggravated robbery under part
(a) of State v. Burns, 6 S.W.3d 453, 466 (Tenn. 1999). Aggravated robbery is distinguished from
robbery only by an additional showing that the robbery was accomplished with a deadly weapon or,
in the alternative, by a showing that the victim suffered serious bodily injury. See Tenn. Code Ann.
§ 39-13-402. Robbery is distinguished from theft only by an additional showing that the theft was
accomplished by violence or by putting the victim in fear. See Tenn. Code Ann. § 39-13-401(a).
Thus, robbery and theft are lesser-included offenses of aggravated robbery under part (a) of Burns
since all statutory elements of robbery and theft are also statutory elements of aggravated robbery.

       However, our analysis does not stop there. As recently stated by the Tennessee Supreme
Court in State v. Ely,     S.W.3d     , , 2001 WL 605097, at *9 (Tenn. 2001), determination of
whether a charge should be included in jury instructions as a lesser-included offense is a two-part
inquiry. First, it must be determined if the offense meets the definition of a lesser-included offense
as described in Burns. Id. Second, the charge must be justified by the evidence. Id; Burns, 6
S.W.3d at 467. This second step requires that we determine (1) whether there is evidence that
“reasonable minds” could accept to establish the lesser-included offense, and (2) whether the
evidence is “legally sufficient” to support a conviction for the lesser-included offense. Burns, 6
S.W.3d at 469. Therefore, we must determine whether, under the facts of this case, the trial court
should have instructed the jury as to robbery and theft.

         Of crucial significance is the interpretation of whether “any evidence exists that reasonable
minds could accept as to the lesser-included offense.” Id. After Burns, our supreme court has found
error on several occasions relating to the failure to charge lesser offenses. State v. Swindle, 30
S.W.3d 289, 293-94 (Tenn. 2000) (finding harmless error in the failure to charge Class B
misdemeanor assault as a lesser offense of aggravated sexual battery); State v. Bowles, ___ S.W.3d
___, ___, 2001 WL 856575, at *7 (Tenn. 2001) (finding reversible error in the failure to charge theft
as a lesser offense of robbery); Ely, ___ S.W.3d at ___, 2001 WL 305097, at *12 (finding reversible
error in the failure to charge second degree murder, reckless homicide and criminally negligent
homicide as lesser offenses of felony murder); State v. Rush, ___ S.W.3d ___, ___, 2001 WL
334297, at *6 (Tenn. 2001, corrected opinion filed July 25, 2001) (finding reversible error in the
failure to charge misdemeanor reckless endangerment as a lesser offense of attempted second degree
murder).

        In Ely the defendant was charged with felony murder relating to his actions of “repeatedly
striking the victim over the head with a brick, or assisting [the] co-defendant as he did so.” Ely, ___
S.W.3d at ___, 2001 WL 305097, at *12. The court concluded these facts “constituted at least

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criminally negligent homicide, reckless homicide, or second degree murder.” Id. (emphasis in
original). At issue then is whether it is always error if the evidence “at least” establishes
commission of a lesser-included offense.

         Because the statutory elements of robbery and theft are included in the statutory elements of
aggravated robbery, one cannot commit an aggravated robbery without also committing a robbery
and theft. Similarly, one cannot commit a premeditated first degree murder without also committing
a simple assault. The “at least” language in Ely could be literally interpreted to mean that because
all statutory elements of a lesser-included offense are included in the greater offense under part (a)
of Burns, (1) there will always be evidence that reasonable minds could accept to at least prove the
lesser offense, and (2) the evidence will always be legally sufficient to at least support a conviction
for the lesser offense. Thus, it is arguable that Ely means it would always be error to fail to charge
any lesser-included offense that qualifies under part (a) of Burns. It could also be argued that such
an error could never be harmless unless at least one higher, lesser-included offense was charged and
rejected by the jury. See Ely,       S. W. 3d at ___, 2001 WL 305097, at *12-14; State v. Williams,
977 S.W.2d 101, 105 (Tenn. 1998).

        Most recently, our supreme court concluded that the failure to charge theft as a lesser-
included offense of robbery was reversible error. Bowles, ___ S.W.3d at ___, 2001 WL 856575, at
*7. The court stated that “[i]n proving robbery, . . . the state also proved theft, for all elements of
theft are included within the elements of robbery.” Id. The court further emphasized that

               “[i]t is not necessary that Bowles demonstrate a rational basis for
               acquittal on the robbery charge before theft could be submitted to the
               jury as a lesser-included offense; he merely must demonstrate that
               evidence also exists which rational minds could accept as to the
               offense of theft.”

Id. At issue then is whether this language means that “reasonable minds” could always find guilt
of the lesser-included offense simply because the evidence is “legally sufficient” to support a
conviction for the lesser-included offense. If so, the first prong of the Burns analysis is meaningless.
We do not believe our supreme court intended such a result.

        An illustration supports our interpretation of these supreme court cases. Let us assume it is
undisputed at a trial that an elderly victim was brutally murdered and robbed in her home. The only
disputed issue is whether the defendant was the perpetrator. The defendant advanced an alibi
defense. If the trial court charged first degree murder and second degree murder, and the defendant
was convicted of second degree murder, is it reversible error for the trial court to refuse to charge
criminally negligent homicide or simple assault? We do not interpret the supreme court cases to
require such a result since, under the facts, “reasonable minds” could not find guilt of such offenses.
Likewise, the same analogy could apply to theft in an aggravated robbery case depending upon the
evidence at trial.


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       In summary, we do not believe this precise issue has been decided by our supreme court.
Thus, we conclude a lesser-included offense need not always be charged simply because one cannot
commit the greater offense without also committing the lesser-included offense. The determination
must be based upon the evidence introduced at trial, and each case is fact specific.

         After Burns, but prior to Ely, Rush and Bowles, a panel of this court stated the following:


                           The question then becomes whether, in determining if there
                   is evidence that reasonable minds could accept as to the lesser-
                   included offense, the trial court must find that there is proof of the
                   lesser-included offense solely because it is a portion of the evidence
                   supporting the existence of the greater offense, as opposed to the
                   evidence of the lesser offense being an alternative explanation for
                   what occurred. Upon review of relevant authorities, we hold that the
                   trial court is not obliged to give the lesser-included offense
                   instruction where there is no evidence of the lesser offense other than
                   the very same evidence which supports the greater offense, that is,
                   “that reasonable minds could accept as to the lesser-included
                   offense.” Burns, 6 S.W.3d at 469.

State v. Lewis, 36 S.W.3d 88, 100 (Tenn. Crim. App. 2000). Permission to appeal was denied in
Lewis by our supreme court on October 30, 2000.

       Although some of the language used in Lewis may be questionable in light of Ely, Rush and
Bowles, we believe the basic premise of Lewis remains viable: (1) If the evidence at trial
undisputedly shows that the greater offense was committed; (2) if the evidence of the lesser-included
offense exists solely because it is included within the greater offense; and (3) if reasonable minds
could not accept the lesser-included offense, it is not error to refuse to charge the lesser-included
offense.

       In the case before us, the victim testified that the man who robbed him displayed a gun and
struck him on the head with it before taking the money. The fact that he had a head injury was
undisputed. Contrary to defendant’s argument, none of the proof submitted at trial could have
provided a reasonable basis for a jury finding that there was no robbery with a deadly weapon.1 The
only proof in conflict with the victim’s testimony, which was the testimony of the defendant, went


         1
           During a discussion of the pro posed ju ry charg e, defense counse l clearly requested charges on robbery and
theft. The trial co urt stated, “[i]t’s n ot a credib ility issue in my mind. It was either an aggravated robbery or they had
the wrong person.” Defense counse l respond ed, “[w]e ll, and I’m pretty much in agreeance (sic) with your H onor. It’s
either – my g uess is it’s an all or nothing thing in this type of trial, but I have been caught before.” Although counsel
insisted on the lesser charges, no theory was advanced contrary to the trial court’s observation that it was either an armed
robbery or “they had the wrong person.”

                                                            -6-
to the issue of the identity of the perpetrator, not whether there was a robbery with a deadly weapon.
We conclude that reasonable minds could not accept the evidence as establishing simple robbery or
theft, and the trial court did not err in failing to charge them.

        In the event we have misinterpreted our supreme court cases and it was error not to charge
robbery and theft, we conclude that the failure to do so was harmless beyond a reasonable doubt.
Our supreme court has applied the harmless error doctrine in situations where the jury was instructed
on at least one higher lesser-included offense and the jury, nevertheless, convicted on the greater
offense. Williams, 977 S.W.2d at 105. Such harmless error must be established beyond a reasonable
doubt. Ely, ___ S.W.3d at ___, 2001 WL 605097, at *14. We note, however, our supreme court has
been reluctant to apply the harmless error doctrine where the jury was given no option to convict on
a lesser-included offense. See Bowles, ___ S.W.3d at ___, 2001 WL 856575, at *7. Furthermore,
the doctrine has not yet been applied in a case in which no lesser-included offenses were charged.

         Nevertheless, we do not read Williams, Ely, or Bowles to absolutely preclude harmless error
in all cases where no lesser-included offenses were charged. Again, each case is fact specific. Under
the evidence presented at this trial, we conclude that the state has shown beyond a reasonable doubt
that the jury would not have convicted the defendant of simple robbery or theft had they been
charged.

       This issue is without merit.


                                          IV. Sentencing

        The sentence range for a Range I standard offender for aggravated robbery, a Class B felony,
is eight to twelve years. See Tenn. Code Ann. § 40-35-112(a)(2). The defendant challenges his
sentence of eight years and six months, arguing the trial court erroneously relied upon a previous
criminal conviction in establishing the length of his sentence. The defendant had a prior conviction
for Class A misdemeanor possession of cocaine.

       The trial court reviewed the statutory list of enhancement factors and found that factor one
(previous history of criminal convictions or behavior ) was the only applicable enhancement factor.
See Tenn. Code Ann. § 40-35-114(1). The court found the defendant had prior physical injuries
from an accident and applied it as a mitigating factor, but found the mitigator was not as strong as
the enhancing factor. The trial court imposed a sentence of eight years and six months.

       This court’s review of the sentence imposed by the trial court is de novo with a presumption
of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption is conditioned upon an
affirmative showing in the record that the trial judge considered the sentencing principles and all
relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).



                                                 -7-
         A trial court should start at the minimum sentence, enhance the minimum sentence within
the range for enhancement factors and then reduce the sentence within the range for the mitigating
factors. Tenn. Code Ann. § 40-35-210(e). No particular weight for each factor is prescribed by the
statute, as the weight given to each factor is left to the discretion of the trial court as long as the trial
court complies with the purposes and principles of the sentencing act and its findings are supported
by the record. State v. Moss, 727 S.W.2d 229, 238 (Tenn. 1986).

        The sentence of eight years and six months imposed upon the defendant, only six months
above the minimum, is adequately supported by the record and is in conformity with the purposes
and principles of the sentencing act. Therefore, we decline to disturb the sentence imposed by the
trial court.


                                            CONCLUSION

        Based upon our examination of the record, we affirm the judgment of the trial court.


                                                  ___________________________________
                                                  JOE G. RILEY, JUDGE




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