# FILED
July 30, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE

AT NA SHVILLE APRIL 1997 SESSION

STA TE OF TENN ESSEE, ) ) Appellee, ) C.C.A. No. 01C01-96 0 4-CR-0014 1 ) vs. ) Davidson C ounty ) MICHAEL A NTHONY REVLETT ) Honorable Thomas H . Shriver , a/k/a MIKE REVLETT ) Judge ) Appellant. ) (Aggra vated Robb ery, ) Aggravated Assault)

FOR TH E APPEL LANT: FOR THE APPELLEE: JOHN E. RODGERS, JR. JOHN KNOX WALK UP Attorney at Law Attorney Gen eral & Repor ter First Ameri can Center 315 Deaderick

St., Ste. 1230 MERRILYN FEIRMAN Nashvil le, TN 37238-1230 Assistant Att orney Gener al Criminal J ustice Div ision 450 James Roberts on Parkway Nashvil le, TN 37243-0493 VICTOR S. JOH NSON, III Distric t Attorney General NICHOLAS BAI LEY Asst. Dist rict Attor ney General W ashington Square 222 - 2d Ave. , Ste. 500 Nashvil le, TN 37201-1649
OPINION FILE D: ____________________
AF FIRMED
CURWOOD WITT JUDGE

OPINION1 Ms. Shye w as employed as

a clerk of the mar ket. Connie C hapman sometimes cleaned and restocked at the market in exchange for foodstuffs. Chasity Chapman is the min or daughter of Connie Chapman, w ho was helpi ng her mother on the d ate in questi on.

2 The evidence supports the inf erence that the gun was loaded becau se the weapon was subsequently fired at other witnesses.

The defendant, Michae l Anth ony Rev lett a/k/a Mi ke Revlet t, was convicted followinga jury t rial of agg ravated ro bbery and four counts of aggravated assault. The Davidson County Crim inal Cou rt, Judge Thoma s H. Shriver p residing, sentenced the defendant, a Range II offender, to nine year sentences for each of the four aggrav

ated assault con victions , to be served concurrently to each other but consecutivelyto a fifteen year sente nce for the aggrav ated robbery

convicti on. In this direct appeal , the defendant alleges (1) the tr ial court erred in allowing the jury to consider the offense of aggravated assault on t wo counts of theindictment alleging aggrav

ated robbery , rather than di smissing these tw o counts of the indictment

ou t right, ( 2) the evi dence is insuffici ent to support hi s convic tions, and (3) the sentence is exces sive. We affirm the judgment of the trial cour t.

The evidence is largely undisputed, except for the identi fication of the defendant as the perpetr ator of the crim es. Based upon the evidence developed bythe prosecution at trial, on October 1, 19 94 at sometime betw een 7:00 and 7:30 p.m., two men entered the Money Sav er Market o n Robertson R oad in Nashv ille. Candy Shye, Connie Chapman and Chasi ty Chapman were present i n the store. 1 One of the men position ed himself by the door and a cted as a "lookout" during the following events. The other man brandi shed a handgun at Connie Chapman, w ho
was talking on the telephone, and thre atened her. Paralyzed with fear, Ms. Chapman fell to the gr ound. The gun-w ieldi ng robber then demand ed that Ms. Shye give hi m the money from the cash register. As Ms. Shye opened the register, t he gun-wi elding robb er pulled back the hammer on his weapon, w hich he was holding against M s. Chapman's head. 2 As Ms. Shye complied with his demands,3 The de fend ant was ind icted f or aggravate d assau lt of Ha rold King;

however, the Carters testified they were with Joe King. In all likelihood, Harold King and Joe K ing are the same indivi dual. No w itness w ith the last n ame of King testi fied at trial, and the state dis missed the count of the indictment pertain ing to aggrava ted assa ult of Harold Kin g. 2 he pointed the weapon at each of the two women and the child. He also address ed Ms. Shye an d the minor Mi ss Chapman w ith threatening , profane languag e, explici tly threatening to ki ll the chil d.

After Ms. Shye gave t he gu n-wi elding robb er about $730 from the register, both robbers fled the store on foot. Three indivi dua ls who wher e in the parking lot outside t he store, John Wayne Carter , Terri Car ter and Joe King, 3 gave chase on foot. During the course of th e ch ase, th e robber w ith the gun to ld the Carters and Mr. King to g et back and fired t wo shots i n their direction. Ms. Carter and Mr. King returned to thestore, and Mr . Carter br iefly retr eated in o rder to get his bicycle. Mr. Carter res umed chase on the bic ycle. While followi ng the fleeing robbers, he saw a police officer, whom he testified he flagg ed down and informed of the direction taken by the robbers.

By this time, l aw enforcement officer s had responded to t he area of the crime and were sea rching for the robbers. Detective Ed Crouch of the Metropolitan Police Depar tment was one of

these officers. While he was searching the area, two men ma tchi ng a description of the robbers ran ou t in front of his spotlight. He obse rved the m scale a fence, and he subsequently found a shirt han ging on the fence and another shirt on a pi cnic table near the fence. He was unsure, however , whether h e saw the men g oing over the fence actually losing their shirts as t hey cleared the fence. Detecti ve Crouch forwarded a descripti on of the men he had seen ove r his poli ce radio.4 Chasity Chapman may have identified the defendant at the scene as on e

of the two robber

s, as wel l. The record is somewhat equivocal as to w hether Miss Chapman w

as still at the market at t his point.
5 This ap pears to be a ref erence to Harold King and/ or Joe Kin g. 3 The officers on the sc ene determined tha t the suspects were likely inside the premises of the ap artment complex where Detective Crouch had seen t hem ju mp th e fe nce. The o ff icers esta blish ed a p erim eter arou nd th e com plex. While maintaining this perimeter, Office r Tim Sullivan saw the defendant walk out of the apartment comp lex. The officer observed tha t the defenda nt had grass, dirt and fresh, bloody

scratches on his shirtless body. The d efe nda nt was also sweat y, hot and s mell ed of alcohol. The defendant told Officer Sull ivan he had been in a fightwith his girlfri end and had been dropped off at the apartment compl ex. Based on the defendant's physical appeara nce and his si milarity to the descript ion given by Detecti ve Crouch , Officer Sullivan suspected the defendant of perpetrating the robb ery. Officer Sulli van took the defendant to theMoney Saver Market, where he
was identified by Detectiv e Crouc h as one of the me n he had seen run into his
s potlight and over thefence, by Conni e Chapman and Candy Shye as thegun wieldingrobber, 4 by Terri Carter as the man whoshot at her husband, Joe Kingand her, and by "M r. Harold Kind" 5 as the man he had chas ed.

No second suspect was ever located. Li kewise, neither a weapon nor any money w

as ever recovered.

The defendant was charg ed in a six-count indictment w ith (1) aggravated robbery of Candy Shye, (2) aggra vat ed robbery of Connie Chapman, (3) aggrav

ated robbery

of Chasity Chapman, (4) aggravated assault of John Carter, (4) aggravated assault of Terri Carter, and (6) aggra vated ass ault of Harold Kin g. The state dismissed co unt six of the indictment on the first day of tr ial. At the close4

of the state's evidence, t he court gr anted the defendant's moti on for judgment of acquittal on counts two and three as to the charged offenses ofaggrava ted r obb ery, reasoning that the stat e had fail ed to prove that either of the Chapmans was robbed bec ause nothing was taken from them. T he court ruled, however, the jury co ul d consider the off ense of aggravated assault on each of these two counts.

The defendant did not testi fy. Cindy Lepley test ified her you nger bro ther, the d efendant, was w ith her all day. Dur ing this t ime, she and the defe ndant sealed her wood deck. She testifie d the scratches on the def endant's body wer

e consistent w ith injuri es the defendantmay have received while sealing the deck, and furt her, thes e inju ries we re co nsis tent with th ose h e ma y have received while doi ng producti on work at a job she had assisted him in ob taining a fewdays earl ier. Additi onally, s he testified the defendant mi ghthave gotten grass and dirt in hi s hair w hen he was under neath the deck. M s. Lepley also testified she and the defendant were at a store buyi ng their th ird 12-pack of beer ofthe day w hen the def end ant s aw a woman he knew and deci ded to leave w ith her. This was about 6:25 or

6:30 p. m. On cross-ex amination, Ms. Lepley admit ted she did not remember

actually obser vi ng scratches on her brother's body or grass and dirt in his h air. S he al so ad mitt ed sh e had two pri or co nvict ions for r obb ery.

I In his first i ssue, the defendant cont ends the trial court er red in allowingthe jury to consider the offense of aggrav ated assault on t

wo counts of the indictment

allegingaggrav

ated robbery , rather than dismissingthese two counts of the indictment outr ight. The defendant argues aggravated assault can not be a lesser included offense of agg ravated ro bbery as al leged in cou nts two and three of the indictment because there is no alle gati on the defendant intenti onally or knowi ngly ca used the vi ctim s rea sona ble f ear o f im mine nt bo dily in jury.6 Whether suc h an a lle gat ion is, in fa ct, nece ssar y i s th e sub

jec t of Stat e v. Roger Dale Hill , No. 01C01-950 8-CC-00267 (Tenn. Crim. App., Nashvil le, June 20, 1996), perm. to appeal g ranted (Tenn. Jan. 6, 1997) . The supreme cour t has yet to issu e its rulin g. 5

An offense is general ly consi dered to be a lesser included offense of
a charged offense if the elements of th e included off ense consist of some, but not all, of the elements of

the charged offen se and if commission of the greater offense doe s not occur w ithout commissi on of the lesser offense. State v. Trusty , 91 9 S.W.2d 305, 310 (Tenn. 1996) (citation omitted). Mor eover, les ser included offenses are disting uished from lesser grade offenses, the latter bei ng establis hed bystatute. Trusty , 919 S.W.2d at 310-11. In this case, the relev ant indictments allege MICHAEL

ANTHO NY REVLETT a.k.a. MIKE REVLETT on the 1st da yof October, 1994, i n Davidson County, Tennes see . . . inte ntio nall y, or knowingly did take from the person of [victim] certain prop erty, to wit: United States currency ofvalue by violence or putting [vic tim] in fear; the robb ery accompl ished wi th a deadlyweapon or by the displayi ng ofany a rticle used or fashioned to l ead [victi m] to reasonably believe the article to be a deadly weapon in vio lation of Tennessee Code Annotated § 39-1 3-402, and against the pea ce and dignity of the State of Tennessee. An aggravated assault is commit ted where a criminal ac tor "[i]ntenti onally or knowing ly causes

another to reas onably fear i mminent bodily injury " and "uses or disp lays a deadly weapon." Tenn. Code Ann. §§ 39- 13-101(a)(2) (1991) and 39- 13- 102(a)(1)( B) (Supp. 1996). In this case, the ind ictment sufficientl y alleg es the essential elements of agg ravated ass ault. As the supreme court has recogni zed, the words "putting the person in fear" in the robbery statute sho uld be construed to make assault a les ser included offense of robbery. James v. Stat e , 215 Tenn. 221, 225, 385 S.W.2d 86, 88 (1964) (constr uing predecessor to current C riminal Code). Moreover, the defendant's complai nt that the indictment mu st fail because it fails to allege intent or know ledge is c learly unfounded. The l anguage of the i ndictment includes the w

ords "intentio nally" and "knowing ly." 6 This issue i s without merit.7 These are Miss Chapman's words, not tho se of the prosecutor.
8 Both of the Chapmans ide ntified the defendant as oneof the men who robbed the store , as well . Connie Chapman was init ially eq uivocal i n her identification at trial but later expr essed confidence i n her identification of the defendant. 6 II In his second i ssue, the defendant chal lenges the s ufficiency of the convicti ng evide nce. Spec ific ally, he atta cks the soundnes s of the identificat ion procedure based on an a llegation the assistant district attorney t ainted the state's witnesses' recollecti ons of the defendant's iden tity by showingthem pictures of the defendant just before trial. Contrary to the requi rements of the Rules of Appell ate Procedure, the defendantcites noauthority in support of thi s argument. See Tenn. R. App. P. 27(a)( 7). Cons equently, he has wai ved consider ation of this is sue. Tenn. Ct. Crim. App. R. 10(b).

Notwithstanding the a ppe llan t's wai ver of this i ssue , we note that it is without merit. Candy Shye testified sh e and t he Chapmans met w ith the pro secuti ng assistant district attorney general on the Saturda y prior to trial. Ms. Shye recalled that the prosecutor had photographs in his folder but he did not sh ow them to her nor did s he look at them. Connie C hapman testified the pr osecutor had photos in his folder and she bri efly glanced at them , althou gh he never too k them out to show them to her. Chasity Chapman testified t he prosecutor showed her a photograph of "the man whorobbed the store" 7 but she did not t hink her mother or Ms. Shye saw it. Significantly , there is noevidence M s. Shye loo ked at the photographs, and she unequivocallyidentified the def endant at trial. 8 Likewi se, the defendant was positively identified on the night of the robbery by Ms. Shye, Connie Chapman, Terri Carter, "Harold Kind" and possibly Chasity Chapman view ing the evidence in the lig ht most favorabl e to the state, as we are required to do , Jackson v. Virginia , 443 U.S. 307, 324, 99 S. Ct. 2 781, 2791-92 (1979), we would find this7

issue without merit if it was properly before us.

III In his final appellate iss ue, the defendant complai ns of an exces sive sentence. The defendant, a Range II of fende r, was g iven an effective 24 year sentence -- four concurrent nine year sentence s for each of the aggravated assault convictions, to be served consecutively to a 15 year senten ce for th e aggrav ated robberyc onvic tion. The defendant contends he is not a pr

oper candidate for
consec utive sen tencin g.

In general, consecutive sentencing may be imposed in the discretion of the trial court upon a determination that one or more of thefollowingcriteri a exist: (1) The defendant is a prof essional criminal who has knowingly devoted himself to cri minal acts as a major sourc e of liveli hood; (2) The defendant is an offender whose record of cri minal activ ity is extensi ve; (3) The defendant is a dan gerous mentally abnormal person so declared by a competent psychiatr ist who con clu des as a result of an investi gation pri or to sentenci ng th a t the defendant 's criminal conduct has been chara ct e rized by a pattern of repetitive or compulsive behavior with heedless indifference to consequences; (4) The d efen dant is a dang erous offender whos e behavior indicateslittle or

no regard for

human li fe, and no hesitation about committing a cri me in which the risk to human life is high; (5) The defendant is co nvict ed of two (2) or more statutory offenses involv ing sexual abuse of a minor wi th considerati on of the aggrav

ating circumstances ari sing from the relationship between the defendant and vi ctim or victims , the time span of defendant 's undetected sex ual activ ity, the nat ure and scope of the sexual ac

ts and the extent of the residual, physical and mental damage to the victim or victims; (6) The defendant is sentence d for an offense committed while on probation; or (7) The defendant is sentenced for criminal contempt.9 The term "multiple offender" as used by t he defendant refers to thetrial

court's classification of him as "an offen der whose record of criminal activity is extensive" under the consec utive senten cing statut e, Tenn. Code Ann. § 40- 35- 115(b)(2) ( 1990), not his Range II sent encing cla ssification. See Tenn. Code Ann. § 40-35-106 (1990 ) ("Multiple Offender" ). Although both classifications are based on a defendant's c riminal record, the application of one does not mandat e the applicatio n of the other in thesentencing process.

10 The defendant does not chall enge the factual bas is relied on by the tr ial court in cl assifying him as an offender w ith an extens ive recor d of criminal acti vity, th at is, wheth er his crimi nal re cord is "ext ensi ve" un der t he co nsec utive sentencing statute. He cont ends only th at the classi fication cannot be a pplied to him because he was convicted of inhe rently dangerous offense s. 8 Tenn. Code Ann. § 40- 35-115(b) (1 990).

The defendant contends heis not a prope r cand idat e fo r con secu tive senten cing. He says he cannot be considered a "mu ltiple offende r" 9 under C od e section 40-35-115(b) (2) or a "dang erou s offend er" under Code s ection 40-35- 115(b)(4) because the inher ent danger of thecrimesfor which he was sente nced has alrea dy been incorporat ed into the cri minal code in establishing the range of punishmentfor these crimes. 10 However, the tria l court de cline d to apply t he dangerousoffender category to the de fe nda nt an d ins tead fou nd co nsec utive sentencing appropriate bas ed upon the defendant's ex tensive record of crimin al acti vity. The state has not c hallenged t he trial cour t's reject ion of the dangerou s offendercate gory. T hus, we limit our cons ider atio n sol ely to wheth er co nsec utive sentencing is appropri ate under Code section 40-35-115(b)( 2) where the defendant has a n exte nsive reco rd of crimi nal a ctivit y.

As the defendant correctl y points out , the supreme cour t in State v

. Gray said Even though armed r obbery is

a d angerous offen se, there are increased pena lti es fo r that crime. The decision to impose cons ecut ive sentences when crimes inherently dangerous are involved should be bas e d upon the presenceof aggravating circumstances

and not merely

on the fact that two or

more dangerous crimes were committed.11 Gray enun ciat ed se veral cate gorie s of indivi dua ls fo r whom cons ecut ive sentencing i s appropriate. For the most part, those cat egories were incorpor ated into the consecu tive sentenc ing statute. See Tenn. Code Ann. § 40- 35-115(b) (1990) and Sentenc ing Comm'n C omments (acknow ledging that Gray is essentially codified in section 40-35-1 15). Both of the categories relevant to th is opinion, an "offender w hose record of cr iminal activ ity is extensive" and "a dangerous offender w hose behavior indicates l ittle or no r

egard for human l ife, and [who has] no hesitation abou t committing a crime in w hich the ris k to human lifeis h igh " are cod ifie d ve rsi ons of Gray categories

. Compare Tenn. Code Ann. § 40-35-115(b)(2) and (4) (1990) with Gray , 538 S.W.2d at 393. 9 State v. Gray , 538 S.W.2d 391, 393 (Tenn. 1976). This language f rom Gr ayis taken from the court's discussion of "dangerous offenders," a classificat ion identical to current Cod e section 40-35 -115(b)(4) . Again, t he defendant in this case was not consecutivelysentenced under t hat s ub section of the Code. As the quoted passage illustrates, the very argument advanced by the defendant was consi dered bythe supreme court in defining w hen a dangerous offen der may be consecutively sentenced. Rather than al lowing wholesal e consecutive sentencing of dangerous offende rs who are al ready subj ect to lengt hy terms for the commission of inherently dangerouscrimes, the Gray court endorse d consecutive sent enc ing only where aggravating cir

cumstances ex ist.

The Gray

court we nt on to hold: However, [the failure to find aggrav ating circumstancesas related to a dangerous offender] d oes not preclud e the trial court from imposing co nsecu tive sentencing for the commission of dangerous offenses where no aggravati ng c ir cumstances are p resent if evi dence indicates that the defendant should be s entenced u nd er one of the other classifications. 11 Gray , 538 S.W .2d at 393-94. In the case a t bar, the court did preciselywhat Gray allo ws -- failing to find the def endant a dangerous of fender, the court ne vertheless imposed consecutive sentences thr ough another cl assificati o n for which
cons ecut ive sentencing was appropriate. Accordin gl y, we reject the defendant's argumentthat a "multiple offender" under Code section 40-35-115(b)( 2) convic ted of two or m ore in here ntly dangerous crime s is no t elig ible for c onse cuti ve10

sentencing.

In co nclusion, we fail to find merit in any of the issues prese nted b y the d efendant. We affirm the defendant's convicti ons and the sentenceimpo se d on him by the t rial court

.

_______________________________ CURWOOD W ITT, JUDGE
CONCUR:

_______________________________ GARY R. WADE, JUDGE

_______________________________ DAVID H. WELLES, JUDGE