### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE STATE OF TENNESSEE v. JASON C. CARTER, ET AL 

### . Direct Appeal from the Criminal Court for Davidson County

No. 97-A-37 Seth Norman, Judge

No. M1998-00798-CCA-R3-CD - Decided April 27, 2000

The defendants appealed

their convictions for the especially aggravated robbery of the two victims and vandalism of the car of one of the victims. Additionally, Carter was convicted of the unlawful possession of a weapon. In their appeal, the defendan ts assert that the trial court should have instructed as to lesser-incl uded offense of

aggravated ass

ault, that the proof

of especially aggravated robbery was not sufficien t, and that their

sentences were inappropriate. Based upon our review,we reverse the convictions of both defendants as to especially aggravated robbery because of

the failure to instruct the jury as to the lesser-included offense of aggravated robbery. The remaining convictions are affirmed. Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed in Part and Reversed in Part.
G LENN , J., delivered the opinion of the court, in which T IPTON , J., and R ILEY , J., joined. Lionel R. Barrett, Jr., Nashville, Tennessee, for the appellant, Jason C. Carter Paul J. Bruno, Nashville, Tennessee, for the appellant, Richard D. Tucker. Paul G. Summers, Attorn ey G eneral and Repor ter, Daryl J. Bra

nd, Assistant Attorn

ey General, Victor S. Johnson, III, Dis

trict Attorney Ge

neral, and James

W. Milam, Assistant DistrictAttorney General, for the appellee, State of Tennessee.

OPINION The defendants, Jason C. Carter and Richard D. Tucker, a ppe al as of right from their jury convictions in the Criminal Court of Davidson Cou nty on tw o counts of especially aggravated robbery, a Class A felony, and one count of vand alism. Additionally, defendant Carter was convictedof the unlawful possession of a weapon. Defendant Carter was sentenced to twenty-two years imprisonment on each especially aggr avated rob bery conviction to run consecutively for a total effectivesentence of for

ty-four years. H

is three-year s

entence for va

ndalism and two-year

sentence for the unlawful possession of a weapon were t o be served concurrently. Defendant Tucker was sentenced to two years for vandalism and nine teen years imprisonment on each especially aggravated robbery conviction. The especially aggravated robbery sentences were

to be served consecutively,-2-

while the vandalism sentence was to be concurrent, for a total effe

ctive sentence o

f thirty-eight yea

rs. Defendants pre

sent the following i

ssues: I. Whether the court erred in failing to instruct the jury on the lesser-include

d offense of agg

ravated assault

; II. Whether there w

as sufficient ev

idence to support convictions for especially aggravated robbery; and
III. Whether the total effective sentences imposed are excessive. Based upon plain error, the failure to instruct as to aggravated assault, we reverse the conviction s of both defendants for especially aggravated robbery and remand for new trials, af firm the convictions of Carter for vandalism and unlawful possession of a weapon, and affirm the conviction of Tucker for va

ndalism. PROCEDURAL BACKGROUND The Davidson County Grand Jury returned indictments charging the defendant s with t wo counts o f es pecially aggravated robbery and one count of vandalism. Additionally, Carter was indicted for unlawful possession of a de adly weapon. Def

endants pleaded

not guilty to all

charges. The case was tried for four days in September 1997, before a jury which returned a verdict finding the defendants guilty as charged on all counts. FACTS The two victims and the t wo defendants

in this case were

young men in

their twenties who lived in Nashv ille. Tria l testimony concerning the events of Friday night and early Saturday morning, July 12-13, 1996, makes a truthful version difficul t to sift from the testimony. Nevertheless,

the record does support the following sequenc

e of events. The victims, Dean Bell and Rodney (“Porky”) Durha

m, high school friend

s, were at Shooter

’s, a sports bar in the Hermitage area of eastern Nashville, on Friday night, July 12, 1996. Wh en they lef t Shooter’s sometime after midnight, Durham was driving his red Nissan and Bell was in the front passenger seat. The t wo were looking for a place to get something to eat when Durham’s beeper went off. They pulled into an Arby’s where

a pay phone was si

tuated in front of the parking area, close to Lebanon Road, so that Durham could answer the call, which he said was from his girlfriend. Although the Arby’s was closed, the area was well-lit. While Durham and Bell we re looking for

change, a small white car with two young men in it pulled up alongside. There is contradictory testimony as to whether the four men knew each other. Bell testified that he did not know either of the defendants, but that “[w]ell, I had seen one of th

em, maybe, just his face looked fa

mil iar maybe.” Durham testified that he did not know or recognize either defendant. Carter, on the other hand, testified that he had been drinking at Shooter’s with the two-3-

victims earlier in the evening. Defendant Tucker was positively identified by both victims as the driver of the white car and defendant Carter was identified as the passenger. Carter denied that he was at Arby's during th e evening or early morning hours when the robbery occurred. Tucker did not tes tify during the tria

l.
Dean Bell, the passenger in Durham’s car, testified that Carter got out of the white car and reached through the window of the driver’s side of Durham’s car, across Durham, and tried to grab the keys. Durham and Carter struggled, with the defendant trying to drag Durham from the car. Bell testified as to wha

t happened next:
I grabbed the car door and I was going to get out and go around the car, and someone come on my side of the car. The driver fromthe other car had evidently walked over and pointed a gun at my head while I was still sitting in the car. . . . [H]e said, give me your wallet.

. . . I reached back with my right arm to pul l my wallet ou t and he smacked me across the face with the gun.

Bell then described his appearance as he looked up, “I had already had blood all over me because it busted my mouth wide open.” Questioned by General Milam, Bell testified to the following:

Q. Now , what did they do to Mr. Durham when they got him out of the car?
A. They hit him and grabbed a chain he had

on his neck, a

little gold chain. And grabb

ed his wallet and tried t

o get his money, or whatever. An

d he hit h im on the head with the revolver, and hit him a few times and just . . . Q. Did Mr. Durham, did he have any weapon of any kind?
A. No. Q. Did you have any weapon of any kind?
A. No. Q. Were you able to punch either of these people or . . .
A. No. Q. Okay. When they got Mr. D urham out of the ca

r did yo u see him resist?-4- A. No. Q. Okay, what happen ed to him after the y hit him over the head with the gun?
A. Well, they grabbed his chain, and they hit him over the head, and they got his wallet out, andthey struck him a few more times, and they kind of knocked him down and he was kind of unconsciou

s, or he wasn’t al

ert.

Bell, who hadstayed seated in the car, yelled at the defendants to stop hitting and kicking Du rham. They then turned on Bell, demanding his wallet. Bell had hidden his recently cashed paycheck for approximately $550 in a secret compartment of his wallet. When the defen dant s expressed their anger that

only $20 to $30 was in the wallet, Bell attempted to pull out more money and in so doing smeared the contents of the wallet with his blood. Bell testified that Carter yelled “just shoothim” to Tucker. Be ll also testified that he w

as forced to pull a

gold nugget ring fr

om his finger and give it

to the defendants

. Once the defendants had gotten back in the white car and started to drive off, Bell pulled Durham into the red car

and then started t

o use the pay phone . The defendants , seeing this,turned back and yelled for Bell to put

the phone down. This time, before driving out of the Arby’s parking lot, the defendants vandalized Durham’s car by smashing the rear window and

repeatedly kicking the side and door of the car. Once the defendants drove off, Bell drove in

the opposite direc

tion to the apartment of a friend, Eric Hargrove, at Arbour East Apartments. Another friend, Ralph David Tyree, testified that he was also going to visit Hargrove and was just walking to th

e door when the vic

tims drove up and park

ed. Tyree said th

at he “could

see that the gu ys were covered

in blood.” Tyree a

lso testified that D

urham asked him to g

o back to Arby’s and look for his cla ss ring. Accordin

g to Tyree, Durha

m said that “he tossed it up under the car so it wouldn’t get taken.” At Eric Hargrove’ s apartment, th e victim s attempted to asse ss the extent of the

ir injuries. Hargrove testified that Bell had “a very huge gash across his lip. He had blood all over him. H

is shirtwas covered in blood.” Hargrove saw Durham sitting outside and “he had a towel on his head and I actually gave him another towel of mine. He was bleeding th rough the one towe

l. And it was dripping down his face.” Hargr ove and Tyree c

onvinced them to le

t Hargrove drive

them to Summit Medical Center, approximately one-half mile back the way they had just come. The victims arrived at the emergency room at Summit at 1:39 a.m. and were treated by Dr. Robert Roth. Bell testified that h

e “had to have stitches right here on my top lip. It was - - had a wide gash. From my bottom lip from here to there (indicating) I had to have stitches there. And on the back of my ear, on both sides of my ear, I had to have stitches. And where I got kneed in the groin the doctor had to look at that because it was swollen.”-5-

Dr. Roth testified thatBell had “roughly four lacerations. There was a, what we call a trap door type laceration in the area just below his nose. And then there was a check or a L-shape d lacerationbelow his left lip and extending laterally.” Bell also had a laceration on the front of his left ear and a “through and through” laceration behind the left ear. Dr. Roth found Bell’s lacerations consistent with blows from a handgun. Dr. Roth testified that Bell’s lacer

ations were “cosmetically disfiguring.” Dr. Roth also found swelling of

the left testicle consistent with Bell’s complaint of being kicked in the

groin area. Bell w

as discharged a

fter approximate

ly four hours. Rodney Durham

testified that once he was out of the car, defendant Tucker, who had been on Bell’s side of the car, came over to him and “hit

me in my mouth, hit

me up the side of my head.” Durham further testified that Tucker used the barrel end of the gun. When asked how he was hit in the head, Durham

testified, “I don’t know, Ijust went to the ground and that’s all I really know. I know it had to be with the gun.” Durham recalled pleading with the defendants, “don’t shoot me, please, don’t shoot me.” Durham also recalled being helped into the car by Bell after the attack and going to Hargrove’s apartment, but he was confused about what had happened until he arrived at the hospital where he received stitches in his head and mouth. Dr. Roth testified c

oncerning the inju

ries sustained by D

urham:
He had a two and a

half inch scalp

laceration over the crown or the cranial aspect of the

head which is the sagittal or midline aspect of the head. And the

re was a fairly l

arge clot in the wo

und at t he time.
He also had a T-shaped la ceration over th

e lateral aspec

t of his m out h, the corner of his mouth. He had some a brasions to his shoulders and bony prominenc es, for instance

, the elb o w, the knee, and things like that

.

. . . . The laceration on the

head, the scalp la

ceration, is not a

fist lac eration. To sustain a burst or a blow-out type laceration o f th e scalp, you have to be hit fairly hard with either an object or your head run into an ob

ject, something fairly firm, that would cause the implosion. A punch would never cause that type of laceration.
Dr. Roth prescribed both antibiotics and pain medicationfor Durham. Because of the type of wound sustained by Durham, an X-ray was required to determine that he had not

suffered an injury to the skull itself. Durham was released after approximately two hours. While at the hospital, B ell and Durham were questioned by police officers and gave consistent descriptions of the def

enda nts and of the white car with a temporary tag in the rear window. Bell told police thatneither of their assailants wore a shirt. Police dispatchers broadcasted-6-

the descriptions, anda report came in shortly thereafter that two individuals and a car matching the description had been spotted a t a Kroger store o

n Old Hickory Boule

vard in Hermita

ge. The ca ll from Kroger was the result of two encounters between the defendants and employees at the Kroger. Earlier that night, at about 11:00 p.m., employees had observed two, young, shirtless men who c ame into the store and then left. Approximately two hours later, they both returned , this t ime wearing shi rts. One man now had blood on his pants and a bandana wrapped around one of his hands

. Employee Jeff Fitzgerald saw a bulge under t he shirt of one of the individuals, and a gun was exposedwhen the man moved. Fitzgerald positively identified defendant Carter as one of the two men at the store but was unable to identify defendant Tucker or testify as to which defendant had the gun. After

observing the two m

en get into

a four-door, white car with a temporary tag and circle suspiciously

around the parking lot, the Kroger night manager called the police. By the time Officer Ronald Steele of the Metro Police Department arrived at the Kroger store,the car was gone. Officer Steele decided to check out all the “drive-up” markets in the area. He was looking fora white, fourdoor sedan driven by two white males with a drive-out tag in the rear window. Officer Steele soon spotted the car at a nearby RaceTrac gas st

ation. One of the o

ccupants had gone to the cashier’s window, while the other was in t he car when the officer approached. Officer Steele saw a pistol, which he later identified as a Ruger Security Six .357 revolver, on the driver’s side floorboard. Based on the descri ption of the individuals and of the vehicle and the presenceof

the gun, the officer took into custody the occupant, defendant Carter. The other man, whomOfficer Steele identified as defendant Tucker, ran into a nearby wooded area and disappeared. Dean Bell’s bloodstained wallet was found in the backseat

of the white car. Several days later, after the victims had given p ositi ve identifications of the defendants from photographic lineups, the police arrested both defendants pursuant to aggravated robbery warrants at the residence of defendan t Tucker’s girlfriend at Arbour East Apartments. Of the two defendants, only Carter testified during the trial. He denied that he had been at the Arby's that evening or that he had robbed either of the victims. Carter said that he had known the victim, Rodney “Porky” Durham, sincethey were young boys playing on a football team. Carter testified that

he, Durham, and Bell, had all been drinking together at Shoote r’s on the evening

of July 1 2, 1996; that they wer

e “regulars” th

ere; and that the

y all left together

to sit in Carte

r’s car an d smoke marijuana. Carter testified further that Durham and Be

ll wanted to

go to another bar, but he did not w ant to drive around in his car since he did not have a valid license. The plan was fo r Durham and Bell to follow Carter to Arbour East Apartments w

here Carter sai

d he would

leave his car with a friend, who was the co-defendant, Tucker. Once there, the three walked to the apartment where Tucker lived. Carter testified to the fo llowing events once Tucker opened the door and Durham saw who it w

as: [H]e [Durham] went up under his shirt. I t was a beige shirt. I seen a chrome gun. Then Richard [Tucker] hit hi m. T hey start[ed] fighting. Mr. Bell tried to jump on Richa rd’s back. I grabbed Mr. Bell. Mr. Bell then swung at me. I ducked. He hit the wall. He was-7- kind of in a scrunched position, po ints down like his hand was hurting, and then I

tackled him. We f

ell against the ra

il.

. . . . I was on top of his back, and I was striking him i n the face. I was hitting him. He elbowed me. I kind of fell off. He got up and started to run. I kicked his leg, and he fell up against a brick wall. .

. . It’s like this concrete

wall, and it cuts, and it’s a rail right there. Where the steps are going downstairs, there’s a rail. Then Richard’s do or is right here. Defendant

Carter testified that the gun which Durham pulled out of his shirt fell on the ground. After Durham and Bell left, Carter testified that he went to another friend’s house to find outif he knew of anyone who would buy the gun. An i ndividu al Carter identified as “Troy” answered the door. Carter testified that it was Troy who was in the car with him later at Kroger’s and who ran into the woods at the RaceTrac gas station in the early morning hours of July 13. Carter testified that he di d not know T roy’s last name or his whereabouts.

Carter was aske

d by defense counsel, “Were yo u ever involved in a fight or robbery with these, Mr. Bell and Mr. Durham, at Arby’s over on Lebanon Road?” Carter responded, “No, sir.” Defendant

Tucker did

not testify at trial, but his sister, Lynn Green, and her husband, Mark Green, both testified, describing a sequence of events that corroborated the testimony of defendant Carter concerning a fight at

Tucker’s apartment. Ms. Green testified that she, her husband, Tucker, and Tucker’ s girlfriend were all at Tucker’s apartment at Arbour East when someone knocked on the door at

about 12:30 a.m. on July 13, and Tucker went to thedoor. Ms. Green further testified: Well, there was two guys standing there I didn’t know when

we first openedthe door. And one of them had - - he raised up his shirt when he saw Richard come to the door. And he had a gun at the top of his pants, and he said, “I know who you are. You are - - you’re the” - - then he said a cuss wor

d, M.F. - - “that rip

ped me off a l ong time ago.” And then Richard pushed him out the door, and they started fighting.-8-

Mark Green, a four and one-half-year veteran of t he Un ited States Marine Corps, testified that he heard the fighting and heard his wife, who had gone outs ide with Tucker, “ yell he’s got a gun.” Gr een testified that he then grabb ed his one-year

-old son and went in

to the kitchen with Tucker’s girlfriend and her daughter for safet y, leav ing his wife at the front of the apartment. He remained in the kitchen for

approximately twe

nty to thirty

minutes, until his wif

e and Tucker ca

me into the kitchen. He did not telephone the police.

ANALYSIS I. Evidence as to Serious Bodily Injury Defendants

contend that the State failed to prove that the v ictims sus tained serious bod ily injury, and therefore

the evidence prese

nted at trial was in

sufficient for a

conviction for es

pecially aggravated

robbery. Our standard of review, when the sufficiency of the evidence is challenged by defendants,

is “whether, after viewing the evidence in the light most favorabl

e to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virgini a , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). It is notour prerogative

to reweigh the ev

idence. Rather,

we presume that th

e ju ry has r

esolved all conflicts in the testimony and drawn all reasonable inferences from the evidence in favor of the State. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). “Serious bodily injury” is defined by statute in the following way: “Serious bodily inju

ry” means bodily in

jury which involve

s: (A) A substantial risk of death; (B) Protracted unco

nsciousness; (C) Extreme physical pain; (D) Protracted or obvious disfigurement; or (E) Protract ed loss or substantial impairment of a functio n of a bodily member, organ or mental faculty[.] Tenn. Code Ann. § 39-11-106(34). Previously, this cou rt has con sidered whether a victim's injuries could be classified as “serious bodily injury.” In State v. Zonge , 973 S.W.2d 250, 255 (Tenn. Crim. App. 1997), perm . app . denied(Tenn. 1998), the victim of a burglary had “suffered bruises to her shoulder and back,-9-

a knot on her

head, and four stitches.” Concluding that the pain associated with these injuries was “not of the same degree

as that associated with the other classifications of serious bodily injury,” the court modified the defendant's conviction from especially aggravated burg lary to aggravated burglary. Id . The court consid ered the State's a

rgument that these

injuries re sulted in “extreme physical pain”: This court addressed a similar argument in State v. Sims , 909

S.W.2d 46 (Tenn. Crim. App. 1995). The victim in Sims received a broken nose , a bruised cheekbone, black and blue eyes, and a lacerationacross the bridge of her nose. Apply

in g the ejusdem generis canon of statutor

y construction, thi

s court explained that the extreme physical pain

definition of seri

ous bodily injury must

be read as applying to the same class of injuries as those causing a substantial risk of death, protracted unconsciousness, protrac ted or permanent d isfigurement

or the loss of impair

ment of the use of a

bodil y member, organ or

mental faculty. Sims , 909 S.W.2d at 49. Beca use the proof in Sims did not establish the type of extreme physical pain neces sary to support a finding of serious bodily injury, this cou r t modified the defendant's convicti on from especially aggravated robbery to aggravated robbery. Id. at 50. Zonge , 973 S.W.2d at 255. Likewise, in State v. Barnes , 954 S.W. 2d 760, 765 ( Tenn. Crim. App. 1997), the court concluded that the victim who had received “several knots on the back of the head and bruises on the back . . ., a burn on the. . . nose from a light bulb, and a single bite on the arm” had not sustained “serious bodi ly i njury.” Additiona lly, a “broken nos

e and a bruised c

heekbone” resu

lting in swelling, loss of teeth, five weeks missed from

work, and “extre

me physical pain over [the] whole face” did not support a cla imof “serious bodily injury.” State v. Sims , 909 S.W.2d 46, 48 (Tenn. Crim. App.), perm . app . denied (Tenn. 1995). The testimony presented by the State was that the defendants bea t the victims

primarily by using a gun and b y kick ing Durham when he was on the ground. A photograph of Bell’s injuries taken th e day after

the attack was entered as evidence and available to the jury. Dr. Robert Roth, attending physician at the emergencyroom at Summit Medical Center, testified as to the treatment eachvictim received.

Dr. Roth testified t

hat Bell’s facia

l injuries were “

disfiguring” and w

ould require ongoing medical attention from plastic surgeons. Additionally, Bell suffered from swelling of the left testicle a

nd soreness in his r

ight hand, which he

had use d to fend off blows to his face. Dr. Roth also testified that the head woun d Durham suffer

ed was asignificantly large, deep, blowouttype laceration of the skull, indicating significant force. He described the lacerations of Durham as being more “poten

tia lly dange rous” than those o f Bell. Dr. Roth said

that he prescrib

ed pain medication for Durham

because of the p

ain resulting from the “rather significant” blows to his head, and the abrasions to his “shoulder, elbow and knee were rather extensive and would be somewhat painful as the swelling persisted.” Therefore, based upon the testimony, the evidence supports the-10-

jury’s findings that both victims suffered serious bodily injury.
II. Lesser-Include

d Instructions Based upon the evidence presented by the prosecution, the defendants have claimed that the trial court should h

ave instructed th

e jury as to aggra

vated assault. First, we will

determine whethe

r aggravated a

ssault is a lesser-inclu

ded offense of e

specially aggravated robbery with which the defendants were charged.
In State v. Dominy , 6 S.W.3d 472 (Tenn. 1999), our supreme court overruled State v. Trusty , 919 S.W.2d 305 (Tenn. 1996), to the extent that it had recognized “lesser grade” offenses as being distinct from lesser-included offenses and had allowed convictions for “lesser grade” offenses which were not lesser-included

offenses under the statute for which the defendant was indicted. State v. Burns , 6 S.W.3d 453 (Tenn. 1999), a decision released the same day as Dominy , replaced the Trusty approach with an analysis which we will apply to this matter. The following definition of “ lesser-included” offenses was adopted in Burns , 6 S.W.3d at 466-67: An offense is a lesser-included offense if:

(a) all of its statutory elements are included within thestatutory elements of the offense charged; or (b) it fails to meet the definition in part (a) only in the respect that it contains a statutory element or elements establishing (1) a different mental state indicating a lesser kind of culpability; and/or (2) a less serious harm or risk of harm to the sam e person, property or public interest; or (c) it consists of (1) facilitation of

the offense charged or of an offense that otherwise me

e ts the definition of lesserincluded offense in part (a) or (b); or (2) a n attempt to commit the offense char ged ora n offense that otherwise me

ets the definition of lesser-included offense in part (a) or (b); or (3) solicitation to c ommit the offense charged or an offense that otherwise meets the defi nition of1 The tests, however, may not be identical. Part (a) of the Burns test provides that an offense is lesser-included

if “all of its statutory elements are included within the statutory element s of the offense charged[.]” Burns , 6 S.W.3d a t 466. Howard , on the other hand , provides that an o

ffense is “necessarily

included in another if the elements of the greater offense, as those elements are set forth in the indictment , include, but are not congruent with, all the elements of the lesser.” Howard , 578 S.W.2d at 85. While the difference

is of no consequen

ce to the facts of the present case, there may be cases in wh

ich the differe

nce is material.

-11- lesser-included offense in part (a) or (b). Section (a) of the Burns definition utilizes a statutory elements approach consistent with that set out in Howard v. State , 578 S.W.2d 83, 85 (Tenn.1979): 1

[A]n offense is nece

ssarily included in

another if

the elements of

the greater offense, as tho se elements are set forth in the indictment include but are not congruent with, all the elements of the lesser. Applying the approach established in Burns , we conclude that aggravated ass

ault is alesserincluded offense

of especially aggravated robbery. The State has conceded that, under the Howard test, the elements of especially aggravated robbery, as set forth in the indictment, i nc lude the elements of aggr

avated assault.
At the conclusion of the trial in this case, the tr ial court instruct

ed the jury only as t

o especially aggravated robbery, vandalism, and illegal possession of a firearm. At trial, defendant Carter had requested instructionon the lesser-included offense of aggravated assault; and the refusal of the trial court to do so was set out as an issue both in his motion for new trial and on appeal. In determining whether the trial court should have instructed as to the lesser- in cluded offense of aggravated assault, we will apply the test set out in Burns :

First, the trial court must determine whether any evidence exists that reasonable

minds could accep

t as to the lesser-

in clude d offense. In making this determination, the trial court must view the evidence liberally i n the light most favorable to the existence of the lesserincluded offense without making any judgments on the credibility of such evidence. Secon

d, the trial court m

ust determine if

the evidence, viewedin thi s light , is legally sufficient to support a conviction for the lesser-included offense.
Burns , 6 S.W.3d at 469.
Aggrav atedassault is defined at Tennessee Code Annotated § 39-13-102(a) (1997). Tha t statute provides, in pertinent part, that a person commits aggravated assault who:2 Although defendant Carter requested that the trial court ins

truct as to aggravated assault and raisedthe court’s ref

usal to do so both

in the motion for new trial and as an issue on appeal, Tucker didnot so argue unti

l his reply br

ief was filed with

this court. He had ne

ither requested

this instruction in the trial nor ra ised as an issu

e the trial court’s failure to instruct as to the lesserincluded offense as an issue in the motion for new trial. Accordingly, a s to Tucker, this issue was waived and cannot now be raised on appeal. -12-

(1) Intentionally or knowingly commits an assault as defined in § 39-13-101 and: (A) Causes serious bodily injury to another; or (B) Uses or displays a deadly weapon. A person commits assault who: (1) Intentionally, knowingly or recklessly ca

uses bodily

injury to another; (2) Intentional ly or knowingl y causes another to reasonably fear imminent bodily injury; or (3) Intentionally

or knowingly cause

s physical contact with another and a reasonabl

e person would regard the

contact as extremely offensive or provocative. Tenn. Code. Ann. § 39-13-101(a). During the trial in this matter, the victims testified that they were assaulted and robbed by the defendants. Only defe nda nt Carter testified during the trial, and he denied that he had robbed the victims or even been at theArby’s parking lot that evening, where the victims testified that the robbery occurred. Thus, given this test

i mony, the only two possibilities are that the incident occurred as the victims testified, or it did not occur at all. Viewing this testimo ny inthe “light most favorable to the existence o

f the lesser-inc

luded offense wi

thout making any judg

me nts on the credibility

of such evidence,” Burns , 6 S.W.3d at 469, we conclude that no evidence was presented which reasonable minds could accept as to aggravated assault. Thus, we conclude that it was not error for the trial cour

t not to instruct the j ury as to the lesser-included

offense of aggr

avated assault. 2 However, considering the testimony and proof regarding the injuries to the victims in the light most favorable to the defendants, the evidence regarding the nature of their injuries mandated an instruction as to aggravated robbery. It was plain error for this instruction not to have been given and, accordingly, we reverse the convictions of both defendants

as to especially aggravated robbery-13-

and remand for a new trial. Tenn. R. Crim. P. 52(b). III. Appropriateness of Sentences
Carter and Tucker argue

that their effec

tive sentences a

re excessive both a

s to their respective lengths and consecutive nature. When a defendant challenges the length, range, or manner of service of a sentence, this court conducts a de novo review with a presumptionthat the determinations made by the trial court are correct. See Tenn. Code Ann. § 40 -35-401(d); see also State v. Anderson , 880 S.W.2d 720, 727 (Tenn. Crim. App. 1994). That presum ptio n is conditioned on an affirmative showing in the record

that the trial court did in fact consider sentencing principles and all relevant facts and circumstances. See State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991) (finding that the “presumption of correctness which accompanies the tri al co urt’s action is conditioned upon the affirmative showing in the re cord th at the trial court co nsidered the sent

encing princip

les and all relevant facts and circumstances”). The bu rden is on the defendant to show that the sentence

is inappropriate. See Tenn. Code Ann. § 40-35-401 Sentencing Commission Comments. When our review supports a conclusion that the trial court imposed a lawful sentence, “then we may not disturb the sentence even

if we would have preferred a different result.” State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). In sentencing the defendants, the court stated:

All right. The Cou rt h as s tud ied the se m att ers care ful ly. And the Courtfinds in both cases I am going to am end the enhancement factors: I’ll apply

number one; I

will apply num

ber eight; I ’ll apply number nine; I’ll app

ly number ten; and, I’ll apply number thirteen, in both cases. I

find no mitigating

factors. Under Section 39-15-402 [s

ic] on multiple convictions: I find that number

two applies; I find that number four applies; and, I find that number six applie

s, with regard t

o both defendants

. It appears to me, from what I heard, that Mr. Richard Tucker has been honest

with the Court. It appears to me, from what I heard that Mr. Jason Carter has not been honest with the Cou rt. The Court is going to take that into considerat ion in the s entencing.
With regard to the se

ntencing in this

case it i s the judgment of the Court that, with regard to the Defendant Richard Tu c ker, Count One, he be sentenced to the Department of Correc tions for a period of nineteen years a s a range one standard offender at thirty percent-- excuse me--at eighty-five

percent. In Count Two he will be sentenced to the Department of Corrections for a period of nineteen years as a range one standard off

ender. It wil

l run at eighty-five

percent. Count3 The statements were not accurate re

garding the “eigh

ty-five percen

t. ” Tenness ee Code Annotated § 40-35-501(i)(1)-(2) provides that a person committing especially aggravated robbery shallserve one hundred percent of the sentence imposed

by the court. Credit authorized by § 41-21- 236, or other provision o f law, may reduce time served up to a maximum of fifteen percent. The credits under § 41-21-236 are not automatic but are earned by the inmate. Therefore, the accurate statement of the time to be served by d efendants on Count One and Count Two is one hundred percent. -14-

Three, he [will] be sentenced to the Department of Corrections for a period of two years as a range one standard offender at thir

ty percent

. Count One and

Count Two will run consecutive, one with the other. Count Three will ru

n concurrent. With regard to the Defen da nt Jason Carter it’s the judgment of the Co urt, with regard to Count One, he be sentenced to the Department

of C orr ect ion s fo r a pe rio d of twe nty- two ye ars. W ith regard to Count Two it’s the judgment of the Court he be sentenced to the Department of Corrections for a period of twe nty-two years. With regard to Count T

hree it’s the judg

ment of the Court he be sentenced to the Department of Corrections for a period of three years. With regard to Coun t Four it’s the judgment of the Court he be sentenced to the Department of Corrections fo r a period of two years. Count One and Count Two will run consecutive, one with the other. Count Three and Count Four wi ll run concurrent. That’s an effective for

ty-four y ear sentence a

t eighty-f ive percent.
With regard to

Mr. Tucker, General, it is an effective thirty-eight year sente nce at eighty

-five percent. That’s the judgme

nt of the Court. 3
Both defendants were sentenced as standardoffenders for a Class A felony, a status which provides a

sentencing range of fifteen to twenty- five years. See

Tenn. Code Ann. § 45-35-112(a)(1). “The presumptive sentence for a Class A felony shall be the midpoint of t he r ange if there are no enhancement

or mitigating factors.” Id . § 40-35-2 10(c) . If the trial court applies ina

ppropriate factors, the sentence’s presumption of correctness fails. See State v. Shelton , 854 S.W.2d 116, 123 (Tenn. Cri m. App. 199 2) (citing State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991)). In this case, the numbered sections were recited without detail as to how they were being applied to enhance the sentences and support consecutive sentences. Therefore, we review both the enhancement factors and the factors supporting consec utive sentences de novo on the record with no presumption of correctness. A. Length of Sentences-15-

Tennessee Code Annotated § 40-35-114 provides for enhancement factors that the trial court may, if appropriate

and if not themselves essential elements of the of fense charge

d in the indictment, apply to increase the sentence within the applicable range for the offense. The trial court applied each of the follo

wing enhancem

ent factors: (1) T he defendan t has a previous history of crimina l co nv ictions or criminal beha vior in addition to tho

se necessary to establish the ap

propriate rang

e;

. . . . (8) Th e defendant has a previous history of unwillin gnes s to comply with the co nditio ns of a sentence involving release in the c

ommunity; (9) The defendant possessed o r e mployed a firearm , explosive device or other deadly weapon duri n g the commission of the of

fense; (10) T he defendant had no hesitation abou t committing a crime when the ri

sk to human life was

high;

. . . . (13) The felony was committed while on a ny of th e following forms of release status if such release is from a prior felony conviction: (A) Bail, if the defendant is ultimately conv icted of suc h pr ior fel ony: (B) Parole; (C) Probation; (D) Work release; or (E) Any other type o

f release into the community under the direct or

indirect supervision of the department of co rrection or loca l governmental authority[.] Tenn. Code Ann. § 40-35-114.-16-

As to factor (1), d efendan t Carter’s presentence report revealed at least eight prior co nvi ctions on charges such as assault, malicious mischief, criminal trespassing, and indecent exposure. In 1993, he

was convicted of both robbery and sexual battery and was sentenced to five yearsin the workhouse. As to factor (1), Tucker’s presentence report reveale d prior convictions on three counts of burglary, four counts of theft, including two counts of theft ove r $10,000, and numerous driving offenses. Thus, the record reflects the proper application of enhancement

factor (1) as both defen

dants.
Factor (8) looks to the previous history of the defend ant in the cri minal justice sy stem to determine how wi l ling the defendant has been to comply with conditions of release into the community

after convictio

n for an offense . All four of defe ndant Tucker’s t

heft convictions i

n 1995 were served in the community corrections program. He w as in that program at the time he committed a ser ies of b urgl ari es at a mi ni- sto rage faci lit y. Defendant Carter had prior revocations of probation. We conclude the record reflects the proper application of enhancement fa ctor (8) as to both defendant

s. Use of a deadly

weapon, the cond

ition in factor (9), is an element of the offense. Factor (10) is also an element of

the offense sinc

e “there is nece

ssarily a high risk

to human life and the great potential for

bodily injury whenever a dea dly weapon is used.” State v. Nix , 922 S.W.2d 894, 903 (T enn. Crim. App. 1995); see also State v. Hicks , 868 S.W.2d 729, 732 (Tenn. Crim. App. 1993) (finding that fact or (10), abs ent any proof of risk to life other than the victim’s, was an essential element of aggravated robbery).

Therefore, we conclude

that neither fac

tor (9) nor (10) w

as properly applied to the def

endants.
Defendant

Carter was on

probation for a prior felony, and therefore factor (13) clearly was applicable

to him. See Tenn. Code Ann. § 40-35-114(13)( C). Defendant Tu

cker was on commu

nity corrections at the time of

his conviction, which would be applicable under this factor as “[a]ny other type of release into th

e community u

nder the direct o

r indirect s

upervision of the department of correctionor local governmental authority.” Id . § 40-35-114(13)(E). We conclude that factor (13) was appropriately applied to Tucker. Thus, although the trial court erred in applying

factors (9) and

(10) to enhance

the defendants' sentences,

we find tha t the re maining f actors ju stify t he senten ces impose

d by the trial cou rt. We notethat defendant

Tucker’s sentence of

nineteen years on each especially aggravated robbery count was less than the pres

umptive sentence

of twenty y

ears for a Class

A felony an

d attribute

this to the fact that the trial judge decided to consider

the fact that Tuc

ker told a truthfu

l account of the e

vents at the sentencing

hearing. We, the

refore, affir

m the imposition of the

sentences. B. Consecutive Nature of Sentences
Fin all y, the defendants a

rgue that their

sentences for e

specially aggravated

robbery sh

ould notbe served consecutively. According to the statute, the orde ring of consecutive sentences is purely dis cret ion ary; nevertheless, the trial court must find by a preponderance of the evidence that at

least-17-

one of seven criteria is met. See id . § 40-35-115. The trial court applied the following criteria:

(2) The defendant is

an offender whose record of criminal activity is e

xtensive;

. . . . (4) The defendant

is a dangerous offender whose behavior indicates little or no regard fo r hum an life, and no hesitation about committing a crime in which the risk to human life is high ;

. . . . (6) Th e defendant is sentenced for an offen se committe d while on pr

obation[.] Tenn. Code Ann. § 40-35-115(b). Treating these in reverse order, we note first that the State conceded that criterion six applied only t o defendan t Carter a

nd was err

oneously applied b y the tr ial court to defend

ant Tucke r. We agree. Criterion four

has been specifically discussed by our supreme court. In State v. Wilkerson , 905 S.W.2d 933, 939 (T

enn. 1995), our su

preme court held : [T]he imposition of

consecutive sentences on an offender found to be a dangerous offender req uires, i n addition to the application of general princip les of sentenci ng, the finding that an extended sentence is necessary to protect

the public again

st further criminal conduct by the defendant and that the consecutive sentences must reas onab ly relate to the severity of the offenses committed. This requirement of additional findings by the tr ial court has been recently limited to criterion four—“dangerous offenders.” See State v. Lane , 3 S.W.3d 456, 461 (Tenn. 1999). The defe ndants’ attack on the victims indicated little regard for human life. The beatings were violent. A loaded gun was pointed at one of th

e victims and was used to be at both victims. The taunt of defendant Carter to “just kill” one of th

e victims speaks to

the lack of concern

these defendants have for human life. Although there were no findings as to the Wilkerson criteria, we fi nd that the recor

d supports the conclusion that the defenda nts present a dang

er to the public as

serious offende

rs who freely

use drugs and loaded guns to support their use. The punishment meted out to t he defendants

is substantial,but it is also reasonably related to the severity of a crime where

a gun is used and vic

tims are severely beaten.-18-

Defendant

Tucker argue

s that criterion tw

o is unconstitutionally vague in its use of the term “e xtensive ” as a qualifier for a record of criminal activity. Challeng es of vagueness must be examined in light of the complaining party’s conduct and the facts of the ca se at hand. See Village of Hoffman Estates v . Flipside, Hoffm an Estates, Inc. , 455 U.S. 489, 495, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982). A statute is not invalid simply bec ause it maybe arguably vague in a hypothetical

ins tan ce bu t is cle arl y app lic abl e to the com pla ini ng pa rty. See id

. Courts mu st indulge every presumption in f

avor of validity and resolve any doubt in favor of the c onstitutionality of a statute. See State v. Chavis , 617 S.W.2d 903, 905 (T enn. Crim. App. 1980). The fa ct that a statute applies in a wide variety of situations and must necessarily use words of general meaning does not render it unconstitutionally vague. See State v. Lyons , 802 S.W.2d 590, 592 (Tenn. 1990). We find that the defendants’ record of criminal activity was justifiably “extensive” and this criterion wa

s met. We, the refore, affirm the trial court’s imposition of consecutive sentences as to Tucker for the especially aggravated

robbery c

onvictions. CONCLUSION Based upon the for egoing, we re verse the convic

tions of Carter an

d Tucker for esp

ecially aggravated

robbery and

remand for new trials. In all other aspects, the judgments of the trial court are affirmed.