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 defendants assert that the trial court should have

instructed as to lesser-included offense of aggravated assault, that the proof of especially aggravated

robbery was not sufficient, 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.

GLENN, J., delivered the opinion of the court, in which TIPTON, J., and RILEY, 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, Attorney General and Reporter, Daryl J. Brand, Assistant Attorney General,

Victor S. Johnson, III, District Attorney General, and James W. Milam, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

The defendants, Jason C. Carter and Richard D. Tucker, appeal as of right from their jury

convictions in the Criminal Court of Davidson County on two counts of especially aggravated

robbery, a Class A felony, and one count of vandalism. Additionally, defendant Carter was

convicted of the unlawful possession of a weapon. Defendant Carter was sentenced to twenty-two

years imprisonment on each especially aggravated robbery conviction to run consecutively for a total

effective sentence of forty-four years. His three-year sentence for vandalism and two-year sentence

for the unlawful possession of a weapon were to be served concurrently. Defendant Tucker was

sentenced to two years for vandalismand nineteen years imprisonment on each especially aggravated

robbery conviction. The especially aggravated robbery sentences were to be served consecutively,
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while the vandalism sentence was to be concurrent, for a total effective sentence of thirty-eight years.

Defendants present the following issues:

I. Whether the court erred in failing to instruct the jury on the

lesser-included offense of aggravated assault;

II. Whether there was sufficient evidence 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 convictions

of both defendants for especially aggravated robbery and remand for new trials, affirm the

convictions of Carter for vandalism and unlawful possession of a weapon, and affirm the conviction

of Tucker for vandalism.

PROCEDURAL BACKGROUND

The Davidson County Grand Jury returned indictments charging the defendants with two

counts of especially aggravated robbery and one count of vandalism. Additionally, Carter was

indicted for unlawful possession of a deadly weapon. Defendants 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 two defendants in this case were young men in their twenties who

lived in Nashville. Trial testimony concerning the events of Friday night and early Saturday

morning, July 12-13, 1996, makes a truthful version difficult to sift from the testimony.

Nevertheless, the record does support the following sequence of events. The victims, Dean Bell and

Rodney (“Porky”) Durham, high school friends, were at Shooter’s, a sports bar in the Hermitage area

of eastern Nashville, on Friday night, July 12, 1996. When they left Shooter’s sometime after

midnight, Durham was driving his red Nissan and Bell was in the front passenger seat. The two

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 situated 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 were 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 them, maybe, just

his face looked familiar 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
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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 the

evening or early morning hours when the robbery occurred. Tucker did not testify during the trial.

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 what 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 from the

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 pull my wallet out 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 grabbed his wallet and tried to get his

money, or whatever. And he hit him 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. Durham out of the car did you

see him resist?
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A. No.

Q. Okay, what happened to him after they 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, and they struck him a few

more times, and they kind of knocked him down and he was

kind of unconscious, or he wasn’t alert.

Bell, who had stayed seated in the car, yelled at the defendants to stop hitting and kicking

Durham. 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 defendants

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 shoot him” to Tucker. Bell also testified that he was forced to pull a gold nugget ring from 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 to 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 direction 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 the door when the victims drove up and parked. Tyree said that he “could see

that the guys were covered in blood.” Tyree also testified that Durham asked him to go back to

Arby’s and look for his class ring. According to Tyree, Durham said that “he tossed it up under the

car so it wouldn’t get taken.” 

At Eric Hargrove’s apartment, the victims attempted to assess the extent of their injuries.

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

shirt was 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 through the one towel. And it was

dripping down his face.” Hargrove and Tyree convinced them to let 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 he “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.”
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Dr. Roth testified that Bell 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-shaped

laceration below 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 lacerations 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 was discharged after approximately 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, I just 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 concerning the injuries sustained by Durham:

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 there was a fairly large clot in the wound at the

time.

He also had a T-shaped laceration over the lateral aspect of his

mouth, the corner of his mouth. He had some abrasions to his

shoulders and bony prominences, for instance, the elbow, the knee,

and things like that.

. . . .

The laceration on the head, the scalp laceration, is not a fist

laceration. To sustain a burst or a blow-out type laceration of the

scalp, you have to be hit fairly hard with either an object or your head

run into an object, something fairly firm, that would cause the

implosion. A punch would never cause that type of laceration.

Dr. Roth prescribed both antibiotics and pain medication for 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, Bell and Durham were questioned by police officers and gave

consistent descriptions of the defendants and of the white car with a temporary tag in the rear

window. Bell told police that neither of their assailants wore a shirt. Police dispatchers broadcasted
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the descriptions, and a report came in shortly thereafter that two individuals and a car matching the

description had been spotted at a Kroger store on Old Hickory Boulevard in Hermitage. The call

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 came

into the store and then left. Approximately two hours later, they both returned, this time wearing

shirts. One man now had blood on his pants and a bandana wrapped around one of his hands.

Employee Jeff Fitzgerald saw a bulge under the shirt of one of the individuals, and a gun was

exposed when 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 men 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 for a 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 station. One of the occupants

had gone to the cashier’s window, while the other was in the 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 description of the individuals and of the vehicle and the

presence of the gun, the officer took into custody the occupant, defendant Carter. The other man,

whom Officer 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 positive identifications of the defendants from photographic lineups, the police

arrested both defendants pursuant to aggravated robbery warrants at the residence of defendant

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, since they were young boys playing on a football team. Carter

testified that he, Durham, and Bell, had all been drinking together at Shooter’s on the evening of July

12, 1996; that they were “regulars” there; and that they all left together to sit in Carter’s car and

smoke marijuana. Carter testified further that Durham and Bell wanted to go to another bar, but he

did not want to drive around in his car since he did not have a valid license. The plan was for

Durham and Bell to follow Carter to Arbour East Apartments where Carter said 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 following events once Tucker opened the door and

Durham saw who it was:

[H]e [Durham] went up under his shirt. It was a beige shirt. I seen

a chrome gun. Then Richard [Tucker] hit him. They start[ed]

fighting. Mr. Bell tried to jump on Richard’s back. I grabbed Mr.

Bell. Mr. Bell then swung at me. I ducked. He hit the wall. He was
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kind of in a scrunched position, points down like his hand was

hurting, and then I tackled him. We fell against the rail.

. . . .

I was on top of his back, and I was striking him in 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 door 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

out if he knew of anyone who would buy the gun. An individual 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 did not know Troy’s last name or his whereabouts. Carter was asked by defense

counsel, “Were you 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 the door. Ms. Green further testified:

Well, there was two guys standing there I didn’t know when we first

opened the 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 word, M.F. - - “that ripped me off a long time

ago.” And then Richard pushed him out the door, and they started

fighting.
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Mark Green, a four and one-half-year veteran of the United States Marine Corps, testified

that he heard the fighting and heard his wife, who had gone outside with Tucker, “yell he’s got a

gun.” Green testified that he then grabbed his one-year-old son and went into the kitchen with

Tucker’s girlfriend and her daughter for safety, leaving his wife at the front of the apartment. He

remained in the kitchen for approximately twenty to thirty minutes, until his wife and Tucker came

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 victims sustained serious bodily

injury, and therefore the evidence presented at trial was insufficient for a conviction for especially

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 favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). It is

not our prerogative to reweigh the evidence. Rather, we presume that the jury has resolved 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 injury” means bodily injury which involves:

(A) A substantial risk of death;

(B) Protracted unconsciousness;

(C) Extreme physical pain;

(D) Protracted or obvious disfigurement; or

(E) Protracted loss or substantial impairment of a

function of a bodily member, organ or mental

faculty[.]

Tenn. Code Ann. § 39-11-106(34). 

Previously, this court has considered 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,
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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 burglary to aggravated

burglary. Id. The court considered the State's argument that these injuries resulted 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

laceration across the bridge of her nose. Applying the ejusdem

generis canon of statutory construction, this court explained that the

extreme physical pain definition of serious bodily injury must be read

as applying to the same class of injuries as those causing a substantial

risk of death, protracted unconsciousness, protracted or permanent

disfigurement or the loss of impairment of the use of a bodily

member, organ or mental faculty. Sims, 909 S.W.2d at 49. Because

the proof in Sims did not establish the type of extreme physical pain

necessary to support a finding of serious bodily injury, this court

modified the defendant's conviction 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 bodily injury.” Additionally, a “broken nose and a bruised cheekbone” resulting in

swelling, loss of teeth, five weeks missed from work, and “extreme physical pain over [the] whole

face” did not support a claim of “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 beat the victims primarily by

using a gun and by kicking Durham when he was on the ground. A photograph of Bell’s injuries

taken the day after the attack was entered as evidence and available to the jury. Dr. Robert Roth,

attending physician at the emergency room at Summit Medical Center, testified as to the treatment

each victim received. Dr. Roth testified that Bell’s facial injuries were “disfiguring” and would

require ongoing medical attention from plastic surgeons. Additionally, Bell suffered from swelling

of the left testicle and soreness in his right hand, which he had used to fend off blows to his face.

Dr. Roth also testified that the head wound Durham suffered was a significantly large, deep, blowout type laceration of the skull, indicating significant force. He described the lacerations of Durham

as being more “potentially dangerous” than those of Bell. Dr. Roth said that he prescribed pain

medication for Durham because of the pain 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
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jury’s findings that both victims suffered serious bodily injury.

II. Lesser-Included Instructions

Based upon the evidence presented by the prosecution, the defendants have claimed that the

trial court should have instructed the jury as to aggravated assault.

First, we will determine whether aggravated assault is a lesser-included offense of especially

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 the statutory

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 same

person, property or public interest; or

(c) it consists of

(1) facilitation of the offense charged or of an offense

that otherwise meets the definition of lesserincluded offense in part (a) or (b); or

(2) an attempt to commit the offense charged or an

offense that otherwise meets the definition of

lesser-included offense in part (a) or (b); or

(3) solicitation to commit the offense charged or an

offense that otherwise meets the definition of
1

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 elements of the

offense charged[.]” Burns, 6 S.W.3d at 466. Howard, on the other hand, provides that an offense

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 consequence to the facts of the present case, there

may be cases in which the difference is material.

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lesser-included offense in part (a) or (b).

Section (a) of theBurns 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 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. 

Applying the approach established in Burns, we conclude that aggravated assault is a lesserincluded 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, include the

elements of aggravated assault.

At the conclusion of the trial in this case, the trial court instructed the jury only as to

especially aggravated robbery, vandalism, and illegal possession of a firearm. At trial, defendant

Carter had requested instruction on 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-included 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 accept as to the lesser-included offense. In

making this determination, the trial court must view the evidence

liberally in the light most favorable to the existence of the lesserincluded offense without making any judgments on the credibility of

such evidence. Second, the trial court must determine if the evidence,

viewed in this light, is legally sufficient to support a conviction for

the lesser-included offense.

Burns, 6 S.W.3d at 469.

Aggravated assault is defined at Tennessee Code Annotated § 39-13-102(a) (1997). That

statute provides, in pertinent part, that a person commits aggravated assault who:
2Although defendant Carter requested that the trial court instruct as to aggravated assault and

raised the court’s refusal to do so both in the motion for new trial and as an issue on appeal, Tucker

did not so argue until his reply brief was filed with this court. He had neither requested this

instruction in the trial nor raised as an issue the trial court’s failure to instruct as to the lesserincluded offense as an issue in the motion for new trial. Accordingly, as to Tucker, this issue was

waived and cannot now be raised on appeal. 

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(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 causes bodily injury

to another;

(2) Intentionally or knowingly causes another to reasonably

fear imminent bodily injury; or

(3) Intentionally or knowingly causes physical contact with

another and a reasonable 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 defendant Carter testified during the trial, and he denied that he had robbed

the victims or even been at the Arby’s parking lot that evening, where the victims testified that the

robbery occurred. Thus, given this testimony, the only two possibilities are that the incident

occurred as the victims testified, or it did not occur at all. Viewing this testimony in the “light most

favorable to the existence of the lesser-included offense without making any judgments 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 court not to instruct the jury as to the lesser-included offense of aggravated 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
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and remand for a new trial. Tenn. R. Crim. P. 52(b).

III. Appropriateness of Sentences

Carter and Tucker argue that their effective sentences are excessive both as 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 presumption that 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 presumption 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 trial court’s action is conditioned upon the

affirmative showing in the record that the trial court considered the sentencing principles and all

relevant facts and circumstances”). The burden 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 Court has studied these matters carefully. And the

Court finds in both cases I am going to amend the enhancement

factors: I’ll apply number one; I will apply number eight; I’ll apply

number nine; I’ll apply number ten; and, I’ll apply number thirteen,

in both cases. I find no mitigating factors.

Under Section 39-15-402 [sic] on multiple convictions: I find

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

that number six applies, with regard to 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 Court. The Court is

going to take that into consideration in the sentencing.

With regard to the sentencing in this case it is the judgment of

the Court that, with regard to the Defendant Richard Tucker, Count

One, he be sentenced to the Department of Corrections for a period

of nineteen years as 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 offender. It will run at eighty-five percent. Count
3

The statements were not accurate regarding the “eighty-five percent.” Tennessee Code

Annotated § 40-35-501(i)(1)-(2) provides that a person committing especially aggravated robbery

shall serve one hundred percent of the sentence imposed by the court. Credit authorized by § 41-21-

236, or other provision of 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 defendants on Count One and Count Two is one hundred

percent.

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Three, he [will] be sentenced to the Department of Corrections for a

period of two years as a range one standard offender at thirty percent.

Count One and Count Two will run consecutive, one with the other.

Count Three will run concurrent.

With regard to the Defendant Jason Carter it’s the judgment of

the Court, with regard to Count One, he be sentenced to the

Department of Corrections for a period of twenty-two years. With

regard to Count Two it’s the judgment of the Court he be sentenced

to the Department of Corrections for a period of twenty-two years.

With regard to Count Three it’s the judgment of the Court he be

sentenced to the Department of Corrections for a period of three

years. With regard to Count Four it’s the judgment of the Court he

be sentenced to the Department of Corrections for a period of two

years. Count One and Count Two will run consecutive, one with the

other. Count Three and Count Four will run concurrent. That’s an

effective forty-four year sentence at eighty-five percent.

With regard to Mr. Tucker, General, it is an effective thirty-eight

year sentence at eighty-five percent.

That’s the judgment of the Court.3

Both defendants were sentenced as standard offenders 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 the range if there are no

enhancement or mitigating factors.” Id. § 40-35-210(c). If the trial court applies inappropriate

factors, the sentence’s presumption of correctness fails. See State v. Shelton, 854 S.W.2d 116, 123

(Tenn. Crim. App. 1992) (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 consecutive sentences de novo on the record with no presumption of

correctness.

A. Length of Sentences
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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 offense charged in the indictment,

apply to increase the sentence within the applicable range for the offense. The trial court applied

each of the following enhancement factors:

(1) The defendant has a previous history of criminal

convictions or criminal behavior in addition to those

necessary to establish the appropriate range; 

. . . .

(8) The defendant has a previous history of unwillingness

to comply with the conditions of a sentence involving

release in the community; 

(9) The defendant possessed or employed a firearm,

explosive device or other deadly weapon during the

commission of the offense; 

(10) The defendant had no hesitation about committing a

crime when the risk to human life was high; 

. . . .

(13) The felony was committed while on any of the

following forms of release status if such release is from

a prior felony conviction:

(A) Bail, if the defendant is ultimately convicted of

such prior felony:

(B) Parole;

(C) Probation;

(D) Work release; or

(E) Any other type of release into the community

under the direct or indirect supervision of the

department of correction or local

governmental authority[.]

Tenn. Code Ann. § 40-35-114.
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As to factor (1), defendant Carter’s presentence report revealed at least eight prior

convictions 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

years in the workhouse. As to factor (1), Tucker’s presentence report revealed prior convictions on

three counts of burglary, four counts of theft, including two counts of theft over $10,000, and

numerous driving offenses. Thus, the record reflects the proper application of enhancement factor

(1) as both defendants.

Factor (8) looks to the previous history of the defendant in the criminal justice system to

determine how willing the defendant has been to comply with conditions of release into the

community after conviction for an offense. All four of defendant Tucker’s theft convictions in 1995

were served in the community corrections program. He was in that program at the time he

committed a series of burglaries at a mini-storage facility. Defendant Carter had prior revocations

of probation. We conclude the record reflects the proper application of enhancement factor (8) as

to both defendants.

Use of a deadly weapon, the condition in factor (9), is an element of the offense. Factor (10)

is also an element of the offense since “there is necessarily a high risk to human life and the great

potential for bodily injury whenever a deadly weapon is used.” State v. Nix, 922 S.W.2d 894, 903

(Tenn. Crim. App. 1995); see also State v. Hicks, 868 S.W.2d 729, 732 (Tenn. Crim. App. 1993)

(finding that factor (10), absent any proof of risk to life other than the victim’s, was an essential

element of aggravated robbery). Therefore, we conclude that neither factor (9) nor (10) was properly

applied to the defendants.

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 Tucker was on community

corrections at the time of his conviction, which would be applicable under this factor as “[a]ny other

type of release into the community under the direct or indirect supervision of the department of

correction or 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 that the remaining factors justify the sentences imposed by the trial court. We

note that defendant Tucker’s sentence of nineteen years on each especially aggravated robbery count

was less than the presumptive sentence of twenty years for a Class A felony and attribute this to the

fact that the trial judge decided to consider the fact that Tucker told a truthful account of the events

at the sentencing hearing. We, therefore, affirm the imposition of the sentences.

B. Consecutive Nature of Sentences

Finally, the defendants argue that their sentences for especially aggravated robbery should

not be served consecutively. According to the statute, the ordering of consecutive sentences is purely

discretionary; nevertheless, the trial court must find by a preponderance of the evidence that at least
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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 extensive; 

 . . . .

(4) The defendant is a dangerous offender whose behavior

indicates little or no regard for human life, and no

hesitation about committing a crime in which the risk to

human life is high; 

 . . . .

(6) The defendant is sentenced for an offense committed

while on probation[.] 

Tenn. Code Ann. § 40-35-115(b).

Treating these in reverse order, we note first that the State conceded that criterion six applied

only to defendant Carter and was erroneously applied by the trial court to defendant Tucker. We

agree. 

 Criterion four has been specifically discussed by our supreme court. In State v. Wilkerson,

905 S.W.2d 933, 939 (Tenn. 1995), our supreme court held: 

[T]he imposition of consecutive sentences on an offender found to be

a dangerous offender requires, in addition to the application of

general principles ofsentencing, the finding that an extended sentence

is necessary to protect the public against further criminal conduct by

the defendant and that the consecutive sentences must reasonably

relate to the severity of the offenses committed. 

This requirement of additional findings by the trial court has been recently limited to criterion

four—“dangerous offenders.” See State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999). The defendants’

attack on the victims indicated little regard for human life. The beatings were violent. A loaded gun

was pointed at one of the victims and was used to beat both victims. The taunt of defendant Carter

to “just kill” one of the victims speaks to the lack of concern these defendants have for human life.

Although there were no findings as to the Wilkerson criteria, we find that the record supports the

conclusion that the defendants present a danger to the public as serious offenders who freely use

drugs and loaded guns to support their use. The punishment meted out to the defendants is

substantial, but it is also reasonably related to the severity of a crime where a gun is used and victims

are severely beaten.
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Defendant Tucker argues that criterion two is unconstitutionally vague in its use of the term

“extensive” as a qualifier for a record of criminal activity. Challenges of vagueness must be

examined in light of the complaining party’s conduct and the facts of the case at hand. See Village

of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S.Ct. 1186, 1191, 71

L.Ed.2d 362 (1982). A statute is not invalid simply because it may be arguably vague in a

hypothetical instance but is clearly applicable to the complaining party. See id. Courts must indulge

every presumption in favor of validity and resolve any doubt in favor of the constitutionality of a

statute. See State v. Chavis, 617 S.W.2d 903, 905 (Tenn. Crim. App. 1980). The fact 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 was met.

We, therefore, affirm the trial court’s imposition of consecutive sentences as to Tucker for the

especially aggravated robbery convictions.

CONCLUSION

Based upon the foregoing, we reverse the convictions of Carter and Tucker for especially

aggravated robbery and remand for new trials. In all other aspects, the judgments of the trial court

are affirmed.