### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs J une 7, 2005 STATE OF TENNESSEE v. MIKE EDWARDS Direct Appeal from the Circuit Court for Henry County

No. 13619 Julian P. Guinn, Judge

No. W2004-02051-CCA-R3-CD - Filed Septem ber 22, 2005
Following a jury trial, De fendant was convicted of aggra vated robbery , a Class B felony . The trial court sentenc ed Defe

ndant as a

Range I I, mul tiple off ender to sevente en y

ears in the Tenne sse e Department

of Correct ion. Def endant do es not cha

llenge the leng th of his se

ntence. In thi s appeal , Defendant

argues (1) that the evidence was insufficient to support his conviction of agg ravated ro bb er y; (2) that the indictment fails to state an offense; and (3) that the State failed to prove beyond a reasona ble doubt that the charged offense oc curred prior to the return of the indictment. After a thoroug h review of the re cord, we

affirm t he judg ment of the

trial cou rt. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
T HOMAS T. W OODA LL , J., delivered the opinion of the court, in which J OSEPH M. T IPTON and D AV ID G. H AYES , JJ., joined. Anthony L . Clark, Paris, Tennessee, for the appellant, Mike Edwar ds. Paul G. Summers, Attorney Gene ral and Reporter; Rachel E. Willis, Assistant Attorney General; G. Robert Radford, District Attorney Ge nera l; and Steven L. Garrett, Assistant District Attorney General, for the appellee, the State of Te nnessee. OPINION I. Backgro und Ch er yl Ann Webber testified that Defendant stopped by her house in May 2003, a f ter a tornado struck the community and dama ged the roof of her house. Defendant offe red to repair the Webber’s roof, but

Mrs. Webbe

r’s husba nd told De fendant

that he ha

d alrea dy h ired some one else to do the repairs. On August 6, 2003, Defendant a nd another man knocked on her door between 8:00 p.m. and 9:00 p .m. Ms. Webb er said she did not know Defendant’s companion, and she described him as “quite a bit smaller, thinner, [and] young er” than Defendan t. The other man was later-2-

identified as Christopher Wilson. Defendant asked to speak to Ms. Webber’s husband. Ms. Webber told Defendant that the roof had been repa ired, and she shut and locked the door. Henry Webber said that he did not know that Defendan t and Mr. W ilson had visited the house earlier in the evening beca use he was working on his computer. Around 11:00 p.m., a man, later identified as Mr. Wilson, knocked on the door and told Mr. Webber he needed to use the telephone because

his car had

broken down. Mr. Webber turned to reach for the portable telephone, and Mr. Wilson followed him into the house. Mr. Wilson pushed afew numbers on the telephone, and Mr. Webbe

r told him that he had

to turn the

telephone on before it woul d wor k. Mr. Wilson raised his right hand at that point, and Mr. Webber saw that he wa s armed with a knife. Ms. Webber, who had already gone to bed, woke up when she heard the second knock at the door. Ms. Webber said she was very frightened when she

saw the man’s knife, and she thought the intruder was goi ng to kill her and her husba

nd. Both o f the vic tims testif ied that Mr. Wilso n was nervous, and told them that he “had never done any thing like this.” Mr. Wilson told the victims that if he did not get some m oney, “they ’l l kill me whe n I g o out.” Mr . Webber, a retire d Methodis t minister, engaged Mr. Wilson in conversation. He asked Mr. Wilson what he would do if he harmed Mr. Webb er. Mr. Wils on res ponde d that he “wou ld pro bably go home andcommit suicide.” As they talked, M

r. Wilson ke

pt asking for for ty d ollars. Mr. Wilson followed Mr. Webber into the den, and Mr. Webber removed twelve dollars from his billfold. Mr. Webber asked Ms. Webber if she had any money, and all three

went into the kitchen. Ms. Webber gave Mr. Wilson twenty dollars from her purse and told Mr. Wilson that she had some dollar bills in her bedroom that she had set aside for her Sunday school off ering. The group went into Ms. Webber’s be droom, and she handed Mr. Wilson some one dollar bills. Mr. Wilson said that he had enough money

. He told the victims that “they told me to cut y our telephone line outside.” Instead, Mr. Wilson cut the telephone line between the receiver and phone set of one of the victims’ telephones. Mr. Wilson left through the front door. Mr. Webber followed him on to the porch, but Mr. Wilson told him to please go back inside the house. Mr. Wilson then ra n ar ou nd th e h ou se to th e a ll ey. Mr. Webber called 911 from another telephone and de scri bed Mr . Wilson to the police dispatcher. Mr. Webber said that he was not scared of Mr. Wilson, and Mr. Wilson did not make any menacing gestures with his knife. Mr. Webber said that he knew Defendant because Defendant usedto come b y his house periodically asking for money . He did not know Mr. Wilson. Mr

. Webber sa

id that Mr. Wilson alwa

ys s aid “the

y” were g oing to g et him. Mr. Wilson testified that he was Defendant’s cousin. He and De fendant spent the day of the offense together, drinking

and using

drugs. In the

early evening , they

ran out of

drugs. Defendant said he had to use the telephone, so he a nd Defe ndant drove to the We

bbers’ house in Defendant’s red Chevrolet Blazer. Afterwards, they returned to Defendant’s trailer. Def endant got a knife and handed it to Mr. Wilson. Defendant told Mr. Wilson that he wanted Mr. Wilson to go back to the Webber’s house and get some money

.-3-

Defendant

drove his Blazer to the Webber’s and parked in the alley behind the house. Mr. Wilson said

that Defendant told him “to cut the phone lines, go in, demand money , and act serious.” Mr. Wilson said t

hat Defe ndant wa rned him, “[a]nd if no t, you know, y ou better come out with some mo ne y, you know, or y

ou’ll wish you

didn’t.” Mr. Wilson said, it was “either to do something that I’ll regre t for the r est of my life or possibly ge

t beat down right

good.” Mr. Wilson was too scared to tell Defendant he did not know how to cut the telephone line. Mr. Wilson said that he knocked on t he door and told Mr. Webber he needed to use the telephone. After he

came into

the house , Mr. Wilson t

old Mr . W eb be r h e w as so rr y, but he had to take Mr. Webber’s money, a nd that he had no choice. Mr. Wilson asked Mr. Webber not to shoot him. After he got some money from the victims, Mr. Wilson ran back to D efenda nt’s vehi cle in the alley . He thre

w the knif

e away inthe vict im s’ ba ck yar d a nd ga ve De fe nd an t t he mo ne y. Defendant

sped out of the alleyway, and drove to the apartments where Mr. Wilson’s mother lived. Mr. Wilson said he and

Defendant

were arrested there a shor t time later. Mr. Wilson said Defendant was talking to his wife on the telephone when the police ar rived and told Mr. Wilson to “run, run, run.” Mr. Wilson said t hat he an d Defen dant spen t the nig ht in jail . While they were be ing transported

to the courthouse the next morning, Defendant “was steady looking at me like this right here, if you say

one word, you know y

ou’re through.” Mr. Wilson sa id he initia

lly told the judge that Defendant

did not have anything

to do with the robbery be cause he was scared. Mr. Wilson sa id, “you know, I ’d as soon do the time than get killed.” Chad Wesley Howard, the

dispatcher for the Paris police department, receiv ed a 911 c all fromMr. Webbe

r at 11:42p.m. on Aug

ust 6, 2003. Mr. Webber sa

id that a ma

n wearin g blue je ans, a baseball cap and a white t-shirt had robbed him in his home at knife point. Mr. Webber said the knife was a hun

ting-ty pe knife with a five inch

blade. Mr. Webber told the dispatcher that the man ran towards t he back of the hou se and tol d Mr. Webbe r “that there wa s [sic] some g uys out there in the car that were going

to kill him if he didn’t do it.” Mr. Webber said the man was “very drunk” and took about forty dollars fr

om the Webbers. Police officers arrived at the Webber re sidence on Dunlap Street before he and Mr. Webber finished their c onversation. A woman called the dispatcher at 11: 55 p.m. and again at 11:58 p.m. about “the Dunlap [Street] thing.” M r. Howard said that he had gone to school with Jennifer Edwa rds, Defendant’s wife, and recognized her voice. Off icer Angie Myrick answe

red Ms. Edwards’ first call, and Officer Howard answer ed the se cond ca

ll. Ms. Edw ards told

Officer My

rick that she was listening to her scanner, and she

told her “the subject is in a red Tahoe Blazer, there’s no tags in it.” She said that she had made the men leave her house and they were

driving “toward

Dunlap f rom Old Mckenzie [Highway].” [OFFI CER MYRI CK]: Okay. You don’t know the ir name[s] though?-4-

[MS. EDWARDS]: It was [Defendant], he ’s dri ving i t, but I don’t want that told beca use I’m his wife, and

I’ve got kids her

e, and I ’m sick of

this. [OFFI CER MYRI CK]: Okay. I ’ll let them know. [MS. EDWARDS]: He ’s [refe rring t o Mr. W ilso n] go t on awhite teeshirt , the b lue ha t and e verythin g. A fewminutes later, Ms. Edwards called again and told Off icer Howard that she thought the second man’s na me was Christopher, and that he was Lar ry Bowden’s step-son. Officer Howard asked Ms. Edwar

ds aga inwho was d

riving t he vehic le, and Ms . Edward s said that Def endant w as. Officer Patrick Joseph Burns was taking Mr. Webber’s statement when he r eceived a call that two possible s

uspectshad been apprehended at Thomas Cove about a mile or one-half mile from Mr. Webber’s house. Officer Burns drove Mr. Webber to the apartment complex , and Mr. Webber identifie d Mr. Wilson a s his assa ilant. Officer Burns said that Defendant and Mr. Wilson were rea d their Miranda rights at the apartme nt. Defendant said that

he did not know what was going on but identified the red B lazer as his vehicle. Mr. Wilson said that he robbed the Webbers because he wa nted Defendant to beat

up his step-fat

her, Larry

Bowden, and Mr. Wilson was too small to do it. Mr. Wilson said that at Defendant’s house he took off the clothes he was wearing when he robbed the Webbers, and Defendant

told him tha

t he was g oing toburn the clothes. The sequence of events occurring after Mr. Wilson ente

red the We

bber’s home wh ich was relay ed to Officer Burns by

Mr. Wilson was consistent in most part with Mr. Webber’s description of the offense. Officer Burns said that Mr. Wilson threw about twenty dollars in different denom ina tions down on the ground before he was a rrested. Defendant also had twenty dollars in his pocke t

. Officer Burns sa id that Ms. Ed

wards fo und a whit

e tee-shirt and b lue base

ball cap behind the shed on their property a

nd turned the clothes over to the police on August 11, 2003. Oncross-examination, Officer Burns said that the knife was never found, and no witnesses other than Mr. Wilson saw the red Blazer in the vicinity of the Webber’s home on the night of the offense. The defense

calle d Mary De lores Edwards, Defendant’s mother, to testify . Ms. Delores Edwards said that

Defendant came by

her house “kind

of late in the even ing” on August 6 , 2003, to pick up a check in the amount of twenty dollars. She said Defendant was alone. Ms

. Jennifer Edwards testified that Defendant was at home working in the yard when Mr

. Wilson came

over on A

ugust 6, 2003, bet

ween 6:3 0 p.m. and

7:00 p.m. She said Mr. Wilson had a bottle of vodka and was already intoxicated. Ms. JenniferEdwards said that Defendant and Mr.-5-

Wilson left in Defendant’s truck to go see Mr. W ebber a bout a roo fing job

and to buy

cigar ettes. They re turned a short while later, and Mr. Wilson left. Defendant stay ed at home. Ms. Jennifer Edwards said that at about 10:30 or 11:00 p.m she heard the report of a robbery on Dunlap Street

on her police scanner. The suspect was de scribed as wearing a blue ca p, a white t-shirt, and blue j eans. As she was li stening

to the re port, Ms. Edwards said that Mr. Wilson “barged into” the house

wearing the clothes described by the dispatcher. Ms. Edwards said, “y ou’re the one that’s on the sca

nner.” M s. Edwar

ds said she

was frig htened a nd told Defend ant to get Mr. Wilson outof the house. Defendant left the house with Mr. Wilson, and she called the police. She said she called the police because Mr. Wilson nee ded to be appre hended. Ms. Edwar

ds denied that she to ld Officer Buford Tay

lor that Mr. Wilson and Defendant had robbed Mr. Webber when she gave Of fi ce r T ayl or th e c lo th es sh e f ou nd be hi nd th e s he d o n h er pr op er ty. As rebutta

l testimony

, the State

called O fficer

Tay lor. He te stified that he we nt to Ms. Jennifer Edwards’ house on August 11, 2003, in response to her call that sh e had found a blue basebal l cap and

a white t-shirt. Officer Tay

lor said that Ms. Edwards’ told him that those were the clothes M r. Wilson wa s wearin

g when he and De fendant robbed the Webber s. Ms. Brenda

Faye Lee, also a rebuttal witness, testified tha t she was Mr. Wilson’s aunt and Defendant’s cousin. Ms . Lee said that D efenda

nt and Mr. Wilson came

by her apa

rtment at Thomas Cove around 11:30 p.m. on August 6, 2003. The men sai d their car was broken down and they needed to use the telephone. Ms. Lee sai d that she asked what was wrong bec ause Mr. Wilson “looked all blue around

the mouth” and scared. Ms. Le e said that Defendant kept telling Mr. Wilson “to shut up and stop his crying .” Defendant talked to his wife on the telephone, and Ms. Lee heard him say that the la

w was on the way . Both

men ran out the door, but the police were already there. Ms. Lee said Defenda

nt told Mr. Wilson that “he better keep his mouth shut.” As a surrebuttal witness, Ms. Delores Edwards testified that she did n ot hear M s . Jennifer Edwards tell Offi cer Tay

lor that D efenda

nt and Mr. Wilson had r

obbed the Webbers. II. Sufficiency of the Evidence Defendantargues that the convicting evidenc e was circumstantial only and insufficient

t o show th at Defendant participated in Mr. Wilson’s robbery . Specifically, De fendant contends that there was no evidence that he was present at the sc ene of the crime. Co nsistently through out his statement and testim

ony at trial, Mr. Wilson sa

id “they ” would ki ll him if he

did not rob

the victim s, not“he” wo

uld kill him. Moreove

r, Defe ndant ar gues, that althou

gh the Sta te was able to prove that Mr. Wilson commi

t t ed agg ravate d robber

y, t he State d id not prov e that he

intentiona

lly or knowingly robbed Mr. and Mrs. Webber with a deadly weapon. When a defendant challenges the suf ficiency of

the convicting evidence, we must review the evidence in a ligh

t most favorable to the prosecution in determining whether a rational trier of fact could have found all the essential elements of the crime bey ond a reasonabl e do ubt. Jackson v.-6-

Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2 789, 61 L. Ed . 2d 560 (1 979). Onc e a jury finds a defendant gu il ty, his or her

presumpt ion of inno cence i s remove d and rep laced with a presumption of guilt. State v. Black

, 815 S.W.2d 166, 175 (Tenn. 1991 ). The defendant has the burden of overcomingthis presu

mption, an

d the State

is enti tle d to the strongest legitimate view of the evidence along with all reasonable inf er ences which may

be drawn from that evidence. Id.; Stat e v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). The jury is presumed to ha ve resolve d all conf

licts and drawn any

reasonable inferences in favor of the State. State

v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984). Questions concerning the credibility of witnesses, the weight and val ue to be given the evidence, and all factual issues raised by the evidence are resolved by the trier of

fact and not thi s court. State v. Bland , 958 S.W.2d 651, 6 59 (Tenn . 1997). T hese rul es are a

pplicabl e to findings of guilt predicated upon direct evidence, circumst antial ev idence, or a comb ination of both direct and circumstantial evidence. State v. M atthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Defendant

was convicted of aggr

avated robbery

which is defined as a robbery “accomplished with a deadly weapon.” Tenn. Code Ann. § 39-13-402(a)(1) . The of fe nse of robbery

“is the intentional or knowing theft of property from the person

of another

by violence or putting

the person in fear.” Id . § 39-13-401(a). “A defenda

nt is crimin

all y r esponsibl e as a pa

rty to an off ense and may be char ged wit h commission of the offense where the offe nse is committed

by another p erson for whom the defendant is criminally responsible.” State v. Howard

, 30 S.W.3d 271, 276 (Tenn. 2000) (citing Tenn. Code A nn. § 39 -11-401). “A person is criminally responsible for an offense committed by the conduct of another if . . . [a]cting w ith intent t

o promote

or assist the commission of the offense, or to benefit in the proceeds or results of the offense, th e person solicits, d

irects, a ids, or at tempts to aid another person to commit the offense.” Tenn. Code Ann. § 39-11- 402(2). “Presence or companionship with the perpetrator of the felony before and after the commission of the of

fense a re circ umstance s from whi ch one’s p artic ipation in the crime may be inferred.” State v. Jones , 15 S.W.3d 880, 890 (Tenn. Crim. App. 1999). It is not necessary for the criminal ly

respo nsible def

endant to take a phy sical part in the crime; “[e]ncouragement of the principal is sufficient.” Id. (citi ng State v. McBee , 644 S.W.2d 425 (Tenn. Crim. App. 1982)). Mr. Wilson’s testimony provided direct evidence of Defendant’s as sista

nce and participation in the offense and

that Def endant pr ofited fr om the pro ceeds. I

t is well settled that “‘a conviction may not be based solely upon

the uncorroborated testimony of an accomplice.’” State v. Boxley , 76 S.W.3d 381, 3 86 (Te nn. C rim. A pp. 20 01) (q uoti ng State v. Shaw , 37 S.W.3d 900, 903 ( Te nn. 2001 )). The proof necessary to corroborate the accomplice’s testimony must include “some fac t testified to, entirely independe

nt of the accomplice’s testimony , which, taken by itself, le ads to the inference, not only

that a crime has been committed, but also that the defendant is implicated in it; and this indep endent c or roborative testimony must also include some fa ct establishing the defendant’s identity.” Shaw , 37 S.W. 3d at 9 03 (qu otin g State v. Bigbee , 885 S.W.2d 797, 803 (Tenn. 1994)).-7-

Viewingthe evidence in a light most favorable to the State , the testi mony of the victims corroborated

Mr. Wilson’s testimony that he entered the Webber residence under the

pretext of using the telephone, that he pointed a knife at the victims and demanded money , and that he repeat

edly said that he was being forced to commit the offense by someone else w

ho was waiting for him outside. Ms. Webber said that she was frightened of Mr. Wilson because he was carry

ing a knife. Alth ough Mr. Webber said that he was not scared of Mr. Wilson, the “pointing of a deadly weapon at the victim constitutes ‘violence’ as used in the offense of robbery pursuant to Tenn. Code Ann. § 39-13- 401.” State v. Allen , 69 S.W.3d 181, 186 (Tenn. 2002). Jennifer Edwards testified that Mr. Wilson came over to he

r homedurin g the ear ly evenin g, and he and Defendant went to t he Webber re sidence , return ing tog ether a

short time

later. Ms

. Edwards told police officers that Mr. Wilson was weari ng th e clothing described by Mr. Webber, and that he and Defendant were riding in Defendant’s red Blazer. Ms. L ee testified that Defendant and Mr. Wilson arrived at her home together a round 11:30 p.m. on the night of the offense. Driving the perpetrator of an

offense to and from the crime scene is suffic ient to support a finding that the driver aided and participated in the offense. See, e.g., State v. Andrew Thomas and Anthony Bond , No. W2001-02701-CCA-R3-CD, 2004 WL 370297, at *53 (Tenn. Crim. App., at Jackson, Feb. 27, 2004), perm. to appeal denied (Tenn. A ug. 30, 2 004); State v. H

arry L. Robinson , No. 02C01-9807- CR-00206, 1999 WL 460087, at *3 (Tenn. Crim. App., at Jackson, July 8, 1999), perm. to appeal denied (Tenn. Nov. 22, 1999). Defendant talked with his wife, and then warne d Mr. Wilson that the police were on their way

and for Mr. Wilson not to say any thing. Defendant had

twenty dollars in his pocket when he was apprehended. Based on our re view of the record, the evidence wa s sufficient to support Defendant’s co nv ic ti on of

ag gr av at ed ro bb er y ba se d o n a th eo ry o f c ri mi na l r es po ns ib il it y. III. Sufficienc

y of the Indictment Defendant argues that

the indic tment cha

rging him with the offense of agg

ravated robbery was def ective b ecause

it failed to state an offense, it contained languag e contradictory to the cited statute, and it combined statutory eleme nts of more than one offense. OnMarch 1, 2004, the Henry County Grand Jury

returned an indictment

charging Defe

ndant with ag grava

ted robbe ry as follow s: Acting with the intent to promote, assist or benefit in the proceeds or the resultsof the of

fense of AGGRAVATED ROBB ERY, MI KE EDWARDS , heretofore, to wit: On or about the 6 TH DA Y OF AUG UST, 2003, in the Coun

ty aforesaid, then and t

here did knowingly or

intentionally solicit, direct, aid or attempt to aid CHRISTOPHER WIL SON to commit theftof property, be ing MONEY, from HENRY AND ANN WEBER [sic], by the u se of a dea dly weapon, which wa s a KNIFE, thereby using

violence against, or pla cing fear in HENRY AND ANN WEBER [sic], thereby committing the offense of AGGRAVATED ROBBERY, in-8-

violation of T.C.A. 39-13-402(a)(1) aga inst the peace a

nd dig nity of the State of Tennessee. Defe ndant

argues that the indictment is defective beca use it contains language fro m th e statutory definition of

criminal responsi bility of a fel ony

but only alleges the offense of ag

gravated ro bb er y. Defendant’s argument is premised on his contentionthat criminal responsibility of a fe lony and ag grava

ted robbe ry are two s eparat

e offen ses. Under both the United States and the Tennessee Constitutions, a charging instrument, such as an indictment, must inform the accused of “the na ture and cause o f the accusation.” See U.S. Const. ame nd. VI; T enn . C ons t. art . I, § 9. In addition to theseconstitutional guarantees, Tennessee Code Anno tated se ction 40- 13-202 re quires th at an indi ctment
state the fac ts constitu

ting the offense in ordinary and c oncise language, without prolixity or repetition, in such a manner a s to enable a person of common understandingto know what is intended, and with that degree of certain ty w hich will enable the court on conviction, to pronounce the proper judg ment . . . . Criminal responsibility is not a separate of fense but merely

a theory by

which the State may prove the defendant’s guilt of the alleged offense based upon the conduct of another person. State v. Lemacks , 996 S.W.2d 166, 173 (Tenn. 1999). An indictment need not set forth the theories availab le to support a conviction of the charged offe nse. Id

. at 172. Accordingly , as a panel o f this Courthas prev

iously conclude d, “the la

nguag e in [Defe

ndant’s] indictment suggesting the State’s reliance upon a theory

of criminal responsibility is mere surplusag e.” State v. B arry W aters Roge

rs , No. M1999-01389-CCA-R3-CD, 2000 WL 1612304, at *2 (Tenn. Crim. App., at Nashville, Oct. 30, 2000), no perm. to appeal filed . An indictment is notfatal becaus e of th e incl usio n of su rplus age if, after eliminating the surplusage, the of fense is still suf

f iciently charged. State v. Cu lp , 891 S.W.2d 232, 236 ( Tenn. Cr im. App. 19 94). Defendant’s indictment sufficiently charges the statutory elements of aggravated r

obbery eve

n after removal of the surplusage, a nd includes an a

ppro priate citationto th e statute. See State v. Griffis , 964 S.W.2d 5 77, 591 (T enn. Crim. App. 1997 ) (“As a gen eral rule, it is sufficient to state the offense in the words of the statute, or words whic h are th e equivale nt to the words conta

ined in the

statute.” ) We conc lude that the indic tment is suf

ficient. Defendant

also argues on appeal that he was not g ranted a preliminary he aring on

the ch arge of ag gr av at ed ro bb er y. He concedes that he ha d a preli minary hearing , but arg

ues that it was only onthe charge of criminal responsibility for facilitation of a felony , a less serious charge. Defendant conte nds, t herefo re, th at the trial court erred i n not granti ng him a new pr elim inary hear ing. First, we note

that Def endant do es not cite

any authority

or make any

references to the recor

d insupport of his ar gument. “[I]ssu

es which are not s upported by a rgumen t, citation to author

ities, or appropriate reference s to the record will be treated as waived in this court.” Tenn. Ct. Crim. App. R. 10(b); see alsoTenn. R. App. P. 27 (a)(7) . Nonethe less, Def endant w ould

not be entitled to relief were we to conside

r his issue on the mer

its.-9-

The right to a preliminary hearing is dealt with in Rules 5 and 5.1 of the Tennessee Rules of Criminal Procedure. These rules contemplate the right of a preliminary hearing when

a defendant is arrested before a g

rand jury c an make a determination of probable cause

. See Tenn. R. Cr im. P. 5(c)(2). The State cannot avoid the requirement of a preliminary hearing by acting in bad faith, such as submitting the case to a grand jury while the preliminary

hearing is pending, State v. Brooks , 880 S.W.2d 390, 394 (Tenn. Crim. App. 1994), or when the State deliberately does not oppose a motion to suppress , lets the c ase be dismissed in general sessions court, and then takes the ca se to the grand jury

. State v. Golden , 941 S.W.2d 9 05, 907-0 8 (Tenn. Crim. App. 1996). There is no thing to indicat e in the case sub judice that the State acted in bad faith in “upgrading ” the offense from fa ci li ta ti on of

ag gr av at ed ro bb er y to ag gr av at ed ro bb er y. IV. Failure to P rove the Offense Occ urred pri or to the Return of the Indictm ent Defendant

argue s for th e fir st time on appeal that the State failed to prove bey ond a reasona ble doubt that the charged offense of aggravated robbe

ry occur red prior to the return of the indictment. Defendant contends that this issue r

ises to the level of plain er ror unde r Rule 52(b) of the Tennessee Rules of Criminal Procedure. Relying on State v. Brown , 53 S.W.3d 264 (Tenn. Cr im. App. 2000 ), Defe

ndant asks this Court

to reverse his con

viction a nd reman d for a ne w trial. Rule 52(b) provides that “[a]n error which has affected the substantial rights of an accused may be noticed at any

time even

though not raised in the motion for new trial or assigned a s error onappeal, in the discretion of the appellate court wher e necessary

to do substantial justice.” “Plain error revi ew extends only to a clear , conspicuous, or obvious error which affects the substantial rightsof the defendant.” State v. Gomez , 163 S.W.3d 632, 645 (Tenn. 2005). A “substa ntial rig ht” is a right of fundamental proportions in the indictment process, a rig htto the proof of every

element of the offense, and is constitutional in nature.” State v. Adkisson , 899 S.W.2d 62 6, 639 (Te nn. Crim. App. 1994). Five factors must be considered in deter mining whether an error is plain: a) the r ecord mu st clear

ly e stablish w

hat occu rred in the trial c ourt; b) a clear and unequivocal rule of la w must have been breached; c) a substantial right of the accused must have be en adversely affected; d) the accused [must not have waived] the issue for tactical rea sons; and e) consideration of the error must be “nec essary to do substantial justice.” Id ; at 641-42 (quoting Tenn. R. Crim. P. 52(b), remaining citations and footnotes omitted). Tennessee Code Annotated section 39-11-201 provides that “[n]o person may be convicted of an offense unless each of the following is proven beyond a

reasonable doubt: . . . the offense was committed

prior to the return of the formal charg e.” In Brown , this Court th us found “that our-10-

legislature has mandated that before a person ca n be convicted of a criminal offense, the State must prove beyond

a reasonable doubt that

the person committed the offense prior to the time he or she was formally c

harged with the offense.” Brown , 53 S.W.3d at 278. This burden is

gener ally , and ea sily , fulfille d by reading the indic tment to the jury after the jury is sworn in. Id . at 279 (citing David L. Ray bin, TennesseeCriminal Pr actice a nd Proce

dure , § 26.10.) Although Defendant in the case sub judice argue s that hisindictmentdoes not indicate that the offense occurred before the return date, the face

of the ind

ictment c learly

states tha t the offe nse occurred on or abo ut Augus t6, 2003, and the indictment was returned by the g rand jury on Mar

ch 1, 2004. However, the State concedes that the indictment was not re ad to the jury, and the record does not in

dicate that the jur

y w as shown t

he indict ment. Nonethe less, in the event the indictment is not read or shown to the jury , the State may satisfy its burden o f proof by “

merely ask[ing] a

n appropriate witness whether the actions of the defendant constituting the offense occurred bef ore the defendant was charg ed with the offense.” Id

. Officer Burns testified that he took Mr. Webber over to Thomas Cove where Defenda nt and Mr. Wilson had been apprehended within thirty minutes of the robbery

on August 6, 2003. The following dialog occurred: [STATE]: Now, w hat di d you first char ge [Defendant] with by

way of criminal offense s? [OFF ICE R BUR NS]: Charged

him with criminal responsibility fo r the facilitation of a f el on y. [STATE]: And what e lse did you charg e him with, if anything, r elating to that – [OFF ICE R BUR NS]: I believe that was it, at that time. [STATE]: Now, who ultimately makes the decision about wha tthe

proper charge is with respect to prosecution of criminal cases he re in He nr y Co un ty? [OFF ICE R BUR NS]: The District Attorney’ s Office. [STATE]: And after conferring with the DA’ s office, was that charge am en de d o r c ha ng ed to ag gr av at ed ro bb er y? [OFF ICE R BUR NS]: Yes, it wa s.-11-

Based on the foregoing, we conc lude that the State proved bey

ond a reasonable doubt that the offense

was commi

tted prior to the return of

the formal charge. There fore, there is no plain error. Defendant is not entitled to relief on this issue. CONCLUSION After a thorough review of the r ecord, the judgments of the trial court are affirmed.

___________________________________ THOMAS T. WOODALL , JUDGE