# FILED
July 15, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE JUNE 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 03C 01-9709-CR-00387 Appellee, ) ) KNOX COUNTY VS. ) ) HON. RICHARD R. BAU MGARTNER, MARCUS WELCOME, ) JUDGE ) Appellant. ) (Robbery)

FOR THE APPE LLANT: FOR THE APPELLEE:
MARK E. STEPHENS JOHN KNOX WALKUP District Public Defender Attorney General & Repor ter R. SCOTT CA RPENTER TODD R. KELLEY Asst. Public Defender Asst. Attorney General 1209 Euclid Ave. John Sevier Bldg. Knoxville, TN 37921 425 Fifth Ave., North Nashville, TN 37243-0493 RANDALL NICHOLS District Attorney General MARS HA SE LEC MAN Asst. District Attor

ney General-andJERRY HALL Acting Asst. Distri ct Attorney General City-County Bldg. Knoxville, TN 37902

OPINION FILED:____________________

AFFIRMED JOHN H. PEAY, Judge2 

### O P I N I O N

The defendant was indicted for robbery. Following a tri al, the jury returned
a verdict of guilty. In t his appeal as of right, the defe ndant argu es that the convicting evidence is insufficient to sustain hi s conviction and tha t a remark made by the prosecutor

during closing

argument amounts to revers ible error. Finding no merit in the defendant’s ar

guments, w

e affirm.

The victim and a f riend drove to a K noxvill e nightclu b. They beca me separated wh en the n ightclub closed, so the victim went to his car and began slowly drivingin the area sear ching for his frien d. The de fendan t was stand ing down the street
on the corner. When the victim drove by, the defendant asked the victim for a ride home, and the victim agreed. The victim continued to look for his friend for approximately ten minutes, but when he still did not spot him, he decided to dr ive the defendant home.

As the v ictim drove, th e defen dant gave d irection s to an apa rtment co mplex. The victim slowed

the car and shifted the transmis sion into “park” to

allow the defendant to exit the car. The defendant reached over, grabbed the keys from the i gnition, and ran from the car. When the victim pursued him, the defendant stated, “Don’t be stupid,I have a gun” and acted as if he wer e reaching for a gun. The defendant th en ran back to the
car and began to drive aw ay. The victim grabbed the partially opened pas senger’s side window and tried to open the door to s top the defendant. The defendant struck the victim’s hands s everal times and continued t o drive away w

ith the victim hanging

on to the car. The victim w

as dragged one quarter of a mile before he lost his gr ip.

The victim walked to a

nearby store where he called the police to repor t the3

incident. He was t aken to the hos pital, where he was treated for a sprained knee and several abrasions to his arms and l egs. Meanwhile, the victim’s car, w hich was being driven by the defendant, was spotted, and the defendant was pulled over, arrested, and t ransported to the police station. When the victim was released from the hospita l, h e identified the defendant.

On appeal, the defendant argues that the evidence is insufficient to support his conviction, in that

the proof does not support the elements charged by the indictment. The defendant was indicted for robbery under T.C.A. § 39-13-401, which defines robbery
as “the intentional or know ing theft of property from the per son of another by violence or putting the person in fear.” Even though robbery only r equire s proof o f either violence or fear, not both, the indictment in this case charged that the defend ant “did u nlawfull y, knowingly, by violence and by putting [the vi ctim] in fear, t ake from the person of [the victim]a 1982 Pontiac Trans Am motor vehic le, in violation of T.C.A.39-13-401.” Even so, the State presented sufficient ev idence of both violence and fear. In an effort to take the victim’s car from the v ictim, the defendant struck the victim’s hands several times and dragged the victim for one quart er of a mile asthe victim hung on to the car. T his shows the defendant took the victim’s pr operty by violenc

e. Moreover, th e vi ctim testified he became scared when the defendant threatene d he had a gun, whic h shows that the defendant also used fear to separate the v ict im from his property. Sin ce the State presented adequate proof of both vi olence and f ear, as provided in the i ndictment, the defendant’s argument is without merit.

The defe ndant also argues that a remark made by the prosecutor duri n g closing argument amounts to reversible error. During the State’s closing argument, the prosecutor

told the jury, “If y

ou don’t find the defendant guilty, i f you come back with a4

not-guilt y, he is going to wal k out -- right out of this courtroom -- a free man. He is going to rob someone else.” Defense counsel objec ted to this remark as imprope r, and the trial court agreed. Defense counsel moved for mistrial, which the trial court denied. However, shortlyafter t h e prosecutor’s remark, th e trial court sua sponte i nstructed the jury to “disregard any remark that applies to any sugg estion offuture conduct.” The defendant
now argues that not hi ng short of declaring a mistrial could have cured the prejudice enured to him by the prosecutor’s improper remark.

Statements made in closing argument c onstitute reversible error only when the statements were improper and that impropriety affected the v erdict. State v. Sutton , 562 S.W.2d 820 (Tenn. 1978 ); State v. Pulliam , 950 S.W.2d 360 (Tenn. Crim. App. 1996). Commentary on the consequences of an acquittal are generally improper. See Coker v. State , 911 S.W.2d 357 (Te nn. Crim. App. 1995); Bowling v. State , 3 Tenn. Crim. App. 176, 458 S.W.2d 639 (1970). Nevertheless, in evaluating the impact of the remark, this Court must con sider the conduct in context ; the cura tive measures undertaken; the prosecutor’s intentin making the statement; the cumulative effect of the improper conduct and any other errors in the record; and the relativ e strength o r weakness of the case. Judge v. State , 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976); see State v. Buck , 67 0 S.W.2d 600, 609 (T enn. 1984).

Here, the prosecutor’s remark was not t he centra l focus of his closing argument, and the record does not indicate that the pros ecutor made the remark in bad fa ith. In context, it was little more than a passing remark, and almost immedia tely, th e trial court warned the jury to disreg ard the prosecutor’s remark and base its decision solelyupon the evidence presented on the charged crime. The defenda nt does not allege that the cumulative effect of this imprope r remark combined with other errors in the5

record was great; in fact, the defendant fails to identify any other error s in the record. Considering all of this

in conjunction with the strength of the Stat e’s case, we conclude that the prosecutor’s remark was not so inflammatorythat it affected the verdict to the defendant’s detriment, and we thus necessarily rejec

t the defendant’s argument that the prosecutor’s remark w

as incurably prejudi cial. See Pulliam , 950 S.W.2d at 369 & n.3.

The defendant’s conviction is a ffirmed.

_______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ JOSEPH M. TIPT ON, Judge

______________________________ DAVID G. HAYES, Jud ge