# FILED
July 24, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JUNE 1998 SESSION

STATE OF TENN ESSEE, ) ) NO. 02C01-9707-CR-00255 Appellee, ) ) SHELBY COUNTY VS. ) ) HON. BERNIE WEINMAN, IRA BARBER, ) JUDGE ) Appellant. ) (Aggravate d Robbery)

FOR THE APPELLANT : BRETT B. STEIN 236 Adams Avenue Memphis, TN 38103-1922 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter MARVIN E. CLEMENTS, JR. Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General PAUL THOMAS HOOVER, JR. Assistant

District Attorney

General 201 Poplar Avenue, Suite 301 Memphis, TN 38103-1947

OPINION FI LED:

AFFIRMED

JOE G. RILEY, JUDGE2 OPINION

The defendant, Ira Barber, was c onvicted by a Shelby County jury of two (2) counts of aggravated robbery . He was sentenced to concurrent terms of ten (10) years for each count. On appeal, he clai ms that (1) the trial cour t erred in allowing the prosec utor to read the indictment to the jur y prior to the state pr

esenting its proof, and (2) the jury instruction on reasonable doubt was unconstitutional. After
a review of the record before this Court, we find no error. Accordingl

y, the judgment of the trial court is affirmed.

FACTS
Although the sufficiency of the c onvicti ng evidence is not at i ssue, a brief recitation of the facts is app ropriate . Shortly after midnight on October 1, 1996, Carolyn Turley

and Emma Thomas left their place of employment and began driving home. Because Turley received a page on her “beeper,” they stopped at a convenience store so that Turley coul d us e the pay ph one. Thomas exited the vehicle and placed the call whil e Turley sat in the car. Turley then got out of the car, and while she was on th e phone, both victims notic ed a man walking down the street. The man conti nue d walking around a cor ner and suddenly appeared from the side of the building, pointed his gun at them and t old Turley to “dro p the key

s off”
or he would kill both of them. He also demanded money. The man took Turley’s keys and her “beeper,” and left in t he vehicle. The purses of both victims were in the vehicle. The vict ims subsequently identi fied the man as the defendant. Defendant was convict ed of two ( 2) counts of aggrava ted robb ery. He now brings this appeal as of r ight.

READING THE INDICTMENT1 In his brief defense counsel only cited the Onidas case and did not mention, nor try

to distinguish, the Banecase. Yet, present defense counsel also represented the defendant in Bane
. Banewas cited in the state’s brief. 3 In his first issue, defendant contends that the trial court erred in allowing the prosecutor

to read the indictment to the j ury. He claims that informing t he jury that
a grand jury return ed an indictment against the def end ant deprives him of his
cons titutional right to the presumption of i nnocence. See State v. Oni das , 63 5 S.W.2d 516 (Tenn. 1982). He further alleges that the indictment itself is irrelev

ant; therefore, the prejudicial effect of reading the indictment far outweighs it probat ive value. In State v. Bane , 853 S.W.2d 483 (Tenn. 1993), the Su preme Court held that reading the indictment to the jury is a proper and appropriate procedure. In so holding, the Court distinguishe d the form er case

of State v. Onidas , supra . In Onidas , the prosecutor explained the functions of the grand juryand the procedure utilized in returning a true bill during voir d ire . 635 S .W.2d 516-17. The Court in Onidas determined that informing the ju ry of such matters was irrelevant, unduly prejudicial to the defendant and, the refore, reversible er ror. Id. at 517-18. However, in Bane the prosecutor simply read the indictment to the jury. 853 S.W.2d at 484. The Court noted that the ind ictment “at best is a mere ac cusation to inform the jury of the charges ag ainst the defendant. It raises no presumption of guilt.” Id. Therefore, the Court concluded that merely reading th e indictment to the jury was a permis

sible procedure. Id. 1 In the case sub judice , there is no indication in the r ecord that the assistant district attorney did anything other than sim pl y read the i ndictme nt to the jury. Therefore, this case is in line with Bane , and the trial court did not err in allowing

the state to read the indictment to the j ur y. Furthermore, the trial court instructed the jurythat the indictment is not “evi dence against the defendant and does not c reate any inference of guilt.” Jurors are presumed to follow the instru ction s of the trial court. Henley v. State , 960 S.W.2d 572, 58 1 (Tenn. 1997). This issue has no merit.4 REASONA BLE DOUBT JURY I NSTRUCTION

In hi s final issue defendant contends that the tri al court’s instructi on to the juryon reasonable doubt is unconsti tutional. He asserts that the instruction lowered the state’s burden of

proof by stating “absol ute certainty of guilt is not demanded by the law to convict o

f any criminal charge.” The issue is without meri t. The reasonable doubt jury instruction utiliz ing the “absolute certaint y” language has been upheld b y t his C ourt. See State v. Willie Taylor , C.C.A. No. 02C01-9702-CR-00080, Shelby County (Tenn. C rim. App. filed March 10, 1998, at Jackson); State v. Melvin Edw ard Henning , C.C.A. No. 02C01- 9703-CC-00126, Madison County (Tenn. Cr im. App. filed Octobe r 24, 1997, at Jackson); State v. James Earl Somerville , C.C.A. No. 02C01-9608-CC-00289, Tipton County (Tenn. Crim. App. filed October 13, 199 7, at Jackson).

CONCLUSION
For the foregoing reasons , the judgment of the trial cour t is affirmed.

JOE G. RILEY, JUDGE CONCUR:

PAUL G. SUMM ERS, JUDGE

DAVID H. WELL ES, JUDGE