### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs J

uly 25, 2001

STATE OF TENNESSEE v. DANIEL R AY STYLES
Appeal from the Circuit Court for Cocke County Nos. 7598,7599, and 7616 Ben W. Hooper, II, Judge

No. E2001-00905-CCA-R3-CD October 17, 2001 The defendant, Daniel Ray Styles,was convicted of felony escape, agg ravated assault, aggravated rob bery, theft over $1,000, and aggravated criminal trespassing. The trial court imposed an effective sentence of fourteen years. On appeal, Defendant raises the following issues: (1) whether the trial court erred by failing to dismiss h

is case on the gr

ound that his

right to a speedy trial was violated; (2) whether the tria

l court erred in a

llowing the State t

o amend th

e indi ctments; (3) whether the indictmentcharging fe

lony escap

e was facially

void because

it was unsigned; and (4) whether the trial court erred by

failing to require the

State to make an election between aggravated assault and aggravated

robbery. After

a review of the record, we affirm the judgment of the trial court reg arding Defendant’s convictions ands entences for aggravated robbery , felony escape, and aggra vated criminal trespassing. However, we reverse and dismiss De fendant’s convictions for aggravated
ass aul t an d th eft as v iol ati ve o f con sti tut ion al p roh ibi tio ns a gain st d oub le j eop ardy. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed, in Part; Reversed and Dismissed, in Part.

T HOMAS T. W OODALL , J., delivered the opinion of the court, in which J AMES C URWOOD W ITT , J R ., and R OBERT W. W EDEMEYER , JJ., joined.

Susanna L. Tho

mas, Newport, Te

nnessee, for the

appellant, Danie

l Ray Sty les.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Al C. Schmutzer, Jr., Distr

ict Attorney

General; and James B. Dunn, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION

On September 27, 1997, Defendant was incarcerated

at the Cocke County Jail and working
on Morristown Highway performing “litter pick-up” with other inmates from the jail. At some point, D efendant

e scaped from the litter crew and subsequently arrived at the home of Antonio and Christina Meza. The Meza’s daughter, Brandi France, previously had a two-yea

r relationship with-2-

Defendant

which produced

a child, and Defendant

was permitted to visit occasionally. The Sheriff’s Department

would typically drop Defendant off at the Meza’s home and return for him later. In t

his particular instan ce, however, Defendant’s visit was obviously unscheduled. After he pounded on the door andwas denied entrance, Defendant broke into the residence through a bedroom window. Walking into the living room, he discovered the presence of a twenty-y ear-old male, Matthew Means, and immediately began to interrogate him rega rding his reason for being there

and his relationship

with Brandi France. Means informed D efendant that thi

s information was “

none of his business.” Defendant asked Means whether he was “sleeping with his girl,” and Means replied that Brandi was not “his girl.”
Thereafter, Defendant and Brandi went into a bedroom to t alk pri vat ely. When they emerged approximately

ten minutes later,

Defendant dema

nded the key

s to Means’ truck.

Me an s refused. Defendant

told Means to give him the keys o r he would kill him,

and Means refus

ed again. At this point, Means’ attent ion was distracte d by something . When he turned to lo ok at it, Defenda

nt hit him on the back of the head with a fire poker, knocking him unconscious. Defendant then picked Means’ keys up off the

floor anddeparted with his truck. Sometime later, Defendant drove into a ditch and was arrested. Meanwhile, Means was taken to Cocke County Memorial Hospital where he was treated for a head wound and severe concuss i on, receiving f

ive staples in the b

ack of his head.
ANALYSIS I. Right to a Speedy Trial

Defendant

first contends tha

t the trial court e

rred by re

fusing to dismiss h

is ca se on the ground that he was denied his con stitutional right to

a speedy tr

ial. Defendant argues that the failure to try his case in a timely manner prejudice d his defense. We disagree.

In State v. Bishop , 493 S.W.2d 81 (Tenn. 1973), our supreme court adopted the four (4) part test promulgated in Barker v. Wi ngo , 407 U .S. 5 14, 92 S. Ct . 2182 , 33 L. Ed. 2d 101 (1972), as the proper method for determining whether a defendant has been denied his constitutional righ t to a speedy tri al. The se f our (4) fact ors inc lud e: ( 1) t he l engt h of the del ay; ( 2) t he re aso ns f or t he d ela y; (3) the accused’s assertion of his right to a speedy trial; and (4) whether the accused was prejudiced by the delay. Bishop , 493 S.W.2d at 84. No single facto r is determinative

in all cases, but th

e most crucial inquiry is whether the delay prejudice d Defendant. Tillery v. Sta te , 565 S.W.2d 509 (Tenn. Crim. App. 1978).
First, we observe that Defendant was indicted on November 17, 1998, and his trial began on April25, 2000. T hus, the length of delay from the date of Defendant’s indictments to his trial equaled almost seventeen months which is sufficient to trigger an analysis under Bishop and Barker

. See Doggett v. United States , 505 U.S. 647, 652, 112 S.Ct. 2686, 2691, n.1, 120 L.Ed.2d 520 (1992) (a delay of one

year or lon

ger “marks the

point at which cour

ts deem the del ay unreasonabl e enough to trigger the Barker

inquiry”).-3-

Sec ond ly, concerning the reason for the delay, t

he trial court sta

ted that it found not

hing in the record to indicate what caused the delay

in Defendant’s trial. Defendant contends that his trial
was delayed because of a civil matter filed by Matthew Means against the Cocke County Sheriff’s Department. However, this claim is also not clearly supported by the record. S ince fault f

or the de layin tryingthis matter cannot be conclusively attributed to either Defendant or the State, we
con clu de t hat thi s fa cto r do es n ot f avo r ei the r par ty. Rega rding w hether Defendant asserted his right to a speedy trial, the tr ial court found that Defendant initially

asserted this right in a court without any jurisdiction over his case at the time that the right was asserted. The record reflects that Defend ant first filed his motio

n in Circuit Court, while his case wa s pen ding in General Sessions Court. Since the Circuit Court did not have jurisdiction over Defendant’s case at that time, any motion filed in that court would be premature. Consequently

, Defendant’s r

ight to a speedy

trial was not asse

rted in the proper

court, i.e., Circ

uit Court, until the day of trial when Defendant made an oral motion to dismiss the indictments on the ground that the State fail

ed to provide him with such right . Moreover, the r

ecord does not co

ntain the motion for speedy trial filed while the case was pending in the Gener al Sessions Court. For the above reasons, t

his factor fails t

o support Defenda

nt’s argument.

The last fact or, whi ch co nsi ders whe the r a de fend ant was prej udi ced b y the del ay, similarly fails to supportDefendant’s contention. Defendant asserts that because the State delayed in taking his case to trial, two

defense witness

es died and this

prejudiced

his defense. Specifically, Defendant argues that the decease

d witnesses, Officer R. D. Moore and Tim Doolittle, would have provided pivotal testimony concerning his whereabouts on the day he

escaped from the litter crew. However, the record provide

s no proof of what f

acts these witnesses would have testified to. Furthermore, the trial court determined that Officer Moore died prior to the return of indictments against Defendant and that, since Doolittle died “sometime in 1998,” his death may also have preceded the indictments (which were not returned

until November 17,

1998). In sum,

we concur with the trial court’s finding that Defendant failed to demonstrate any prejudice resulting f rom the delay.

Acco rdi ngly, we find that Defendant was not denied his constitutional right to a speedy tria

l. Thus, he is not entitled to relief on this issue.

II. Amendment

of Indictment

Defendant

argues that the trial court erred by permitting

the State to amend the date of the offenses charged in indictment nos. 7616 and 7598, alleging aggravated robbery and felony esc

ape, res pect ive ly, without giving him proper notice. Defendant further contends that the requested amend ment w as untimely and also precluded by Rule 7(b) of Tennessee’s Rules of Criminal Procedure, which allows amendments over a defendant’s objection only if no additional or different offense is charged and

no substantial rights ar e affected. The State responds that the trial court’s decision to allow the amendment was proper under Rule 7(b) and applicable case law. We agre e.-4-

The record reflects that on April 24, 2000, the day prior to Defendant’s trial, the State filed
a motion to amend the indictments alleging aggravated robbery and fe lon y escape to read that the offenses occurred on Sept ember 17, 1997, ra

ther than in July

1998. The in

dictments f

or the remaining counts, charging aggravated burglar y, aggravated

assault, and theft, showed the correct date as September 17, 1997. The trial court granted the State’s motion on the date it was filed.

The trial court has the discretion to grant or deny a motion to amend an indictment, and

this Courtwill alter such a r

uling only w

here that discre

tion has been abu sed. State v. Kirkland , 696 S.W.2d 544, 545 (Tenn. Crim. App. 1985). Rule 7(b) of Tennessee’s Rules of Criminal Procedure states the following:

An ind ictment, pr esentment or information may be amended in all cases with the consent of Defendant. If no additional or different offense is thereby charged and
no substantial rights of th e defendant are th

ereby prejudice

d, the court may pe

rmit an amendment without the defendant’s consent before jeopardy attaches

. (Emphasis

added). Pursuant

to this rule, the trial court had the discretion to allow the State to amend the date, since the date was immaterial and the amendment neither changed nor added an offense. See Statev. Kennedy , 10 S.W.3d 280, 284 (Tenn. Crim. App. 1999) (a defendant is not charged with a new crime when the date in the indictment is merely corrected in order for the original charge to stand); State v. Badge

tt , 693 S.W.2d 917, 919 (T enn. Crim. App. 1985 ) (amending th e date in an indictment does not charge a defendant with a new or an additional crime).

Defendant

also contends that the amendment interfered with h is right to a grand jury indictment under A

rticle I, sec

tion 14 of the Tenne

ssee Constitution, be

cause the grand jury never considered

whether the proof was sufficient to indict him for the acts allegedly occurring on the
a mended offen se date. However, because an amendment to correct an immaterial date in the indictmentdoes not allege a new crime, Article I, section 14 concerns are not implicated. Kennedy , 10 S.W.3d at 284. Defendant is not entitled to relief on this issue. III. Unsigned Indictm

ent
Next, Defendant alleges that the absence of any signature on

the indictment charging felony escape renders it facially void. The indictment was signed by the foreman of the gra nd jury, but was not signed by

the District Attorn

ey Genera

l.

Init ial ly, we observethat Defendant’ s entire argume nt concerning t

his issue consists

of two statements: (1) the absence of a signature rendered the indictment invalid, and (2) the trial court erred by failing to dismiss it. Since this issue is not adequately briefed and Defendant declined to cite any legal authority to

support his content

ion, this issue is waived. SeeTenn. Ct. Crim. App . R. 10; Tenn. R. App. P. 27(a).-5-

In addition to Defendant’s failure to adequately support the i ssue, Rule 12(b)(2) of the Tennessee Rules of Criminal Procedure further provides that objections of this nat ure should

be raised prior to tr

ial:

Defenses and objections based on defects in the indictment , presentm en t or information (othe

r than that it fails t

o show jurisdiction i

n the court or to

charge an offense which objections shall be noticed by the court during the pendency of the proceedings). (Emphasis

added). According to the record, Defendant objected to the unsigned indictment af ter the jury had been sworn and the trial had commenced The trial court overruled the objection based on Defendant’s failure to timely object to the alleg

ed defect. Tenn. R. Crim. P. 12(f); see al so Tenn. Code Ann. § 40-13-207 (1997). We find no erro r in this ru ling. State v. Nixon , 977 S.W.2d 119, 121 (Tenn. Crim. App. 1 997) (included wi thin the class

of indictment

defects which must be raised prior to trial ar e defects th at go to matters of form rather than substance, e.g., failure of the district attorney general to sign the indictment). Defenda nt is not entitled to relief on this issue. IV. Multiple Convictions (Phrased by Defendant as an “Election of Offense” Issue)

Defendant

also contends that

the trial c ourt erred by

“failing to require the State to elect betweenaggravated

assault and aggravated robbery.” He essentially argues that his convictions for both of these offenses cannot stand because the elements of aggravated

assault are included in the elementsof aggravated rob bery. The State respond s that Defendant

’s failure to supp

ort this contention with argument, c itation to proper authorities, or

appropriate references to the record, has effectively

waived this issue. N

otwithstanding wa

iv e r, the State argues that the record contains sufficient proof to est ablish the elements for both aggravated assault and aggra vated robbery as charged by the indict

ment. Despite Def

endant’s failur

e to artfully

present this issue, our review of the record reveals evidence of plain error such that Defendant’s convictions for aggravated

assault, and also his conviction for theft, cannot be sustained in light of State v. Denton , 938 S. W. 2d 373 (Tenn. 1996).

Where an error in the criminal proceedings concerning a d efendant a

re found to affect the substantial rights of that de fendant, the error may be noticed at any time, even though not

raised in the motion for new trial or assigned as error on appeal, in the discretion of the appellate court where necessary to do substantial justice. Tenn. R. Crim. P. 52(b). In determining whet her an error constitutes “plain error,” this Court set forth the following factors for cons ideration in State v. Adkisson , 899 S.W.2d 626 (Tenn. Crim. App. 1994): a) the record mu

st clearly e

stablish what occu

rred in the trial c

ourt; b) a clear and unequivocal rule of law must have been breached; c) a substantial right of the accused must have been adversely affected; d) the accused did not waive the issue for tactical reasons; and e) consideration of the error is ‘necessary to do substantial justice.’-6-

Id. at 641-42. For the reasons following, our review of the record reveals that De fendant’s convictions for aggravated assaul t an d th eft , in add iti on t o hi s co nvi cti on f or ag grav ate d ro bbe ry, constitute multiple convictions for a sing le criminal offense and thus violate constitutional prohibitions against double jeopardy. Because suc h violati ons satisfy th

e factors outline

d in Adkisson , we conclude that plain error exists under the circumstances presented here.

To recount, Defendant’s indictment alleg es that he intention

ally or know

ingly cau sed bodily injury t o th e vi cti m by t he use of a deadly weapon, which is agg ravated assault. See Tenn. Code Ann. § 39-13-101(a)(1), -102(a)(1)(B) (1997). Defendant was also indictedfor obtaining pr operty from the person of the victim by use of vi olence and a deadly weapon, which is defined as aggravated

robbery, and

for knowingly exercising control over property (a Toyota

vehicle) without consent and with intent to deprive the owner, which is defined as theft. See Tenn. Code Ann. §§ 39- 13-402(a)( 1), 39-1 4-103 (1997). Because the elements of these offenses may require proof of similar facts, Defendant’s dual convictions fo r a ggravated robbery and ag gravated assault, as well as aggravated robbery and thef t, raise the double jeopardy concerns addressed here in.

In State v. Denton , 938 S.W.2d 373 (Tenn. 1996), the Tennessee Supreme Court reaffirmed the protections of Ar

ticle I, sect

ion 10 of the Tenne

ssee Constitution ag

ainst multiple punishments for the same offense and provided a four-step analysis for use in determining when this circumstance exists: (1) an analysis of the two statutes in question, (2) an analy sis of the evidence needed to prove the two offenses, (3) a consideration of the number of victims and discrete acts, and (4) a comparison of the purposes behind the two statutes. Id. at 379-81. These steps are weighed as they relate to each other, with no one factor being determinative. Id. at 381. A. Aggravated Assault

The initial inquiry under Denton involves analy sis of the tw o s tatutory provisions, as providedin Blockburger v. United States : “[W]here the same ac t or tran saction constitute s a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision require s proof of an additional fact which the other does not.” Blockburger v. United States , 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed.2d 306 (1932).

As alleged in the indictment in the case sub judice , to obtain a conviction for aggravated assault, the State had to prove that (1) Defendant intentionally or knowingly committed an assault
as defined in Tenn. Code Ann. § 39-13-101(a)(1 ), (causi ng bodily injury); and (2) that Def endant used or displayed a deadly wea pon. SeeTenn. Code Ann. § 39-13-102(a) (1997). To obtain a conviction for aggravated robber y a s indicted, the State was required to prove that (1) Defendant perpetrated

an intentional or k

nowing theft of p

roperty fr om the person of the

victim by vio

l ence; and (2) that Defendant accomplished the theft with a deadly weapon. S ee Tenn . Code Ann. §§ 39-13-401, -402(a)(1) (1997). The offense of aggravated r obb ery requir

es proof that Defendant committed a theft of property, whereas agg ravated assault does not. On the other hand, aggravated-7-

assault , a s alleged, requires proof of bodily injury to the victim, whereas aggravated robbery does not. Therefore, strictly speaking, these offenses a re not the “same” under a Blockburger analysis.

Con vers ely, analysis under the secondprong of Denton indicates that dua l convictions would violate constitutional proh

ibitions against d

ouble jeopardy. The evidence used to prove each offense is virtually identical. For aggravated a s sault, the State proved that Defendant intentionally or knowing lya ssaulted and injured the victim with a fire poker. The State’s proof for aggravated robbery was that Defendant intentionally or knowingly used violence against the victim with a fire poker, and the n to ok h is k eys and truck. For purposes of applying our robbery sta

tute, the element of “violence” req

uires evidence o

f “physica

l force unlawfu

lly exercise

d as t o damage , injure or abuse.” State v. Fitz , 19 S.W.3d 213, 217 (Tenn. 2000). Thus, the of fense of agg

ravated assault

was established by the same proof used to satisfy the violence element of

the aggravated robbery offe nse.
The third step in the Denton analysis exa mines the number of

victims and discre

te acts involved. When there exists only one victim, as here, multiple convictions are generally unjustified. See Denton , 938 S.W.2d at 381. This is especially true when the evidence does not suggest that the aggravated assault of the

victim and the robbery were two discrete acts. See English v. State , 411 S.W.2d 702, 707 (Tenn. 1966) (in a case where the defendants were convicted of g aming and lar ceny, and the conduct which led to the gaming charge was designed to fac

ilitate the commission of larceny, the gaming conviction could not stand); Cf. State v. Black , 524 S.W.2d 913 (Tenn. 1975) (wheredefendant robbed victim at gunpoint and, afterward, stepped back and shot the victim in the leg, the robbery

was considered c

ompleted prior to in

fliction of th

e wound and two separate and distinctoffenses wer e committe d, even tho ugh they occur red at substantia

lly the same t

ime and in the course of

a single criminal e

pisode); Denton , 938 S.W.2d 373, 379 n.14 (“When the legislature has made its intent clear that cumulativepunishment is intend ed, such as in

the case of felony murder and the underlying felony, see State v. Blackburn , 694 S.W .2d 934 (Tenn. 1985), our [double jeo pard y] analysis under Black is pretermitted.”). In the case sub judice , the facts s how tha t Defendant

demanded the vic

tim’s keys tw

ice, and was ref

used both times,

prior to hitting the victim in the head with a fir

e poker. Thus, it a

ppears that Def

endant assaulted

the victim to furthe

r his commission of t he ro bbe ry, that is, to obtain possession of the keys to the victim’s vehicle, and that these crimes were committed in the cours e of a si ngle criminal episode by a defendant with one obj ect ive : ro bbe ry.
The final step in a doub

le jeopardy

analysis re

quires u s to exa

mine the purposes of the statutes underly

ing the re spective offenses to determ

ine wheth er they further c ommon goa

ls. We observe that the purpose of the ag gravated robbery statute, as applicable here, is to punish theft accomplishedby the use of a deadly weapon, and the p

urpose of aggravated assault, as charged here, is to prohibit bodily injury caused by use of a deadly weapon. Clearly , one of the purposes of each statute is the prohibition of these offenses with a deadly weapon and also enhance the punishment for those found guilty.

In sum, after weighing each factor and considering their re l ation t o each other, we find Defendant’s convictions for both aggravated

robbery and aggravated a ssault violate the principles-8-

of double jeopardy. Although t he statutes are not the “same” under a Blockburger analysis, essentially

the same evidence supported both convictions, the offens es invol ved one victim, they arose from a sing

le criminal act a

nd resulted from a

single criminal intent. Moreover, the statutes have similar purposes in

that both offense

s punish the accus

ed who commits a cr

ime against a

person while armed with a deadly weapon. The harm sought to be punished in ag grav ated assault with a deadly weapon is en compassed i n aggravated ro bbery committ ed with a dea dly weapon, eve n though aggravated

robbery also in volves a th eft and aggr avated assault does not. T his conclusion is consiste nt w ith one of the guiding principles for resolving double jeopardy punishment issues as quoted by our supreme court in Denton , which states that

Even if it be conceded that two convictions and two punishments may

be had in any case upon separate cou nts, the p ractice is not approved, and, certainly it must be clear that the offenses are wholly separate and distinc

t . . . . The power of election rests with the state, not the criminal, and the state should not split the transaction s

o as to subject the accused to cumulative sentences for the same offense or for different offenses i n volving the same act as a means of pyramiding punishment for two or more cognate offenses.

Denton , 938 S.W.2d at 380 (citations omitted) (emphasis added). Because only one conviction can be sustained, Defendant’s conviction for aggravated assault is reversed a nd the charges f

or that offense are dismissed. B. Theft

Neither Defendant nor the State has addressed the issue whether Defendant’s conviction for theft may be sustained. However, for the reasons following we find that

double jeopardy principles require us to reverse and dismiss Defendant’s conviction for this offense.
Here, Defendant was c

onvicted of theft

of property

(a Toyota tr

uck) valued at more than $1,000 but less than $10,000, a Class D felony. SeeTenn. Code Ann. §§ 39-14-103, -105(3) (1997). Conviction for this offense required the State to prove that Defendant knowingly exercised control
over property (

in this case, the victim’s Toyota truck) without consent and with intent to deprive the
owner. See Tenn. Code Ann. § 39-14-103 (1997). Defendant’s conviction for aggravated robbery
was provedby evidence that Defendant obtained pro pert y fro m th e per son of t he v ict im ( spe cif ica lly, the keys to the

victim’s Toyota truck) by use of violence a nd a deadly weapon. See Tenn. Code Ann. § 39-13-402(a)(1). Although a Blockburger analysis reveals that the provisions for these offenses
are not the “same,” th

at is, that the prov

ision for aggr

avated robbery

requires proof o

f use of violence and a deadly

weapon which the

provision for thef

t does not, convictions for both are prohibited in the cas e sub judice . According to the double jeopardy provisions of the constitutions of bo th th e United States and Tennessee, a defendant may not be convicted of two off en ses ifone is a lesserincluded offense of anoth er under circum

stances such as th

ose presented here. See Brown v. Ohio , 432 U.S. 161, 168, 97 S.Ct. 2221, 222 6-27, 53 L.Ed. 2d 187 (1977) (whe n one offense

is classified
as a lesser-included of another, the les s er offense is the “same” for purposes of double jeopardy-9-

analysis where conviction for the

lesser offense

requires no proof beyond that necessary to convict for the greater offense). Case law, as w ell as t he s tat uto ry el eme nts for the ft a nd a ggra vat ed ro bbe ry, reveal tha t th eft is a les ser -in clu ded off ens e of a ggra vat ed ro bbe ry. See State v. Timothy R. Bowles ,

___S.W.3d ___, No. M1997-00092-SC-R11-CD, 2001 WL 856575, (Tenn. July 31, 2001) (it i s uncontestedthat theft is a less er-included off

ense of robbery (cit ing State v. Fitz , 19 S.W.3d 213, 216 (Tenn. 2000))); State v. Hayes , 7 S.W.3d 52, 56 ( Tenn. Crim. App. 1999) (where defendant was convictedof aggravated robbery a nd theft of the same property, court reversed and dismisse d the conviction for theft as a lesser-included offense of aggravate d robbery).

Since the same evidence, taking of the victim’s key

s and truck, was us

ed to prove both offenses,factor two of the Denton analysis likewise supports dismissal of the the ft conviction. Although it may

be argued that the aggravated robbery offense was completed when Defenda nt took the victim’s key

s, and this effec

tively seve

red this offense

from the subsequent commission of theft for purposes of prosecution, this result is inconsistent from our decision in State v. William Jason McMahan , No. 03C01-9707-CR-00262, 1999 WL 177590, Knox County (Ten n. Crim. App., Knoxville, March 31, 1999) no perm. to app. filed . In McMahan , the defendant beat the victim until he was unconscious, and then took a set of car keys and a bag of marijuana from the victim’s front pocket, removed an envelope containing the victim’s money from the table, and left in the victim’s
car. In support of separate con victions f or theft and agg ravated rob bery the Sta te argued that, although the defendant beat the victim in order to take money and car key s from him, the defendant didnot decide to take

the car until afte

r the beating wa

s concluded. This

Court was unpersuaded by the State’s argume

nt. Reversing the defendant’s conviction for theft, we relied on State v. Lowery , 667 S.W.2d 52 (Tenn. 1984) in which the supreme court found that, in order to be

convicted for bo

th robbery and theft, the jur

y must find tha

t the defendant f

ormed the intent to

steal the car subsequent to stealing the money

and the keys. McMahan , 1999 WL 177590 at *9 (citing Lowery , 667 S.W.2d at 57). The facts i

n the case su b judice support a similar c onclusion wherea

s Defendant cle

arly indicated his intent to take the car prior to striking the victim with the fire poker.

We further observe that the circumstances surrounding Defendant’s convictions for theft and aggravated

r obbery also fail to suppor

t multiple convictio

ns in that they

involve neither mu

ltiple victims nor more than one discrete act. See id. (evidence does not indicate two dis

crete acts where defendant completed robbery by taking keys, drugs, and money immediately before taking the car). Last ly, concerning factor four, our supreme court has held that the statutory provisions concerning robbery and larceny

protected overl

apping interest

s: both protectedproperty while robbery prote cted people as well. Lowery , 667 S.W.2d at 54. “The same reasoning also applies to aggravated robbery and theft.” McMahan , 1999 WL 177590 at *9. Defendant’s conviction for theft is reversed and dismissed.
CONCLUSION

For the for egoi ng reasons, Defendant’s conviction and sentence for theft and agg ravated assault are reversed

and dismissed as violative of state and federal constitu

tional protections

against-10-

double jeopardy. We affirm Defendant’s remaining convic tions and the sentences imposed for those convictions.

___________________________________ THOMAS T. WOODALL, JUDGE