IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs November 2, 2010

STATE OF TENNESSEE v. MICHAEL FARMER AND ANTHONY

CLARK

Appeal from the Shelby County Criminal Court

No. 08–6635 John T. Fowlkes, Jr., Judge

Nos. W2009-02281-CCA-R3-CD and W2009-02283-CCA-R3-CD - Filed July 8, 2011

JOSEPH M. TIPTON, P.J., concurring in part and dissenting in part.

I dissent from the majority’s holding that the State proved beyond a reasonable doubt

that Terrell Westbrooks suffered serious bodily injury as that term is contemplated by

Tennessee Code Annotated section 39-11-106(a)(34). I believe the majority’s holding

upends the statutory definition of “serious bodily injury” by essentially declaring that any

injury inflicted by a deadly weapon results in serious bodily injury. I do not believe the

statutory definitions support such an interpretation.

Pertinent to this appeal, aggravated robbery is a robbery committed by use of a deadly

weapon or where the victim suffers serious bodily injury. T.C.A. § 39-13-402(a)(1), (2)

(2010) (emphasis added). Especially aggravated robbery is robbery committed by use of a

deadly weapon and where the victim suffers serious bodily injury. Id. § 39-13-403(a)(1), (2)

(2010) (emphasis added).

The majority holds, “Wounds that are not themselves life-threatening, but which were

inflicted in a manner that necessarily involves a substantial risk of death, constitute serious

bodily injury within the meaning ofsection 39-11-106(a)(34)(A).” The majority opinion then

concludes, based upon medical knowledge and its own conclusions that are outside the proof

in the Defendants’ cases, that Mr. Westbrooks’s injury qualified as a serious bodily injury

because it involved a substantial risk of death. Essentially, the majority’s holding means that

the use of a deadly weapon resulting in any injury, because of the weapon’s inherently deadly

nature, involves a substantial risk of death. This renders meaningless the distinction between

aggravated robbery, involving a deadly weapon or serious bodily injury to a victim, and the

greater offense of especially aggravated robbery, involving a deadly weapon and serious

bodily injury to a victim. Following the majority’s holding, any injury inflicted with a deadly

weapon in the course of a robbery elevates the crime to especially aggravated robbery,
without regard to the factual proof of nature of the injury actually inflicted. I do not believe

this is the law.

Even when viewed in the light most favorable to the State, the record is devoid of

proof that Mr. Westbrooks was at a substantial risk of death or that he suffered protracted

unconsciousness, suffered extreme physical pain, protracted or obvious disfigurement, or

protracted loss or substantial impairment as a result of the gunshot. This in no way

minimizes Mr. Westbrooks’s injury, but rather is a function of the State’s failure to prove the

serious bodily injury element of especially aggravated robbery. The majority holds that the

fact that Mr. Westbrooks was never at actual, substantial risk of death was a “serendipitous

turn of events for the victim” and should not benefit the Defendants. I believe, however, that

this court cannot substitute its own conclusion about the nature of a victim’s injury when the

State fails to offer facts to support that conclusion. The proof was not sufficient to support

the Defendants’ convictions for especially aggravated robbery of Mr. Westbrooks.

I conclude, though, that the State’s proof was sufficient to support convictions for

both Defendants for the aggravated robbery of Mr. Westbrooks. Viewed in the light most

favorable to the State, the robbery of Mr. Westbrooks was accomplished with a deadly

weapon. See T.C.A. § 39-13-402(a)(2).

I would modify both Defendants’ Class A felony convictionsfor especially aggravated

robbery to Class B felony aggravated robbery and remand the cases for resentencing for these

convictions. I concur in the portion of the majority opinion affirming Defendant Farmer’s

sentence for aggravated robbery of Darnay Taper.

____________________________________

JOSEPH M.TIPTON, PRESIDING JUDGE

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