Opinion
C.C.A. No. 01-C-01-9506-CC-00206.
May 9, 1996.
Appeal from HUMPHREYS COUNTY, HON. ALLEN W. WALLACE, JUDGE.
AFFIRMED
For the Appellant:
MICHAEL J. FLANAGAN, DALE M. QUILLEN
For the Appellee:
CHARLES W. BURSON, Attorney General Reporter, ELLEN H. POLLACK, Asst. Attorney General, DAN M. ALSOBROOKS, District Attorney General, GEORGE C. SEXTON, Asst. District Attorney General
OPINION
The defendant, Danny R. Morris, was convicted at a jury trial of aggravated robbery, a Class B felony. The trial court sentenced the defendant as a Range I offender to a term of confinement of twelve years in the Department of Correction.
The defendant presents two issues for review. He contends that the evidence contained in the record is insufficient, as a matter of law, to support a finding by a rational trier of fact that he is guilty beyond a reasonable doubt of aggravated robbery. He also contends that the trial court erred by permitting the State to amend the indictment prior to trial, and, thereafter, by refusing to grant his motion for a continuance. We find no error and, therefore, affirm the trial court.
The defendant and Billy R. Barrett were inmates at the Turney Center Industrial Prison in Only, Tennessee. They escaped during the early morning hours of June 12, 1993. Around the noon hour on June 13, 1993, the victim, Jess Lampley, was driving his pickup truck along Barren Hollow Road in Humphreys County. Barrett and the defendant were on the side of the road with Barrett bent over as if sick. The defendant motioned for the victim to stop. After he stopped, the defendant advised the victim that Barrett was ill and needed medical attention. While the defendant distracted the victim, Barrett walked behind the victim's truck, opened the driver's door, and "jerked" the victim from his pickup. Barrett then struck the victim with an object rendering him unconscious. The defendant and Barrett took the money from the victim's wallet, threw him in a roadside ditch, and drove away in the victim's pickup truck. The defendant and Barrett were arrested several days later. The victim's pickup was recovered in Nashville.
The victim, who was approximately sixty-eight years of age when the robbery occurred, was taken to a hospital. Eight stitches were needed to close the wound on his head. A criminal investigator for the Tennessee Highway Patrol went to the emergency room and presented an array of photographs to see if the victim could identify the culprit. He positively identified the defendant as the person who engaged him in conversation after he stopped to assist the defendant and Barrett. This identification occurred between 4:30 and 6:00 o'clock p.m.
At trial, the victim admitted that he did not know what Barrett had used when the latter struck him on his head. The victim testified that as a result of the blow, there had been a "whole lot of bleeding." He also could not identify the defendant. The record suggests that the defendant was clean-shaven when the robbery occurred, but he had facial hair at the time of the trial. Also, the victim's health had drastically deteriorated.
Barrett testified as a defense witness. He stated that he and the defendant had parted ways prior to the robbery. According to Barrett, he had met a man by the name of Paul Miller. He insisted that the second person that had been involved in the robbery was Miller, not the defendant.
The appellant contends that the evidence is insufficient to sustain a conviction because (a) the victim failed to make a courtroom identification of the appellant and (b) the State failed to prove that Barrett possessed a dangerous weapon in the course of the robbery.
A defendant challenging the sufficiency of the proof has the burden of illustrating to this Court why the evidence is insufficient to support the verdict returned by the trier of fact in his or her case. This Court will not disturb a verdict of guilt for lack of sufficient evidence unless the facts contained in the record and any inferences which may be drawn from the facts are insufficient, as a matter of law, for a rational trier of fact to find the defendant guilty beyond a reasonable doubt. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
When an accused challenges the sufficiency of the convicting evidence, we must review the evidence in the light most favorable to the prosecution in determining whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We do not reweigh or re-evaluate the evidence and are required to afford the State the strongest legitimate view of the proof contained in the record as well as all reasonable and legitimate inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
Questions concerning the credibility of witnesses, the weight and value to be given to the evidence, as well as factual issues raised by the evidence are resolved by the trier of fact, not this Court. Cabbage, 571 S.W.2d 832, 835. A guilty verdict rendered by the jury and approved by the trial judge accredits the testimony of the witnesses for the State, and a presumption of guilt replaces the presumption of innocence. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).
Before the defendant could be convicted in this case, the State of Tennessee was required to prove that he was the person who committed the crime in question. White v. State, 533 S.W.2d 735, 744 (Tenn.Crim.App. 1975). Whether the State carried its burden of proof that the defendant committed the crime in question was a question of fact for the determination of the jury after consideration of the proof submitted at the trial. State v. Crawford, 635 S.W.2d 704, 705 (Tenn.Crim.App. 1982).
In this case, the State introduced evidence that the victim made a positive identification of the defendant as the person who had signaled him to stop and had told him that Barrett was ill and needed medical attention. While it is true that the victim did not make an in-court identification, it appears that the defendant's physical appearance had changed since the day of the crime. Also, the victim's health had deteriorated following the robbery. A courtroom identification is not a prerequisite to a conviction for a criminal offense. The jury determined that the State had proven the defendant's identity beyond a reasonable doubt. There is sufficient evidence to support the jury's verdict.
To convict the defendant of robbery, the State must prove beyond a reasonable doubt that there was an intentional or knowing theft of property from the person of the victim by violence or putting the victim in fear. T.C.A. § 39-13-401(a). To convict of aggravated robbery, the State must prove beyond a reasonable doubt the elements of robbery and that the offense was "[a]ccomplished with a deadly weapon or by the display of any article used or fashioned to lead the victim to reasonably believe it to be a deadly weapon," or that the victim suffered serious bodily injury during the course of the robbery. T.C.A. § 39-13-402(a).
A "deadly weapon", as used in the robbery statutes, is defined in T.C.A. § 39-11-106(a)(5):
(A) A firearm or anything manifestly designed, made or adapted for the purpose of inflicting death or serious bodily injury; or
(B) Anything that in the manner of its use or intended use is capable of causing death or serious bodily injury;
The term "serious bodily injury", as used in the robbery statutes, is defined in T.C.A. § 39-11-106(a)(33) as:
(A) A substantial risk of death;
(B) Protracted unconsciousness;
(C) Extreme physical pain;
(D) Protracted or obvious disfigurement; or
(E) Protracted loss or substantial impairment of a function of a bodily member, organ or mental faculty.
The victim testified that he did not know what Barrett had used when he struck him on the head. Barrett, however, testified that he had hit the victim on the head with a crushed, crumpled beer can. We agree with the defendant that the State failed to establish that Barrett used a "deadly weapon" during the commission of this offense. The proof leaves us to speculate as to the type of weapon.
The defendant likewise contends that the State failed to establish that the victim suffered "serious bodily injury" during the robbery. We do not agree. Although admittedly this is a close issue, we find that there is sufficient evidence to support the verdict of the jury.
The defendant was rendered unconscious by a blow to the head with "something pretty hard" and experienced "a whole lot of bleeding." The victim's vehicle was taken and he was abandoned in a ditch along a county road to be discovered later by a man walking his dog. Eight stitches were required to close the wound on the victim's head. The record is unclear as to how long the victim remained along the roadside. However, he testified that it happened around midday and when the officer talked with him he was still on the emergency room bed at some time between 4:30 and 6:00 o'clock p.m. We think that these facts, coupled with the victim's age, are sufficient to support a finding of "serious bodily injury" by creating a substantial risk of death.
In his second issue the defendant complains of the trial court's allowance of an amendment to the indictment and denial of a continuance. The State filed a written motion on June 22, 1994, to amend the presentment. The motion stated in part: "Line fifteen (15) of the presentment in this cause cites 'T.C.A. 39-13-402' when in fact it should cite 'T.C.A. 39-13-403.'" The motion was heard on the morning of trial, before voir dire commenced. The trial court granted the State's motion over the vigorous objection of the defendant.
The factual allegations contained in the presentment alleged the offense of especially aggravated robbery, as set out in T.C.A. § 39-13-403. However, the presentment stated that the offense was in violation of T.C.A. § 39-13-402, which defines the offense of aggravated robbery. The amendment simply changed the code sections so that the proper section was alleged in the indictment.
Our rules allow an amendment to an indictment before jeopardy attaches if no additional or different offense is charged and no substantial rights of the defendant are prejudiced. See Tenn. R. Crim. P. 7(b). Obviously, jeopardy had not attached, and no additional or different offense was charged. Therefore, the only inquiry which we must examine is whether or not the defendant was prejudiced by the amendment.
It is well-established that the recitation of a code section in a charging instrument is mere surplusage. State v. Bowers, 673 S.W.2d 887, 888 (Tenn.Crim.App. 1984). Therefore, the inclusion of the wrong code section does not affect the validity of the charging instrument if the factual allegations allege the appropriate offense. Bowers, 673 S.W.2d at 888.
The record reflects that the motion to amend was made before jeopardy attached, that no additional or different offense was charged as a result of the amendment, and that the "substantial rights" of the defendant were not prejudiced. Therefore, the trial court did not abuse its discretion by granting the motion to amend the presentment or in denying a continuance.
The judgment of the trial court is affirmed.
______________________________ JOHN H. PEAY, Judge
CONCUR:
______________________________ JOE B. JONES, Presiding Judge
______________________________ JOE H. WALKER, III, Special Judge
DISSENTING OPINION
I respectfully dissent.
The crime committed by the appellant, Danny R. Morris, was despicable. I am sure that the jury, like myself, was enraged as the evidence unfolded. This atrocious crime was committed in the jury's home county by two inmates who escaped from a prison in an adjoining county. Morris and Barrett were much younger than the victim. They feigned illness and acted as if one of them needed assistance. When the elderly victim stopped to lend assistance, Morris and Barrett took advantage of the victim's act of kindness. Nevertheless, we as citizens must not lose sight of the fact that ours is a Nation of laws. These laws govern the conduct of every citizen. As this Court said in Hodges v. State, 491 S.W.2d 624, 626 (Tenn.Crim.App. 1972), cert. denied (Tenn. 1973): "[O]dious individuals are not governed by one law and the remaining citizens by another; all are protected by the same general law."
It has long been established that the prosecution must prove every element of a criminal offense beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). If the prosecution fails to establish one element of the offense beyond a reasonable doubt, the accused cannot be convicted of the offense. In this case, the evidence contained in the record is insufficient, as a matter of law, to support a conviction for aggravated robbery. The evidence will only support a conviction for simple robbery.
Before an accused can be convicted of robbery, the State of Tennessee must prove beyond a reasonable doubt that (a) there was an intentional or knowing theft of property, (b) from the person of the victim, and (c) by violence or putting the victim in fear. Tenn. Code Ann. § 39-13-401(a). In a prosecution for aggravated robbery, the State of Tennessee must prove beyond a reasonable doubt (a) the elements of robbery, (b) the offense was committed with a deadly weapon or the use of an article "used or fashioned to lead the victim to reasonably believe it to be a deadly weapon," or (c) the victim suffered serious bodily injury during the course of the robbery. Tenn. Code Ann. § 39-13-402(a).
The state failed to establish that Barrett used a "deadly weapon" during the commission of this offense. My colleagues agree with this assessment of the evidence. Thus, the only question is: did the state establish that the victim incurred "serious bodily injury" at the hands of Morris and Barrett?
The majority holds that there was sufficient evidence to establish the element of serious bodily injury by creating "a substantial risk of death." I am of the opinion that the evidence is insufficient, as a matter of law, to support this element of the offense.
The victim testified that the incident in question occurred "midday", which appears to mean noontime. It was established that the police officers interviewed the victim in the hospital emergency room between 4:30 p.m. and 6:30 p.m. The record is devoid of evidence as to what occurred during noon and 4:30 p.m.
The testimony of the victim reveals that he was found by a good Samaritan, "a man walking his dog." There is absolutely no evidence as to when the good Samaritan found the victim. In any event, the good Samaritan took the victim to his home and called an ambulance for the victim. The ambulance arrived and took the victim to a hospital in Dickson, Tennessee.
The good Samaritan was not called as a witness. The ambulance attendants were not called as witnesses. The doctor who attended the victim was not called as a witness. The medical records librarian was not called as a witness. Thus, there is a void of evidence concerning (1) when the ambulance arrived at the home of the good Samaritan, (2) how long the ambulance personnel treated the victim before placing him in the ambulance, (3) how long it took the ambulance to take the victim from Humphreys County to the hospital in Dickson County, (4) when the victim arrived at the hospital, (5) the condition of the victim when he arrived at the hospital, (6) the nature and extent of his injuries, and (7) how long the victim had been at the hospital before the police arrived to interview him. On the other hand, the record establishes that the victim was able to talk to the police officers, he was able to view the photographs presented to him, and he was able to select the photograph depicting Morris. The record also establishes that the victim was released from the hospital and went to his home the same day the incident in question occurred. In summary, the record does not establish that the laceration sustained by the victim caused the victim to incur "a substantial risk of death."
The evidence in this case will not support the remaining definitions of "serious bodily injury." The record does not establish how long the victim was unconscious. Thus, the evidence will not support a finding that the victim suffered a "protracted unconsciousness." Nor does the evidence support a finding of "extreme physical pain." The victim was not asked nor did he testify that the injury was painful. A laceration to a person's head does not equate to "extreme physical pain." The record is devoid of evidence that the victim suffered "a protracted or obvious disfigurement." A laceration that requires eight stitches cannot result in a "protracted or obvious disfigurement." Moreover, any residual scar will probably be covered by the victim's hair and will not be noticeable to others. Again, the record is devoid of evidence to establish that the victim suffered a "protracted loss or substantial impairment of a function of a bodily member, organ or mental faculty." A small laceration will certainly not cause such a condition.
It is an elementary principle of law that a criminal conviction cannot be predicated upon conjecture, guess, speculation, or a mere possibility that the accused may be guilty. Rucker v. State, 174 Tenn. 569, 572-73, 129 S.W.2d 208, 210 (1939); State v. Cooper, 736 S.W.2d 125, 129 (Tenn.Crim.App. 1987). Nor may this Court "speculate upon the guilt of one charged with the commission of a criminal offense." Clancy v. State, 521 S.W.2d 780, 783 (Tenn. 1975).
The responsibility for the void in the evidence rests squarely upon the state's shoulders. As previously indicated, there were several individuals who could have established that the victim sustained a serious bodily injury. The state opted not to call these individuals. Thus, the jury was required to engage in conjecture, guess, and speculation that the victim suffered a serious bodily injury. This Court should not perpetuate this speculation.
The record establishes that Morris is guilty of simple, not aggravated robbery. Based upon the evidence contained in the record, this Court should reduce the conviction from aggravated robbery to simple robbery.
_______________________________________ JOE B. JONES, PRESIDING JUDGE