APPELLATE COURT OPINIONS

A Carroll County jury convicted the appellant, Marion Lee Chapman, of one (1) count of driving under the influence of an intoxicant. The trial court sentenced the appellant to eleven (11) months and twenty-nine (29) days, suspended after serving ten (10) days in confinement. On appeal, the appellant argues that the trial court erred in denying his motion for a continuance on the day of trial. We hold that the appellant has waived this issue for failing to prepare an adequate record for this Court's review. In addition, we conclude that, based on the limited record before us, the trial court did not abuse its discretion in denying the motion for a continuance. Therefore, we affirm the judgment of the trial court.

I concur with Judge Woodall's lead opinion as to the defendant Johnson and would affirm in all respects. I disagree with Judge Smith that this court should reverse Johnson's aggravated robbery and attempted aggravated robbery convictions on a plain error basis for failure to instruct on the lesser offenses of robbery and attempted robbery. Johnson did not present the issue on appeal.  Five factors determine whether the failure to charge lesser included offenses qualifies as reversible, plain error:

1. The record must clearly establish what happened in the trial court;
2. a clear and unequivocal rule of law must have been breached;
3. a substantial right of the accused must have been adversely affected;
4. the accused did not waive the issue for tactical reasons; and
5. consideration of the error is necessary to do substantial justice.

Daniel Thomason appeals from the aggravated robbery conviction he received at a jury trial in the Davidson County Criminal Court. Thomason is serving an eight-year sentence in the Department of Correction for his crime. In this appeal, he challenges the sufficiency of the convicting evidence that he accomplished the robbery “by display of any article used or fashioned to lead the victim to reasonably believe it to be a deadly weapon.” Because the record before us is does not contain all of the relevant evidence presented at trial, we are precluded from reviewing the sufficiency of the evidence and therefore affirm.

Following a jury trial, a Knox County jury found the Defendants, Linnell Richmond and Shervon Johnson, guilty of aggravated robbery, attempted aggravated robbery and two counts of attempted first degree premeditated murder. Defendant Johnson was also convicted of the additional attempted aggravated robbery of Leonard Hill. The trial court sentenced Defendant Richmond to an effective sentence of twenty-two years for his convictions. Defendant Johnson was order to serve an effective sentence of seventy years for his convictions. The trial court further ordered that both Defendants serve their state sentences consecutively to a federal sentence arising out of the same situation and conduct as the state sentences. In this appeal as of right, the Defendants raise the following issues:

1) whether the evidence was sufficient to convict each Defendant of attempted first degree premeditated murder, attempted aggravated robbery and aggravated robbery; 2) whether the trial court erred in failing to instruct the jury on the natural and probable consequences rule; 3) whether the trial court erred in allowing the state to proceed under a theory of criminal responsibility against Defendant Richmond, when the indictment failed to charge him with criminal responsibility; 4) whether the trial court erred in failing to charge lesser-included offenses; 5) whether the trial court erred in failing to allow the victim, Mose Cuxart, to be impeached with false statements concerning his income tax returns; 6) whether the trial court erred in admitting photographs of Shannon Brown and Kevin Brown; 7) whether the trial court erred in amending the indictment for aggravated robbery; and 8) whether the trial court erred in ordering the Defendants’ state sentence to run consecutively to their federal sentence. After a thorough review of the evidence and the applicable law, a majority of the panel affirms each of Defendant Johnson’s convictions and sentences. A majority of the panel reverses and remands for a new trial Defendant Richmond’s convictions for aggravated robbery, attempted aggravated robbery, and attempted murder.

I concur fully in the lead opinion with respect to the attempted murder convictions of both defendants. I also concur fully with Judge Woodall’s opinion in all other respects save for the issue concerning the failure of the trial court to instruct the jury on the lesser-included offenses of robbery and attempted robbery to the aggravated robbery indictment and the attempted aggravated robbery indictment. For the reasons stated below I would find this failure to instruct with respect to these lesser-included offenses constituted reversible error. A reading of the recent cases of State v. Bowles, ___ S.W.3d ___(Tenn. 2001); and State v. Ely & Bowers, 48 S.W.3d 710 (Tenn. 2001); leads one to the inescapable conclusion that our high court has mandated that lesser-included offense instructions be given anytime the evidence is sufficient to support a conviction for these offenses.  This means that anytime the proof is sufficient for a conviction of the indicted offense, the proof will a fortiori be sufficient for a conviction of the lesser-included offenses. See Bowles ___ S.W.3d at ____. As a practical matter, this in turn means that it will almost always be error to fail to instruct the jury as to all lesser-included offenses of the indicted offense.1 Thus, the only real inquiry, in my opinion, in virtually all of the cases raising the lesser-included offense issue is whether the error in failing to instruct on the lesser offenses can be said to be harmless beyond a reasonable doubt.  It should be noted at the outset of this discussion that although defendant Richmond raised
on appeal the lesser-included offense issue, defendant Johnson did not. Nevertheless, pursuant to Tenn. R. Crim. P. 52(b) and the case of State v. Smith, 24 S.W.3d 274 (Tenn. 2000); I would find as to Johnson that the failure to instruct the jury on the lesser-included offenses of robbery and attempted robbery constitutes plain error. As such I would therefore grant relief on this issue to both defendants.