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State v. Wilson8/2/2001
nted because the evidence showed that the Defendant and Christein intended to attack and rob the victim.
Especially aggravated robbery is defined in Tennessee Code Annotated section 39-13-403 as "robbery as defined in Section 39-13-401: (1) accomplished with a deadly weapon; and (2) where the victim suffers serious bodily injury." Robbery is defined in Tennessee Code Annotated section 39-13-401 as the "intentional or knowing theft of property from the person of another by violence or putting the person in fear." Tennessee Code Annotated section 39-14-103 provides that "(a) person commits theft of property if, with intent to deprive the owner of property, the person knowingly obtains or exercises control over the property without the owner's effective consent." In addition, " person is criminally responsible for the facilitation of a felony if, knowing that another intends to commit a specific felony, . . . the person knowingly furnishes substantial assistance in the commission of the felony." Tenn. Code Ann. § 39-11-403(a) (1997).
Our supreme court has held that "virtually every time one is charged with a felony by way of criminal responsibility for the conduct of another, facilitation of the felony would be a lesser-included offense." See State v. Fowler, 23 S.W.3d 285, 288 (Tenn. 2000); Burns, 6 S.W.3d at 470. The Defendant was charged and tried under the theory of criminal responsibility for the conduct of his co-defendant, and we therefore hold that facilitation of especially aggravated robbery is a lesser-included offense of especially aggravated robbery, in this case, under part (c) of the Burns test. Burns, 6 S.W3d at 466-67.
Next, we examine whether the evidence presented at trial justified a jury instruction on facilitation of especially aggravated robbery. Id. at 469. This inquiry has two parts. First, we must determine "whether any evidence exists that reasonable minds could accept as to the lesser-included offense." Id. In making this determination, we must view the evidence "in the light most favorable to the existence of the lesser-included offense without making any judgments on the credibility of such evidence." Id. Secondly, this Court "must determine if the evidence, viewed in this light, is legally sufficient to support a conviction for the lesser-included offense." Id. If this Court finds there is error, we must determine whether the erroneous failure to instruct on the lesser-included offense was harmless beyond a reasonable doubt. Id.
Reviewing the evidence in light most favorable to the existence of facilitation of especially aggravated robbery without making any judgments on the credibility of the evidence, we note that the Defendant testified that, while he knew Christein intended to rob the victim, he never had such an intent. The Defendant admitted to purchasing the gas that made it possible for the victim and Ms. Bolling to drive Defendant and Christein to Steele Creek Park. However, in the statement Defendant provided to Detective Smeltzer, the Defendant stated that his only purpose in going to Steele Creek Park was to get the marijuana Christein said he had hidden in the park. The Defendant testified that he did not take any of the money that Christein took from the victim's wallet. The Defendant also testified that he stabbed the victim in an attempt to get the victim off of him. We hold that a jury could accept this evidence and find that the Defendant did not have the intent to rob the victim, but knowingly furnished substantial assistance in the commission of the robbery. Therefore, the trial court erred by not charging facilitation of especially aggravated robbery.
We further find that the failure to charge facilitation o
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