State of Tennessee v. Daniel Ray Styles

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs July 25, 2001

STATE OF TENNESSEE v. DANIEL RAY 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, aggravated assault, aggravated

robbery, 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 his case on the ground that his right to a speedy trial was violated;

(2) whether the trial court erred in allowing the State to amend the indictments; (3) whether the

indictment charging felony escape 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 regarding

Defendant’s convictions and sentences for aggravated robbery, felony escape, and aggravated

criminal trespassing. However, we reverse and dismiss Defendant’s convictions for aggravated

assault and theft as violative of constitutional prohibitions against double jeopardy.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed, in Part;

Reversed and Dismissed, in Part.

THOMAS T. WOODALL , J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR.,

and ROBERT W. WEDEMEYER , JJ., joined.

Susanna L. Thomas, Newport, Tennessee, for the appellant, Daniel Ray Styles.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Al

C. Schmutzer, Jr., District 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,

Defendant escaped 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-year relationship with

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 this

particular instance, however, Defendant’s visit was obviously unscheduled. After he pounded on

the door and was denied entrance, Defendant broke into the residence through a bedroom window.

Walking into the living room, he discovered the presence of a twenty-year-old male, Matthew

Means, and immediately began to interrogate him regarding his reason for being there and his

relationship with Brandi France. Means informed Defendant that this 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 talk privately. When they emerged

approximately ten minutes later, Defendant demanded the keys to Means’ truck. Means refused.

Defendant told Means to give him the keys or he would kill him, and Means refused again. At this

point, Means’ attention was distracted by something. When he turned to look at it, Defendant hit

him on the back of the head with a fire poker, knocking him unconscious. Defendant then picked

Means’ keys up off the floor and departed 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 concussion, receiving five staples in the back of his

head.

ANALYSIS

I. Right to a Speedy Trial

Defendant first contends that the trial court erred by refusing to dismiss his case on the

ground that he was denied his constitutional right to a speedy trial. Defendant argues that the failure

to try his case in a timely manner prejudiced 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. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), as the

proper method for determining whether a defendant has been denied his constitutional right to a

speedy trial. These four (4) factors include: (1) the length of the delay; (2) the reasons for the delay;

(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 factor is determinative in all cases, but the most

crucial inquiry is whether the delay prejudiced Defendant. Tillery v. State, 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

April 25, 2000. Thus, 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 longer “marks the point at which courts deem the delay unreasonable enough

to trigger the Barker inquiry”).

-2-

Secondly, concerning the reason for the delay, the trial court stated that it found nothing 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. Since fault for the

delay in trying this matter cannot be conclusively attributed to either Defendant or the State, we

conclude that this factor does not favor either party.

Regarding whether Defendant asserted his right to a speedy trial, the trial 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 Defendant first filed his motion in Circuit Court,

while his case was pending 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 right to a speedy trial was not asserted in the proper court, i.e., Circuit

Court, until the day of trial when Defendant made an oral motion to dismiss the indictments on the

ground that the State failed to provide him with such right. Moreover, the record does not contain

the motion for speedy trial filed while the case was pending in the General Sessions Court. For the

above reasons, this factor fails to support Defendant’s argument.

The last factor, which considers whether a defendant was prejudiced by the delay, similarly

fails to support Defendant’s contention. Defendant asserts that because the State delayed in taking

his case to trial, two defense witnesses died and this prejudiced his defense. Specifically, Defendant

argues that the deceased 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 provides no proof of what facts 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 from the delay.

Accordingly, we find that Defendant was not denied his constitutional right to a speedy trial.

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 escape,

respectively, without giving him proper notice. Defendant further contends that the requested

amendment was 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 are 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 agree.

-3-

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 felony escape to read that the

offenses occurred on September 17, 1997, rather than in July 1998. The indictments for the

remaining counts, charging aggravated burglary, 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

Court will alter such a ruling only where that discretion has been abused. 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 indictment, presentment 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 the defendant are thereby prejudiced, the court may permit

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 State v. 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. Badgett, 693 S.W.2d 917, 919 (Tenn. Crim. App. 1985) (amending the date in an

indictment does not charge a defendant with a new or an additional crime).

Defendant also contends that the amendment interfered with his right to a grand jury

indictment under Article I, section 14 of the Tennessee Constitution, because the grand jury never

considered whether the proof was sufficient to indict him for the acts allegedly occurring on the

amended offense date. However, because an amendment to correct an immaterial date in the

indictment does 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 Indictment

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 grand jury, but was

not signed by the District Attorney General.

Initially, we observe that Defendant’s entire argument concerning this 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 contention, this issue is waived. See Tenn. Ct. Crim. App. R. 10;

Tenn. R. App. P. 27(a).

-4-

In addition to Defendant’s failure to adequately support the issue, Rule 12(b)(2) of the

Tennessee Rules of Criminal Procedure further provides that objections of this nature should be

raised prior to trial:

Defenses and objections based on defects in the indictment, presentment or

information (other than that it fails to show jurisdiction in 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 after 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 alleged defect. Tenn. R. Crim. P. 12(f); see also Tenn.

Code Ann. § 40-13-207 (1997). We find no error in this ruling. State v. Nixon, 977 S.W.2d 119,

121 (Tenn. Crim. App. 1997) (included within the class of indictment defects which must be raised

prior to trial are defects that go to matters of form rather than substance, e.g., failure of the district

attorney general to sign the indictment). Defendant 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 court erred by “failing to require the State to elect

between aggravated 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

elements of aggravated robbery. The State responds that Defendant’s failure to support this

contention with argument, citation to proper authorities, or appropriate references to the record, has

effectively waived this issue. Notwithstanding waiver, the State argues that the record contains

sufficient proof to establish the elements for both aggravated assault and aggravated robbery as

charged by the indictment. Despite Defendant’s failure 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 defendant are found to affect the

substantial rights of that defendant, 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 whether an error

constitutes “plain error,” this Court set forth the following factors for consideration in State v.

Adkisson, 899 S.W.2d 626 (Tenn. Crim. App. 1994):

a) the record must clearly establish what occurred in the trial court;

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.’

-5-

Id. at 641-42. For the reasons following, our review of the record reveals that Defendant’s

convictions for aggravated assault and theft, in addition to his conviction for aggravated robbery,

constitute multiple convictions for a single criminal offense and thus violate constitutional

prohibitions against double jeopardy. Because such violations satisfy the factors outlined in

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

To recount, Defendant’s indictment alleges that he intentionally or knowingly caused bodily

injury to the victim by the use of a deadly weapon, which is aggravated assault. See Tenn. Code

Ann. § 39-13-101(a)(1), -102(a)(1)(B) (1997). Defendant was also indicted for obtaining property

from the person of the victim by use of violence 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), 39-14-103 (1997). Because the elements of these offenses may require proof of similar

facts, Defendant’s dual convictions for aggravated robbery and aggravated assault, as well as

aggravated robbery and theft, raise the double jeopardy concerns addressed herein.

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

the protections of Article I, section 10 of the Tennessee Constitution against 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 analysis 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 analysis of the two statutory provisions, as

provided in Blockburger v. United States: “[W]here the same act or transaction constitutes 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 requires 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), (causing bodily injury); and (2) that Defendant

used or displayed a deadly weapon. See Tenn. Code Ann. § 39-13-102(a) (1997). To obtain a

conviction for aggravated robbery as indicted, the State was required to prove that (1) Defendant

perpetrated an intentional or knowing theft of property from the person of the victim by violence;

and (2) that Defendant accomplished the theft with a deadly weapon. See Tenn. Code Ann. §§

39-13-401, -402(a)(1) (1997). The offense of aggravated robbery requires proof that Defendant

committed a theft of property, whereas aggravated assault does not. On the other hand, aggravated

-6-

assault, as alleged, requires proof of bodily injury to the victim, whereas aggravated robbery does

not. Therefore, strictly speaking, these offenses are not the “same” under a Blockburger analysis.

Conversely, analysis under the second prong of Denton indicates that dual convictions would

violate constitutional prohibitions against double jeopardy. The evidence used to prove each offense

is virtually identical. For aggravated assault, the State proved that Defendant intentionally or

knowingly assaulted 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 then took his keys and truck. For purposes of applying our robbery statute, the element

of “violence” requires evidence of “physical force unlawfully exercised as to damage, injure or

abuse.” State v. Fitz, 19 S.W.3d 213, 217 (Tenn. 2000). Thus, the offense of aggravated assault was

established by the same proof used to satisfy the violence element of the aggravated robbery offense.

The third step in the Denton analysis examines the number of victims and discrete 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 gaming and

larceny, and the conduct which led to the gaming charge was designed to facilitate the commission

of larceny, the gaming conviction could not stand); Cf. State v. Black, 524 S.W.2d 913 (Tenn. 1975)

(where defendant robbed victim at gunpoint and, afterward, stepped back and shot the victim in the

leg, the robbery was considered completed prior to infliction of the wound and two separate and

distinct offenses were committed, even though they occurred at substantially the same time and in

the course of a single criminal episode); Denton, 938 S.W.2d 373, 379 n.14 (“When the legislature

has made its intent clear that cumulative punishment is intended, 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

jeopardy] analysis under Black is pretermitted.”). In the case sub judice, the facts show that

Defendant demanded the victim’s keys twice, and was refused both times, prior to hitting the victim

in the head with a fire poker. Thus, it appears that Defendant assaulted the victim to further his

commission of the robbery, that is, to obtain possession of the keys to the victim’s vehicle, and that

these crimes were committed in the course of a single criminal episode by a defendant with one

objective: robbery.

The final step in a double jeopardy analysis requires us to examine the purposes of the

statutes underlying the respective offenses to determine whether they further common goals. We

observe that the purpose of the aggravated robbery statute, as applicable here, is to punish theft

accomplished by the use of a deadly weapon, and the purpose 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 relation to each other, we find

Defendant’s convictions for both aggravated robbery and aggravated assault violate the principles

-7-

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

essentially the same evidence supported both convictions, the offenses involved one victim, they

arose from a single criminal act and resulted from a single criminal intent. Moreover, the statutes

have similar purposes in that both offenses punish the accused who commits a crime against a person

while armed with a deadly weapon. The harm sought to be punished in aggravated assault with a

deadly weapon is encompassed in aggravated robbery committed with a deadly weapon, even though

aggravated robbery also involves a theft and aggravated assault does not. This conclusion is

consistent with 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 counts, the practice is not approved, and, certainly it must be

clear that the offenses are wholly separate and distinct . . . . The power of election

rests with the state, not the criminal, and the state should not split the transaction so

as to subject the accused to cumulative sentences for the same offense or for different

offenses involving 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 and the charges for 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 convicted of theft of property (a Toyota truck) valued at more than

$1,000 but less than $10,000, a Class D felony. See Tenn. 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 proved by evidence that Defendant obtained property from the person of the victim (specifically,

the keys to the victim’s Toyota truck) by use of violence and 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,” that is, that the provision for aggravated robbery requires proof of use of violence

and a deadly weapon which the provision for theft does not, convictions for both are prohibited in

the case sub judice. According to the double jeopardy provisions of the constitutions of both the

United States and Tennessee, a defendant may not be convicted of two offenses if one is a lesser-

included offense of another under circumstances such as those presented here. See Brown v. Ohio,

432 U.S. 161, 168, 97 S.Ct. 2221, 2226-27, 53 L.Ed.2d 187 (1977) (when one offense is classified

as a lesser-included of another, the lesser offense is the “same” for purposes of double jeopardy

-8-

analysis where conviction for the lesser offense requires no proof beyond that necessary to convict

for the greater offense). Case law, as well as the statutory elements for theft and aggravated robbery,

reveal that theft is a lesser-included offense of aggravated robbery. See State v. Timothy R. Bowles,

___ S.W.3d ___, No. M1997-00092-SC-R11-CD, 2001 WL 856575, (Tenn. July 31, 2001) (it is

uncontested that theft is a lesser-included offense of robbery (citing 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

convicted of aggravated robbery and theft of the same property, court reversed and dismissed the

conviction for theft as a lesser-included offense of aggravated robbery).

Since the same evidence, taking of the victim’s keys and truck, was used to prove both

offenses, factor two of the Denton analysis likewise supports dismissal of the theft conviction.

Although it may be argued that the aggravated robbery offense was completed when Defendant took

the victim’s keys, and this effectively severed 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 (Tenn. 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 convictions for theft and aggravated robbery the State argued that,

although the defendant beat the victim in order to take money and car keys from him, the defendant

did not decide to take the car until after the beating was concluded. This Court was unpersuaded by

the State’s argument. 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 both

robbery and theft, the jury must find that the defendant formed 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 in the case sub judice support a similar conclusion whereas Defendant clearly

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 robbery also fail to support multiple convictions in that they involve neither multiple

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

defendant completed robbery by taking keys, drugs, and money immediately before taking the car).

Lastly, concerning factor four, our supreme court has held that the statutory provisions concerning

robbery and larceny protected overlapping interests: both protected property while robbery protected

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 foregoing reasons, Defendant’s conviction and sentence for theft and aggravated

assault are reversed and dismissed as violative of state and federal constitutional protections against

-9-

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

convictions.

___________________________________

THOMAS T. WOODALL, JUDGE

-10-