State of Tennessee v. Rick Braden

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs January 9, 2007
STATE OF TENNESSEE v. RICK BRADEN
Direct Appeal from the Criminal Court for Shelby County
No. 05-02051 James C. Beasley, Jr., Judge
No. W2006-00377-CCA-R3-CD - Filed May 18, 2007
The defendant, Rick Braden, was convicted by a Shelby County jury of two counts of aggravated
robbery, and he received concurrent nine-year sentences. On appeal, he argues that (1) the trial court
erred in not allowing him to introduce the guilty pleas of two named co-defendants, (2) the evidence
is insufficient to sustain his convictions, and (3) the trial court erred in failing to instruct the jury on
the lesser-included offense of facilitation. Following our review of the record and the parties’ briefs,
we conclude that the trial court erred in failing to charge the lesser-included offense of facilitation,
and therefore, reverse the judgments of the trial court and remand for a new trial.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed and
Remanded
J.C. MCLIN , J., delivered the opinion of the court, in which NORMA MCGEE OGLE, J., joined and
DAVID G. HAYES, J., filed a separate concurring opinion.
Lauren Pasley-Ward, Memphis, Tennessee, for the appellant, Rick Braden.
Michael E. Moore, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Paul Hagerman and Valarie Smith, Assistant
District Attorneys General, for the appellee, State of Tennessee.
OPINION
I. PROCEDURAL AND FACTUAL BACKGROUND
In March 2005, the defendant and three co-defendants were indicted on two counts of
aggravated robbery. The defendant’s case was severed from his co-defendants and a jury trial
commenced on November 30, 2005. At trial, Amie Burgess testified that on September 27, 2004,
she went to the Mid-South Fair and then to a restaurant, Mélange, in the Cooper-Young area of
Midtown Memphis. Ms. Burgess and a friend, Samantha Birdsong, left the restaurant and got in Ms.
Burgess’ car where they were approached on the driver’s side by a tall black male who asked how
they were doing. As the man was speaking to them, a car pulled up behind her car and blocked her
from leaving. Ms. Burgess then noticed someone run up to the passenger side of the car and grab
Ms. Birdsong’s purse. Ms. Birdsong yelled, jumped out of the car, and chased after the purse-
snatcher. As Ms. Burgess was watching Ms. Birdsong, another black male reached into the driver’s
side window and tried to grab her purse. Ms. Burgess struggled with the man, but he eventually got
the purse away from her. The man then reached into the car and grabbed the keys out of the ignition.
Ms. Burgess reached for her spare keys that were under the seat and the man also tried to grab those
keys, but Ms. Burgess struggled and he let go of the keys. Ms. Burgess recalled hearing two
gunshots at some point during the altercation. She said that the gunshots came from somewhere
behind her.
On cross-examination, Ms. Burgess stated that she and Ms. Birdsong left Mélange sometime
around 11:30 p.m. She explained that they went to her car to wait on another friend, Michelle, and
had sat in the car for three or four minutes before they were approached. Ms. Burgess said that she
could not identify any of the individuals involved in the robberies. Ms. Burgess explained that she
heard the first gunshot after Ms. Birdsong had gotten out of the car and chased the purse-snatcher.
Ms. Burgess clarified that she heard a noise that sounded like a firecracker while she was struggling
for her purse, and then heard the noise a second time at which time she figured out it was a gunshot.
When she heard the second shot, Ms. Burgess noticed that Ms. Birdsong fell to the ground outside
the passenger’s door, but she did not see anyone shooting.
Samantha Birdsong testified that on the evening of September 27, 2004, she met some friends
at Mélange, and when it was time to leave, walked with Ms. Burgess to her car. She and Ms.
Burgess were sitting in the car with the windows down “gossiping” when a tall black male
approached Ms. Burgess’ window and “asked what [they] were doing and if [they] were having a
good time.” Ms. Birdsong recalled that a black female then approached the passenger side window,
reached in, and grabbed her purse. Ms. Birdsong got out of the car and chased after the woman. The
woman ran and got into a car that was parked behind Ms. Burgess’ car, blocking the car in a “T”
fashion. Ms. Birdsong saw that there were two other people in the car in addition to the purse-
snatcher. There was a heavy, black man in the backseat and another man in the driver’s seat, neither
of whom were the same man who initially approached Ms. Burgess’ car.
Ms. Birdsong testified that she reached through the open back window of the car after the
purse-snatcher, and the two got into an altercation over the purse. While they were scuffling, Ms.
Birdsong heard a gunshot behind her and to the right. After the first gunshot, the woman stuck a gun
in Ms. Birdsong’s face, and Ms. Birdsong walked backward toward Ms. Burgess’ car at which point
she was shot at two times. She got into Ms. Burgess’ car and when the other car took off, she got
out and tried to get its license plate number.
On cross-examination, Ms. Birdsong testified that she was able to identify the woman who
stole her purse, but she could not identify any of the other individuals involved in the robbery. Ms.
Birdsong recalled that the car the robbers were in looked like an older, four-door Buick. Ms.
Birdsong said that she was sure the first noise she heard was a gunshot because she was raised
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around guns. Ms. Birdsong said she noticed that the man who initially approached Ms. Burgess’ car
was standing behind her and to the right as she ran after the purse-snatcher.
On re-direct examination, Ms. Birdsong stated that when the first gunshot was fired, the man
who had originally approached the car was the only person in the parking lot. Ms. Birdsong admitted
that she was only able to identify the woman from the photographic arrays she was shown, but in the
courtroom she was able to point out the defendant as the person who initially approached them.
Randall Jackson testified that he has known the defendant since childhood. On the night of
September 27, 2004, he received a call from a number he did not recognize so he did not answer the
phone. Mr. Jackson called the number back, and Adrian Isabell, “Black,” answered the phone and
then handed it to the defendant. The defendant told Mr. Jackson that “he had just came off a
mission.” Mr. Jackson said that he did not know what the defendant meant exactly, but he figured
that because the defendant was with “Black” they had probably robbed someone. From his
conversation with the defendant, Mr. Jackson believed that the cell phone was stolen during the
“mission.” On cross-examination, Mr. Jackson said that he did not know for sure whether the
defendant had robbed someone; he just knew that “Black” was known for robbing people and the
defendant was with “Black.”
Steven Williams testified that he was charged with the aggravated robberies of Amie Burgess
and Samantha Birdsong and was currently incarcerated. On September 27, 2004, Mr. Williams was
riding around in a gray Buick Century with Adrian Isabell. The defendant and Shaneka Brownlee,
“Mimi,” were also in the car. On that evening, Mr. Isabell, the defendant, and Mimi picked Mr.
Williams up and they went joy-riding in the area of the MidSouth Fair. Mr. Williams testified that
they were drinking alcohol and looking for marijuana.
Mr. Williams testified that later that night, Mr. Isabell pulled his car up behind two ladies
sitting in a car in the Cooper-Young area. The ladies had their car windows down, and the defendant
and Mimi got out and went to talk to them. A few minutes later, Mr. Williams saw the defendant
and Mimi running back to the car with purses. A lady was chasing Mimi, Mimi got in the car, and
the lady and Mimi fought over the purse. Mimi then pulled a gun and put it in the lady’s face, and
Mr. Williams heard shots.
Mr. Williams said that he thought Mimi had shot the lady, but then he noticed that no “fire”
had came from Mimi’s gun. When Mr. Williams looked toward the ladies’ car, he saw the defendant
standing behind the lady with fire coming out of his gun. Mr. Williams said that he was sitting in
the backseat of the car the entire time. Mr. Williams noted that Mr. Isabell got out of the car at some
point and went toward the ladies’ car. After shooting at the lady, the defendant walked toward Mr.
Isabell’s car, raised his gun in the air, and shot. Mr. Williams said he did not know the defendant
had a gun until he saw him shoot it. After the defendant fired the shots, he jumped in the car, Mimi
closed the door, and they left the scene. As they were driving, the victim’s cell phone began to ring,
and Mimi and the defendant would both answer it and say things like, “How you going to get us.
You don’t even know me.” Mr. Williams could tell the caller was the victim. Mr. Isabell eventually
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got the cell phone and “busted” it in the street. Mr. Williams said that he thought the defendant
received $80 or $100 from the robbery proceeds. On cross-examination, Mr. Williams testified that
he thought the defendant and Mimi might have approached the ladies to see if they had marijuana.
Mr. Williams stated that he saw Mr. Isabell walk about halfway to the ladies’ car, but never saw him
go all the way to it.
Sergeant Matt Whittington of the Memphis Police Department testified that upon finding out
a cell phone had been stolen during the robbery he put a trace on the phone and recovered some
phone calls that were made shortly after the robbery. Sergeant Whittington said that over the course
of his investigation he developed the defendant as a suspect. The defendant was brought in for
questioning on September 30, 2004, during which he gave a statement admitting to being part of the
robberies of Ms. Burgess and Ms. Birdsong. In his statement, the defendant said,
I was at my house at 1724 Norfolk and Adrian [Isabell] and Mimi picked me
up in Adrian’s Buick Century. We went to pick up Steve at his house on Mallory,
and Adrian said that we were going to the fair to see if we can run across some
money down there.
We started to ride around the fairgrounds looking for some money. Adrian
and I saw some white girls and Adrian parked behind the car behind their car
blocking them in. Adrian told me get out of the car, and I went to the girl’s car to
talk to them.
While I was talking to them, Mimi ran up on the passenger side of the car and
reached through the window to get the purse. The girls got out of their car fought and
chased Mimi back to Adrian’s car.
Adrian got out[,] went to the girl’s car and reached through the driver’s
window and got the purse. Adrian went to the girl’s car and took the keys out of the
car. Adrian ran back to his car and the girls fought with Adrian.
Steve fired a shot in the air and the girls went back to their car. Adrian got
into his car and we all left. We went towards my house on Norfolk and Mimi and
Adrian were going through the girl’s purses.
Mimi counted the money and we all got $25 each. By now I used the girl’s
red cell phone and called Randy Jackson on his cell phone at No. 628-5399. Randy
didn’t answer the phone. Randy called me back about one minute later. I told him
that I was heading to the house.
Mimi answered the girl’s red cell phone and spoke for a second with
someone. Adrian threw the phone out at Gaither and Margery in the middle of the
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street. Adrian dropped me off at Randy’s house and I talked with him for a minute.
Adrian then dropped me off at my house.
The defendant told Sergeant Whittington that he participated in the robberies because he
needed money. Sergeant Whittington stated that the defendant was the tallest of the four individuals
involved in the robberies.
The defendant did not testify at trial or offer any evidence. Following the conclusion of the
proof, the jury returned a verdict of guilty to both counts of aggravated robbery. A sentencing
hearing was held, and the defendant was sentenced to nine years on each conviction to be served
concurrently.
II. ANALYSIS
The defendant raises three issues on appeal. He argues that (1) the trial court erred in not
allowing him to introduce the guilty pleas of two named co-defendants, (2) the evidence is
insufficient to sustain his convictions, and (3)the trial court erred in failing to instruct the jury on the
lesser-included offense of facilitation.
Co-defendants’ Guilty Pleas
The defendant first argues that the trial court erred in not allowing him to introduce the guilty
pleas of Adrian Isabell and Shaneka Brownlee, two of his co-defendants, at trial. Prior to trial, the
state made a motion in limine to preclude the defendant from calling the clerk of the court to testify
that both Mr. Isabell and Ms. Brownlee pled guilty to aggravated robbery. The trial court agreed,
ruling that such evidence was not relevant to any issue at the defendant’s trial. On appeal, the
defendant asserts that such evidence was relevant because it “lends credence to the notion that this
other male was the person who exited the vehicle and likely fired the gun into the air,” which would
have allowed him to argue that he was only guilty of facilitation.
When viewing a claim regarding the trial court’s exclusion of evidence on the grounds of
irrelevance, this court will not disturb the decision of the trial court absent an abuse of discretion.
See State v. Dubose, 953 S.W.2d 649, 652 (Tenn. 1997). Evidence is relevant if it has “any tendency
to make the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401. Even relevant
evidence, however, may be excluded “if its probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.” Id. 403.
Upon review, we conclude that the trial court did not abuse its discretion in excluding
testimony regarding the co-defendants’ pleas on the basis of irrelevance. All the evidence presented
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at trial indicated that four individuals were criminally responsible for the robberies.1 The defendant
initiated the robberies by approaching the women and engaging them in conversation, both women’s
purses were snatched, and at some point gunfire ensued. While there were some discrepancies
regarding the specific actions of the various perpetrators, that two of the co-defendants chose to pled
guilty rather than go to trial does not have any bearing on any fact pertaining to the defendant’s guilt
or innocence. In addition, the trial court could have precluded evidence of the co-defendants’ pleas
based on the likelihood that such evidence would confuse the issues and potentially mislead the jury.
See id. The trial court did not abuse its discretion.
Sufficiency
The defendant challenges the sufficiency of the convicting evidence. We begin our review
by reiterating the well-established rule that once a jury finds a defendant guilty, his or her
presumption of innocence is removed and replaced with a presumption of guilt. State v. Evans, 838
S.W.2d 185, 191 (Tenn. 1992). Therefore, on appeal, the convicted defendant has the burden of
demonstrating to this court why the evidence will not support the jury’s verdict. State v. Carruthers,
35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). To meet
this burden, the defendant must establish that no “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
(1979); State v. Evans, 108 S.W.3d 231, 236 (Tenn. 2003); see Tenn. R. App. P. 13(e). In contrast,
the jury’s verdict approved by the trial judge accredits the state’s witnesses and resolves all conflicts
in favor of the state. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). The state is entitled to the
strongest legitimate view of the evidence and all reasonable inferences which may be drawn from
that evidence. Carruthers, 35 S.W.3d at 558. Questions concerning the credibility of the witnesses,
conflicts in trial testimony, the weight and value to be given the evidence, and all factual issues
raised by the evidence are resolved by the trier of fact and not this court. State v. Bland, 958 S.W.2d
651, 659 (Tenn. 1997). We do not attempt to re-weigh or re-evaluate the evidence. Rice, 184
S.W.3d at 662. Likewise, we do not replace the jury’s inferences drawn from the circumstantial
evidence with our own inferences. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002). These rules are
applicable to findings of guilt predicated upon direct evidence, circumstantial evidence, or a
combination of both direct and circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-
93 (Tenn. Crim. App. 1999).
“Robbery is the intentional or knowing theft of property from the person of another by
violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401(a). The offense becomes
aggravated robbery when it is accomplished with a deadly weapon or by displaying an article which
is used to cause the victim to reasonably believe it is a deadly weapon. Id. § 39-13-402(a)(1).
Again, a person is criminally responsible for the conduct of another if, “[a]cting with intent to
1
“A person is criminally responsible as a party to an offense if the offense is committed by the person’s own
conduct, by the conduct of another for which the person is criminally responsible, or by both.” Tenn. Code Ann. §
39-11-401(a). One is criminally responsible for an offense committed by another when, “[a]cting with intent to promote
or assist the commission of the offense, or to benefit in the proceeds or results of the offense, the person solicits, directs,
aids, or attempts to aid another person to commit the offense.” Id. § 39-11-402(2).
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promote or assist the commission of the offense, or to benefit in the proceeds or results of the
offense, the person solicits, directs, aids, or attempts to aid another person to commit the offense[.]”
Id. § 39-11-402(2).
The evidence at trial showed that the defendant approached Ms. Burgess’ car and started a
conversation with Ms. Burgess and Ms. Birdsong. While the defendant was talking to the women,
Ms. Brownlee ran up to the women’s car and grabbed Ms. Birdsong’s purse which held money and
a cell phone. Ms. Birdsong chased Ms. Brownlee, during which, either the defendant or another
perpetrator grabbed Ms. Burgess’ purse and car keys. At some point during the altercation, two or
three gunshots were fired. The four perpetrators left the scene and divided up the proceeds from the
robberies. Randall Jackson testified that the defendant called him from the stolen cell phone and
said that he had been “on a mission,” which Mr. Jackson interpreted as a robbery. Steven Williams,
a co-defendant, testified that the defendant was involved in the robbery, and the defendant and Ms.
Brownlee were the ones who grabbed the purses from the two women. Mr. Williams also testified
that when he heard gunshots he looked toward the victims’ car and saw the defendant firing a gun.
Further proof showed that the defendant gave a statement to Sergeant Whittington wherein he
admitted that he and three other people participated in the robberies. The defendant admitted that
they stole two purses, car keys, a cell phone, and cash. He told Sergeant Whittington that he received
twenty-five dollars from the proceeds, and that he participated because he needed money. We note
that the jury assessed the credibility of the witnesses and resolved all conflicts in their testimony.
In the light most favorable to the state, the evidence was sufficient to find the defendant guilty of two
counts of aggravated robbery.
Facilitation Instruction
The defendant lastly argues that the trial court erred in failing to instruct the jury on
facilitation as a lesser-included offense of aggravated robbery. Specifically, the defendant asserts
that the state’s proof was riddled with inconsistencies, particularly in regard to whether he fired a
weapon and whether he was the one who snatched Ms. Burgess’ purse. The record reflects that the
defendant requested that the trial court instruct the jury on facilitation. The trial court denied the
defendant’s request, stating:
I have a question about facilitation. The law on criminal responsibility has
been that if the charge of criminal responsibility is charged and frankly if there are
co-defendants, that facilitation of a felony should be charged but also part of the
Burns test is that could a reasonable jury in reviewing the facts of the case find based
upon those facts the offense of facilitation and is there a valid basis for that and could
that conviction stand based on the proof if a jury were to return a verdict of that.
I have a question in my mind frankly about the crime of facilitation in this
particular case. Even though I think criminal responsibility should be charged based
on the proof that I’ve heard, I do not see how a jury could reasonably find the crime
of facilitation. Facilitation specifically requires, “That the defendant knew that
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another person intended to commit the specific felony of . . .”, in this case “. . .
aggravated robbery, but did not have the intent to promote or assist the commission
of the offense or to benefit in the proceeds or results of the offense, and that the
defendant furnished substantial assistance to that person in the commission of the
felony.”
Well, the proof that we have before us is that [the defendant] not only knew
that it was going to happen but participated in the happening, received proceeds from
it happening, gave a reason why he participated that he needed money, and then
there’s been testimony, notwithstanding his statement, but there’s been testimony
[from] other witnesses that he possessed a gun, that he fired the gun. I just do not see
how a reasonable jury under those circumstances and those facts could find the crime
of facilitation, namely, that [the defendant] knew something was going to happen, but
he didn’t really -- had no intent to assist or promote the commission of the offense.
Based on the proof that’s been presented, I don’t think a jury could find that
based on the law as I understand it to be, and to I -- I at this point don’t intend to
charge facilitation unless you can tell me some good reason why I should.
According to State v. Burns, 6 S.W.3d 453 (Tenn. 1999), an offense is considered lesser-
included of a greater offense if:
(a) all of its statutory elements are included within the statutory elements of the
offense charged; or
(b) it fails to meet the definition in part (a) only in the respect that it contains a
statutory element or elements establishing
(1) a different mental state indicating a lesser kind of culpability;
and/or
(2) a less serious harm or risk of harm to the same person, property or
public interest; or
(c) it consists of
(1) facilitation of the offense charged or of an offense that otherwise
meets the definition of lesser-included offense in part (a) or (b); or
(2) an attempt to commit the offense charged or an offense that
otherwise meets the definition of lesser-included offense in part (a)
or (b); or
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(3) solicitation to commit the offense charged or an offense that
otherwise meets the definition of lesser-included offense in part (a)
or (b).
Id. at 466-67. Whether instruction on a lesser-included offense should be given hinges upon whether
the trial court, viewing the evidence most favorably to the existence of the lesser-included offense,
concludes that (1) evidence exists that reasonable minds could accept the lesser-included offense,
and (2) that the evidence “is legally sufficient to support a conviction for the lesser-included
offense.” Id. at 469. The failure to instruct the jury on lesser-included offenses requires a reversal
unless the reviewing court determines that the error was harmless beyond a reasonable doubt. See
State v. Ely, 48 S.W.3d 710, 727 (Tenn. 2001). Upon review, this court must determine “(1) whether
an offense is a lesser-included offense; (2) whether the evidence supports a lesser-included offense
instruction; and (3) whether an instructional error is harmless.” State v. Allen, 69 S.W.3d 181, 187
(Tenn. 2002). The standard for an appellate court’s review of the trial court’s charge to the jury
regarding lesser-included offenses is de novo with no presumption of correctness. State v. Moore,
77 S.W.3d 132, 134 (Tenn. 2002).
Part (c)(1) of the Burns test clearly designates facilitation a lesser-included offense of the
charged offense. Burns, 6 S.W.3d at 467. Thus, facilitation is a lesser-included offense of
aggravated robbery. Having determined that facilitation is a lesser-included offense, we must next
determine whether the evidence in this case warranted an instruction on facilitation.
Tennessee Code Annotated section 39-11-403(a) provides that “[a] person is criminally
responsible for the facilitation of a felony, if, knowing that another intends to commit a specific
felony, but without the intent required for criminal responsibility under § 39-11-402(2), the person
knowingly furnishes substantial assistance in the commission of the felony.” Criminal responsibility
requires “ the intent to promote or assist the commission of the offense, or to benefit in the proceeds
or results of the offense.” Id. § 39-11-402(2). Notably, facilitation requires the lack of criminal
responsibility intent.
In the light most favorable to the defendant, we conclude that evidence exists that reasonable
minds could accept as to the lesser-included offense of facilitation, and the evidence was legally
sufficient to support a conviction for facilitation of aggravated robbery. In his statement to the
police, the defendant admitted to talking to the women but said that his cohorts were responsible for
grabbing the purses and firing a gun. At trial, the witnesses provided inconsistent testimony as to
the defendant’s actual involvement. Indeed there was some evidence presented that the defendant’s
intent in initially approaching the women might have been to look for marijuana. Sergeant
Whittington testified that the defendant said that he participated in the robberies because he needed
money; however, the jury could have chosen not to believe all or part of the defendant’s statement.
Viewing the evidence liberally in favor of the existence of the lesser-included offense, we conclude
that a jury could have found that the defendant’s actions were those of a facilitator. Thus, it was
error for the trial court to not provide an instruction on facilitation.
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Our next inquiry is to determine whether the error in failing to charge facilitation was
harmless beyond a reasonable doubt: that is, whether it appears beyond a reasonable doubt that the
error did not affect the outcome of the trial. Allen, 69 S.W.3d at 191. In making this determination,
this court must “conduct a thorough examination of the record, including the evidence presented at
trial, the defendant’s theory of defense, and the verdict returned by the jury.” Id. at 191. The jury
was instructed on several lesser-included offenses and criminal responsibility for the conduct of
another; however, we have no way of knowing whether the jury concluded that the defendant was
a principal actor or criminally responsibility for the actions of his cohorts. If the jury was convinced
by the proof that an aggravated robbery indeed occurred, then it would either have to convict the
defendant of aggravated robbery or acquit him entirely. The jury was given no option to convict the
defendant as a participant who acted on behalf of his cohorts, but who did not intend to assist in
actually robbing the victims. While we have previously determined that the proof is sufficient to
support the defendant’s aggravated robbery convictions, the proof in this case could also support the
defendant’s theory that he was a facilitator in the robberies. We simply cannot hold beyond a
reasonable doubt that the jury would not have convicted the defendant of facilitation on one or both
of the aggravated robbery charges had it been given that option. Therefore, we cannot conclude that
the error was harmless, and accordingly, we reverse the judgments of the trial court.
III. CONCLUSION
Based on the foregoing, we reverse the judgments of the Shelby County Criminal Court and
remand for a new trial.
_______________________________
J.C. McLIN, JUDGE
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