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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE
September 26, 2006 Session STATE OF TENNESSEE v. ANTONIO GEORGE
Direct Appeal from the Criminal Court for McMinn County No. 04-028 R. Steven Bebb, Judge

No. E2005-02013-CCA-R3-CD - Filed November 20, 2006

The defendant, Antonio George, was convicted of carjacking, a Class B felony, and sentenced as a Range I, standard offender to eight years in the Department of Correction. On appeal, he argues that (1) the evidence is insufficient to support his conviction; (2) the trial court erred in excusing a prospective juror who had a pending criminal case; (3) the trial court erred in restricting the crossexamination of the lead investigating officer; (4) the trial court erred in failing to charge the lesserincluded offenses of theft and robbery; and (5) the trial court erred by not giving a curative jury instruction regarding a comment made by the prosecutor. Following our review, we reverse the judgment of the trial court and dismiss the charge against the defendant. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed and Dismissed ALAN E. GLENN , J., delivered the opinion of the court, in which NORMA MCGEE OGLE and J.C. MCLIN , JJ., joined. Randy G. Rogers, Athens, Tennessee, for the appellant, Antonio George. Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; Jerry N. Estes, District Attorney General; and Wylie Richardson, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION FACTS On December 16, 2003, the McMinn County Grand Jury indicted the defendant and two codefendants, Aaron Davis and Antwon Cook, for carjacking as a result of their taking a motor vehicle from Michelle Biggam in November 2003.

At the January 13, 2005, trial of the defendant and codefendant Davis, the victim, Michelle Biggam, testified that in November 2003 she was dating Jamichael Smith. On the evening of November 13, 2003, she went with Smith to Eric Brown's residence in Athens and waited in Smith's car, with the engine running, while he went inside. As she was sitting in the passenger's seat, a man opened the car door, pointed a gun toward her face, and pulled her out by the arm, saying, "Bitch, get out." The man then threw her over a small brick wall, and she ran to the front door of the house and knocked because the door was locked. As Smith let her inside, Biggam told him what had happened and he called the police. She said that the perpetrator was wearing a black, hooded sweater and that he was an African-American, but she could not "describe exactly what he looked like in detail." Asked if the perpetrator had been alone, Biggam said, "When he pulled me out it's like I just felt other people there next to me, but I couldn't tell you that I actually looked over and saw them, but I just felt them there." Jamichael Smith testified that he had only been inside Brown's house for five or ten minutes when he heard a loud noise, looked out the kitchen window, and saw two men getting in his car, a 1983 custom-painted, electric green Buick Regal. He said he had left the car running with the parking lights and windshield wipers on. He saw one man get in on the driver's side and a second man get in on the passenger's side. Biggam banged on the door and, as he let her inside, she told him, "They pulled a gun on me and they are taking your car." Smith said he immediately called 9-11. Smith identified photographs of the interior of his car depicting where his CD player had been "ripped out" and his work identification card lying on the seat. He denied that he had any clothing or ski masks in the backseat of the car. Officer Steven Thomas of the Athens Police Department testified that on November 13, 2003, he responded to the carjacking call, which included a description of the car and the address from where the crime had been reported. According to the call he received, the carjacked vehicle had last been seen traveling toward Decatur Pike on Howard Street. Within a matter of minutes, Officer Thomas saw the vehicle at the intersection of Congress Parkway and Decatur Pike, pulled in behind it, and activated his blue lights. After the vehicle "took off through the red light at the intersection," Officer Thomas turned on his siren and pursued the vehicle for about forty-five minutes. A state trooper tried to stop the vehicle, but the driver rammed the vehicle into the back of the trooper's car. Officer Thomas pulled his car to the right to prevent the vehicle from going around the trooper, and the driver then rammed the vehicle car into Thomas' car. The driver and two passengers "started bailing out of the car before it even stopped." According to Officer Thomas, the driver "went out the driver's side window, and then the rear passenger went out the same window right after him, and then the front right passenger went out the passenger side door and they all began running." Officer Thomas apprehended one of the passengers whom he identified as codefendant Davis. He said the defendant was the passenger in the backseat and was apprehended in a creek bed about fifteen to twenty minutes later. Officer Thomas said he got "a pretty clear view" of the defendant because "as they would hit the trooper's car [the defendant's] head would jerk and I could see him look around at me as they were hitting the trooper's car."

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Officer Thomas said ski masks and gloves were found inside the vehicle, and a Taser gun was found about four or five feet from the driver's side of the vehicle. Officer Thomas subsequently turned the seized evidence over to Detective Patrick Upton. He identified photographs of the vehicle depicting the front console where the radio had been pulled out and the seat containing various items, including the work identification card of Jamichael Smith, as well as photographs of two ski masks and work gloves found in the rear of the vehicle. On cross-examination, Officer Thomas said that codefendant Cook was the driver of the vehicle and acknowledged that no weapon was found in the vehicle. Investigator Patrick Upton of the Athens Police Department testified that he investigated the carjacking and identified the black ski masks, gloves, and Security Plus Taser gun given to him by Officer Thomas on the night of the incident. He acknowledged that none of the items were analyzed or fingerprinted. The defendant did not testify or offer any proof in his behalf. ANALYSIS I. Sufficiency of the Evidence The defendant argues that the evidence is insufficient to support his conviction for carjacking, saying that the evidence was circumstantial and that he was never identified as one of the perpetrators. The State counters that the evidence is sufficient to support the jury's conclusion that the defendant participated in the carjacking. Because a jury conviction removes the presumption of innocence with which a defendant is initially cloaked and replaces it with one of guilt, on appeal a convicted defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Thus, we consider "whether, after viewing the evidence in the light most favorable to the prosecution, 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, 2789 (1979); see also Tenn. R. App. P. 13(e) ("Findings of guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt."); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All questions involving the credibility of witnesses, the weight and value to be given the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). "A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the State." State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme court stated the rationale for this rule: This well-settled rule rests on a sound foundation. The trial judge and the jury see the witnesses face to face, hear their testimony and observe their demeanor -3-

on the stand. Thus the trial judge and jury are the primary instrumentality of justice to determine the weight and credibility to be given to the testimony of witnesses. In the trial forum alone is there human atmosphere and the totality of the evidence cannot be reproduced with a written record in this Court. Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523 (1963)). A conviction based on circumstantial evidence is permitted in Tennessee. State v. Tharpe, 726 S.W.2d 896, 899 (Tenn. 1987). Whether the conviction is based upon direct or circumstantial evidence, the standard for appellate review is the same. State v. Johnson, 634 S.W.2d 670, 672 (Tenn. Crim. App. 1982). On appeal, the State is entitled to the strongest legitimate view of the trial evidence and all reasonable and legitimate inferences which may be drawn from the evidence. State v. Carruthers, 35 S.W.3d 516, 558 (Tenn. 2000). The weight given to circumstantial evidence is for the jury to determine. Williams v. State, 520 S.W.2d 371, 374 (Tenn. Crim. App. 1974). Circumstantial evidence alone may be sufficient to convict one of a crime, if such evidence sufficiently proves all the necessary elements. Tharpe, 726 S.W.2d at 899-900. In cases that hinge upon circumstantial evidence, it is well settled that the proof must be consistent with the guilt of the defendant and inconsistent with his innocence, and sufficiently strong to overcome every other reasonable hypothesis except that of guilt. Id. at 900; State v. Bigsby, 40 S.W.3d 87, 90 (Tenn. Crim. App. 2000). The defendant was convicted of carjacking, which is defined as "the intentional or knowing taking of a motor vehicle from the possession of another by use of: (1) [a] deadly weapon; or (2) [f]orce or intimidation." Tenn. Code Ann.

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