NOTES TO DECISIONS

1. Natural and Probable Consequence Rule.

The natural and probable consequence rule which derives from the common law is applicable under T.C.A. §§ 39-11-401 and 39-11-402, and, thus, defendant, who assisted codefendants in committing aggravated robbery, was criminally responsible for additional offenses committed by them. State v. Carson, 950 S.W.2d 951, 1997 Tenn. LEXIS 508 (Tenn. 1997).

The natural and probable consequence rule can be used to sustain a defendant's conviction for first degree premeditated murder based upon criminal responsibility for the conduct of a codefendant during an especially aggravated robbery; the jury, however, must be instructed on all elements of a charge of criminal responsibility, including the natural and probable consequence rule. State v. Howard, 30 S.W.3d 271, 2000 Tenn. LEXIS 383 (Tenn. 2000).

Because the jury was not instructed on the natural and probable consequence rule, the defendant's conviction of premeditated first degree murder was reversed. State v. Howard, 30 S.W.3d 271, 2000 Tenn. LEXIS 383 (Tenn. 2000).

Four gang members who engaged in the kidnapping of two gang members were criminally responsible for the ensuing death of one of the gang members. State v. Mickens, 123 S.W.3d 355, 2003 Tenn. Crim. App. LEXIS 107 (Tenn. Crim. App. 2003), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 805 (Tenn. Sept. 2, 2003).

2. Notice.

Indictment of defendant for aggravated assault was insufficient where it failed to provide adequate notice that she would be required to defend under a theory of criminal responsibility for the conduct of another. State v. Barnes, 954 S.W.2d 760, 1997 Tenn. Crim. App. LEXIS 198 (Tenn. Crim. App. 1997).

3. Evidence Sufficient.

Evidence was sufficient to convict a woman and her lover of premeditated first degree murder under T.C.A. §§ 39-13-202 and 39-11-302(a) where the woman's version of events was inconsistent with the physical evidence because the autopsy of the victim, her husband, revealed that he had been shot six times in the head with a .22 caliber gun prior to the woman's departure for the grocery store, and there were email messages between the defendants that could be fairly characterized as an ongoing discussion of various methods of murder. State v. Watson, 227 S.W.3d 622, 2006 Tenn. Crim. App. LEXIS 259 (Tenn. Crim. App. 2006), appeal denied, State v. Brooks, — S.W.3d —, 2006 Tenn. LEXIS 620 (Tenn. July 3, 2006).

Defendant's argument that the evidence was insufficient to establish that he was criminally responsible for the crimes committed by a friend was without merit because the evidence adduced at trial sufficed to support the jury's conclusion that defendant was criminally responsible for the friend's conduct when the friend committed the especially aggravated kidnapping, aggravated robbery, and attempted murder of the victim. In part, although defendant argued that he failed to take any steps to prevent the crimes because he was too frightened, the law was clear that the state be afforded the strongest legitimate view of the evidence and all reasonable inferences that might be drawn therefrom; the jury simply drew different conclusions from the evidence than those advanced by defendant. State v. Adams, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 822 (Tenn. Crim. App. Nov. 8, 2011), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 187 (Tenn. Mar. 7, 2012), cert. denied, Adams v. Tennessee, 184 L. Ed. 2d 146, 133 S. Ct. 269, 568 U.S. 880, 2012 U.S. LEXIS 6401 (U.S. 2012).

Evidence was sufficient to support defendant's convictions based upon the theory of criminal responsibility where (1) defendant knew that co-defendants intended to carjack a vehicle, did so, and then kidnapped, raped, and killed the victims, and (2) defendant's presence and support of the endeavor showed that he furnished substantial assistance in the commission of these felony offenses. State v. Thomas, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 82 (Tenn. Crim. App. Feb. 5, 2015), rehearing denied, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 152 (Tenn. Crim. App. Feb. 25, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 675 (Tenn. Aug. 12, 2015), cert. denied, Thomas v. Tennessee, 194 L. Ed. 2d 559, 136 S. Ct. 1458, — U.S. —, 2016 U.S. LEXIS 1999 (U.S. 2016).

Evidence that defendant, at the behest of another man, repeatedly drove him to locations in which the man proceeded to rob at gunpoint and that defendant was aware the man planning on robbing the locations and had a gun was sufficient to support a finding that defendant was criminally responsible and to support defendant's convictions for aggravated robbery and misdemeanor theft. State v. Porrazzo, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1022 (Tenn. Crim. App. Dec. 17, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 337 (Tenn. May 5, 2016).

Evidence was sufficient to support defendant's conviction for especially aggravated robbery because based on the proof, the jury reasonably could have concluded that defendant knowingly and intentionally participated in the robbery; after an accomplice shot the victim, defendant took items from the victim's residence without permission. State v. Askew, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1048 (Tenn. Crim. App. Dec. 29, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 350 (Tenn. May 6, 2016).

Jury could have found that defendant was guilty of felony murder in perpetration of or attempt to perpetrate theft, under a theory of criminal responsibility; the proof established that defendant was an active participant in the events resulting in the victim's death and not merely present before and after the offense, as defendant assisted in the commission of the offense by purposefully blocking the victim's car so that the victim could not escape the gunman. State v. Crockett, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 150 (Tenn. Crim. App. Feb. 29, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 486 (Tenn. June 23, 2016).

Evidence was sufficient to support defendant's convictions of two counts of aggravated assault as a party to the offenses where it showed that defendant was driving with his co-defendant and a passenger, the co-defendant and the passenger exited the car, and the co-defendant displayed a gun at the victims. The evidence that defendant stopped the vehicle in a traffic lane for his co-defendant to exit was sufficient to show that defendant knowingly and voluntarily shared in the criminal intent of the crime and promoted its commission. State v. Campbell, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 161 (Tenn. Crim. App. Mar. 3, 2016).

Defendant's conviction for first degree premeditated murder was supported by sufficient proof of her criminal responsibility for the victim's death, and her conviction for conspiracy to commit first degree murder was supported by sufficient proof of an agreement to commit the murder; defendant knew the killing of her husband was going to occur, she agreed to pay half of the compensation to the killer, plus defendant and her daughter were victims of abuse by the husband and wanted him dead, and they conspired to commit the murder. State v. Walls, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 263 (Tenn. Crim. App. Apr. 7, 2016), rev'd, 537 S.W.3d 892, 2017 Tenn. LEXIS 719 (Tenn. Nov. 9, 2017).

Evidence was sufficient to convict defendant of aggravated robbery based on criminal responsibility because the gas station cashier alerted the victim that someone was getting inside his car; when the victim approached his car, co-defendant, who had already closed the driver's side door, brandished a weapon, causing the victim to retreat; co-defendant then drove away in the victim's car; the theft of the victim's car by violence occurred contemporaneously with the taking of that automobile; co-defendant intended to use violence against the victim, if necessary, in order to take the victim's car; defendant instructed co-defendant to get the car; and defendant was arrested driving the stolen vehicle, and he was accompanied by co-defendant. State v. Harris, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 331 (Tenn. Crim. App. May 3, 2016).

Defendant and his other passengers exchanged fire with others and attempted to kill them; defendant was criminally responsible for his own conduct and for the conduct of the others inside his vehicle, and thus the evidence was sufficient to support defendant's separate convictions for attempted voluntary manslaughter. State v. Harbison, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 619 (Tenn. Crim. App. Aug. 19, 2016), rev'd, — S.W.3d —, 2018 Tenn. LEXIS 7 (Tenn. Jan. 9, 2018).

Evidence was sufficient to support defendant's aggravated robbery conviction where the victim testified that defendant and his accomplice passed the gun to each other twice, a witness testified that both defendant and his accomplice had guns during the robbery, and the evidence established that the accomplice used a gun during the robbery, and therefore the jury could have found him guilty as the principle offender or under a theory of criminal responsibility. State v. Doak, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 625 (Tenn. Crim. App. Aug. 22, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 880 (Tenn. Nov. 17, 2016).

Evidence defendant provided an accomplice with the gun used to shoot a victim and rob a store and knew the accomplice intended to rob the store supported convictions for attempted first degree murder, especially aggravated robbery, two counts of aggravated robbery, and two counts of especially aggravated assault under a theory of criminal responsibility. State v. Wallace, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 633 (Tenn. Crim. App. Aug. 25, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 46 (Tenn. Jan. 20, 2017).

Evidence that defendant contacted the perpetrator and asked him to “get rid of” the victim, the victim arrived at defendant's residence following communication with defendant, the perpetrator hit the victim in the head multiple times, and defendant helped load and conceal the victim in a wooded area was sufficient for the jury to find defendant criminally responsible for the victim's death. State v. Bond, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 649 (Tenn. Crim. App. Aug. 31, 2016).

Evidence was sufficient to convict defendant of second degree murder based on a theory of criminal responsibility because a rational trier of fact could have found that defendant's order that the victim endure a six-minute beating killed the victim as multiple witnesses testified that there was a hierarchy of power within the gang and a disciplinary system in place; witnesses identified defendant as a gang member and indicated he had a high rank within the gang; regardless of where the order originated, defendant delivered the order ensuring that the beating occurred; and the possibility that defendant was only relaying the order for a beating, rather than directly issuing the order himself, did not absolve him of responsibility. State v. Taylor, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 653 (Tenn. Crim. App. Aug. 31, 2016).

Circumstantial evidence supported a finding that defendant forged the check with the intent to defraud the victim or was criminally responsible for the forgery; although no direct evidence tied defendant to the forgery of the victim's check in the amount of $ 900, the check was dated and cashed on the day after defendant stole the victim's wallet that contained her checkbook. State v. Williams, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 745 (Tenn. Crim. App. Sept. 29, 2016).

Defendant stole the victim's wallet, which contained her credit cards, which were used in six unauthorized transactions, and although no direct evidence tied defendant to the credit card transactions, the circumstantial evidence supported a finding that he knowingly obtained the victim's personal identifying information with the intent to commit an unlawful act, and in any event, the evidence was sufficient to establish that he was criminally responsible for the actions of another in the unauthorized use of the victim's credit cards and was therefore guilty of identity theft. State v. Williams, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 745 (Tenn. Crim. App. Sept. 29, 2016).

Evidence was sufficient to support defendant's convictions of first degree felony murder and especially aggravated robbery where defendant told a witness that he intended to rob the victim by creating a false drug deal, he and his two co-defendants discussed robbing the victim, defendant who was armed drove his co-defendants to the victim's home, he was inside the home while the victim was shot six times, a co-defendant's blood was found in the victim's home, defendant had blood on his hands when he returned to a witness's home, they discussed the division of the proceeds, and defendant told the witness not to say anything about the offense. State v. Jones, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 908 (Tenn. Crim. App. Dec. 6, 2016), review denied and ordered not published, — S.W.3d —, 2017 Tenn. LEXIS 234 (Tenn. Apr. 12, 2017).

Evidence was sufficient to support defendant's conviction of first-degree murder in the attempt to perpetrate a robbery and attempted especially aggravated robbery because there was proof defendant was present during the crime and assisted the other suspect in committing the crime. Defendant admitted to the witness that he assisted the suspect in the murder, an eyewitness identified defendant as being present in the apartment at the time of the shooting, and his fingerprint was found on a candle holder from the victim's living room that he used to light a cigarette. State v. Taliaferro, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 41 (Tenn. Crim. App. Jan. 20, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 289 (Tenn. May 19, 2017).

Evidence that second defendant possessed a gun and displayed it, and fled with the other defendants and assisted them in disposing of their firearms supported defendant's convictions for attempted first degree murder on the theory of criminal responsibility. State v. Burgess, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 75 (Tenn. Crim. App. Jan. 31, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 340 (Tenn. May 22, 2017).

Evidence was sufficient to support defendant's convictions of aggravated robbery and aggravated burglary as either a principal offender or under a theory of criminal responsibility; defendant and her friend entered the victim's apartment without her consent, defendant hit the victim on the head with a gun and demanded drugs, guns, and money, while the friend searched the apartment and took property, defendant was found with the victim's wallet in her sleeve and a handgun on her person, and the victim positively identified defendant and her friend as the robbers. State v. Sullivan, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 85 (Tenn. Crim. App. Feb. 8, 2017).

Evidence was sufficient to support defendant's conviction for first degree felony murder because defendant gave a statement to the police admitting that defendant, along with accomplices, murdered the victim during the course of robbing the victim of the victim's car and multiple witnesses corroborated defendant's statement. Defendant was to meet with the victim under the pretext of buying the car and to distract the victim while the accomplices stole the car, but one of the accomplices shot and killed the victim during the theft of the car. State v. Vance, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1007 (Tenn. Crim. App. Dec. 5, 2017).

Evidence was sufficient for a rational juror to have found defendant guilty of sale of 0.5 grams or more of cocaine because defendant gave cocaine to a confidential informant in exchange for money; by finding defendant guilty, the jury implicitly resolved any conflicts between the testimonies of the detectives and between the undercover operations report and the indictment information and discovery. State v. Woods, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 301 (Tenn. Crim. App. Apr. 19, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 506 (Tenn. Aug. 8, 2018).

Evidence was sufficient for a rational juror to convict defendant under the theory of criminal responsibility for burglary and theft beyond a reasonable doubt because defendant's constructive possession of the stolen goods corroborated the accomplice's testimony; the accomplice was the sole lessee of the apartment where the stolen items were found, and none of defendant's belongings were found in her apartment even though he told a detective that he was staying at the accomplice's apartment. State v. Mooneyhan, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 376 (Tenn. Crim. App. May 16, 2018).

Evidence was sufficient for a rational juror to convict defendant under the theory of criminal responsibility for burglary and theft beyond a reasonable doubt because defendant's confession to a detective corroborated the accomplice's testimony; defendant confessed that at some point after the burglary he had possession of the stolen handgun, and the accomplice's testimony established that he knowingly obtained or exercised control over the stolen items when he assisted her in the burglary. State v. Mooneyhan, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 376 (Tenn. Crim. App. May 16, 2018).

Evidence that defendant and codefendant approached the scene with guns out and that codefendant fired three times without provocation through the victim's front window and defendant shot at the back of the vehicle, and defendant threatened to kill the woman who drove them from the scene was sufficient to establish premeditation and that defendant knowingly and voluntarily shared in the criminal intent of first degree murder. State v. Lowe, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 504 (Tenn. Crim. App. July 6, 2018).

Evidence was sufficient to convict defendant of attempted aggravated robbery of the second victim under the theory of criminal responsibility because the jury could conclude that co-defendant intended to take property from the second victim when he brandished a gun and demanded that the second victim drop everything; co-defendant's actions constituted a substantial step towards the completion of aggravated robbery; and the jury could reasonably conclude that defendant and co-defendant were working together to rob the victims as defendant pointed his gun at the first victim and ordered him to give him everything while co-defendant pointed his gun at the second victim and told him to drop everything. State v. Brown, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 636 (Tenn. Crim. App. Aug. 20, 2018).

Evidence was sufficient to convict defendant of aggravated assault of the second victim under the theory of criminal responsibility because the second victim testified that he was shot in the hand and that scars remained on his hand from the gunshot wound; he identified co-defendant as the shooter; the jury could conclude that co-defendant either intentionally, knowingly, or recklessly fired his gun, a deadly weapon, thereby causing bodily injury to the second victim; and the jury could conclude that defendant and co-defendant were working together to rob the victims as defendant pointed his gun at the first victim and ordered him to give him everything while co-defendant pointed his gun at the second victim and told him to drop everything. State v. Brown, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 636 (Tenn. Crim. App. Aug. 20, 2018).

Evidence was sufficient to convict defendant of aggravated robbery because two witnesses testified that both defendant and the accomplice were armed with guns; the victim testified that defendant hit him in the face, held him down, and instructed his accomplice to take the victim's wallet; and the use of a BB gun by the accomplice supported the guilty verdict as it was an article used or fashioned to lead the victim to reasonably believe it to be a deadly weapon. State v. Mitchell, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 693 (Tenn. Crim. App. Sept. 12, 2018).

Evidence supported defendant's conviction for aggravated robbery because convenience store cashiers testified that defendant and co-defendant, after communicating together, assaulted the victim together inside a convenience store and that defendant had a knife, surveillance video showed that a box cutter fell to the floor in the struggle, defendant recovered items from the victim's wallet that fell to the floor and ran, and the victim's social security card and a check stub were found inside defendant's vehicle hours later. State v. Bingham, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 760 (Tenn. Crim. App. Oct. 8, 2018).

Evidence was sufficient to support defendant's conviction for possession with intent to sell and deliver more than .5 grams of cocaine because defendant aided codefendant by allowing defendant's house to be used as the location for a drug venture and defendant intended to benefit from providing this aid by receiving drugs, rather than cash, for defendant's personal use. State v. Moore, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 22 (Tenn. Crim. App. Jan. 14, 2019).

Evidence was sufficient to support defendant's convictions of two counts of first-degree premeditated murder under the theory of criminal responsibility because it showed that defendant aided or attempted to aid her husband and her daughter's boyfriend in the victims'  murders. The jury could have inferred that defendant and her daughter convinced her husband that their daughter was the target of harassment and death threats from the victims and their friends, defendant wrote in emails that she wanted the victims dead, and she attempted to destroy evidence relating to the offenses and provided her husband with a false alibi after he carried out the murders. State v. Potter, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 73 (Tenn. Crim. App. Feb. 5, 2019).

Evidence was sufficient to support defendant's conviction of aggravated robbery under a theory of criminal responsibility because he arranged a meeting with the victim to purportedly sell clothing, during the sale two men approached and attacked the victim, taking cash and a cell phone, defendant admitted he knew one of the robbers, defendant fled the scene in a red car, which picked up the two robbers minutes later, and defendant admitted he received a cell phone and posted it for sale. State v. Brewer, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 157 (Tenn. Crim. App. Mar. 11, 2019).

Evidence was sufficient to support defendant's convictions of aggravated burglary and theft of property; defendant's transfer of property stolen during the burglary was a rational connection between his possession of the stolen property and his participation in the aggravated burglary, and regardless of who went inside, defendant benefitted from the proceeds of the aggravated burglary and theft and aided his co-defendant in the commission of the offenses. State v. Odom, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 160 (Tenn. Crim. App. Mar. 12, 2019).

Evidence was sufficient to support defendant's identity as the perpetrator of the murder under a theory of criminal responsibility because, based on cell phone records, the evidence showed that defendant pointed the gun that was used to kill the first victim at a second victim in another area of town sometime between 6:30 p.m. when he last called the second victim and 6:49 p.m. when calls began to be exchanged between the second victim's cell phone and his brother's cell phone regarding defendant's demand for ransom. Defendant also boasted to the second victim that he had committed other murders earlier in the day. State v. Brown, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 220 (Tenn. Crim. App. Apr. 8, 2019).

Convictions of defendant for aggravated robbery, aggravated burglary, and aggravated assault, based upon a theory of criminal responsibility, was supported by the evidence because the evidence established that defendant intended to benefit from the proceeds of the robbery of the victim and aided codefendants in planning the robbery. State v. Odom, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 419 (Tenn. Crim. App. July 12, 2019).

Evidence was sufficient to establish defendant's identity as a perpetrator of the armed robbery and provided sufficient corroboration of the codefendant's testimony because it showed that defendant entered the market brandishing a shotgun and wearing a ski mask and gloves, he pointed the shotgun at the victim and demanded that she give him the money bag, defendant was picked up by his codefendant which was captured on video, the codefendant admitted that he was the driver and provided the police with the location of the ski mask and a glove, and defendant was the primary contributor of DNA obtained from the mask and glove. State v. Judkins, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 498 (Tenn. Crim. App. Aug. 19, 2019).

Evidence was sufficient to convict defendant of especially aggravated robbery because defendant and the accomplice entered the victim's apartment in order to rob him; the accomplice pointed the gun at the victim before shooting him and taking his cell phone; and defendant was criminally responsible for the accomplice's actions as he was engaged in a criminal endeavor to rob the victim. State v. Dodson, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 10 (Tenn. Crim. App. Jan. 13, 2020).

Evidence was sufficient to convict defendant of felony murder because defendant and his accomplice were asked by a third party to steal marijuana from the victim; the accomplice fatally shot the victim using defendant's gun; and defendant intended to promote or assist in the commission of the robbery and was criminally responsible for the victim's death. State v. Dodson, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 10 (Tenn. Crim. App. Jan. 13, 2020).

Evidence supported defendant's conviction of theft; she participated in a scheme to obtain money from the human services department through a ministry becoming a sponsor in a summer food services program. Defendant claimed to be the program administrator but auditors found no evidence that she purchased large volumes of food, and while a church employee claimed defendant was not involved, the jury could have found defendant was directing or assisting that employee in taking the money. State v. Jives-Nealy, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 156 (Tenn. Crim. App. Feb. 28, 2020).

There was sufficient evidence to sustain defendant's convictions for aggravated battery and murder, including evidence that defendant and his co-defendants forced their way into the victim's apartment armed with a gun, the victim was unarmed and surrounded by the men demanding to know where her son was, and when she failed to provide an answer, a co-defendant shot the victim in the head at the defendant's direction. State v. Fletcher, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 160 (Tenn. Crim. App. Mar. 2, 2020).

Evidence was sufficient to convict defendant of first degree premeditated murder and first degree felony murder, which were merged, based on criminal responsibility as defendant acted with the intent to promote or assist in the commission of the crimes and aided or attempted to aid in the crimes because defendant initiated the robbery by placing a telephone pizza order which lured the victim to the scene; while the victim attempted to deliver the pizza order to the residence, two men waited until the victim returned to his car to approach the victim; defendant heard a gunshot coming from the direction of the men; and defendant repeatedly ran over the victim to ensure he was dead prior to taking his vehicle. State v. Miller, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 405 (Tenn. Crim. App. June 11, 2020).

4. Jury Instructions.

In a murder and robbery case, the court properly instructed on criminal responsibility because defendant was not only present in the motel room, but he was acting with the intent to promote or assist in the aggravated robberies. Needing money for bail for a family member, the two men arrived armed at the motel room together, and they proceeded to force their way inside the victims'  motel room and attempted to steal items from the occupants therein. State v. Price, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 829 (Tenn. Crim. App. Sept. 26, 2013), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 258 (Tenn. Mar. 11, 2014).

Trial court did not err by instructing the jury on criminal responsibility where the proof showed that the victim was shot nine times by three weapons, the victim sustained all of the injuries within a very short time period, four witnesses identified defendant was one of the shooters and his codefendant was identified as another shooter, and a witness so the codefendant with another accomplice immediately prior to the codefendant opening fire. State v. Wilson, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 991 (Tenn. Crim. App. Dec. 11, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 257 (Tenn. Mar. 23, 2016).

Despite defendant's referring to the trial court's instruction as a material modification of the criminal responsibility and first degree murder instructions already given, it was in fact an accurate supplemental instruction in response to the jury's question, plus the trial court did admonish the jury not to place undue emphasis on the instruction. State v. Walls, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 263 (Tenn. Crim. App. Apr. 7, 2016), rev'd, 537 S.W.3d 892, 2017 Tenn. LEXIS 719 (Tenn. Nov. 9, 2017).

Record failed to include a transcript of the instructions as read to the jury, although it contained what purported to be a written copy of the trial court's charge; in any event, the criminal responsibility instruction provided in the written copy of the charge was fairly raised by the evidence, tracked the language of the pattern jury instruction, and was a correct statement of the law, and thus the inclusion of the instruction was not error. State v. Williams, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 745 (Tenn. Crim. App. Sept. 29, 2016).

Trial court's jury instructions were proper because defendant did not object to the court's decision not to charge attempt as a lesser-included offense, the evidence established only a completed crime, the jury was properly charged on flight and criminal responsibility, and any error in not charging facilitation was harmless beyond a reasonable doubt. State v. Daniels, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 198 (Tenn. Crim. App. Mar. 16, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 445 (Tenn. July 20, 2017).

5. Evidence Insufficient.

Evidence was insufficient to support one of defendant's convictions for attempted voluntary manslaughter because the doctrine of transferred intent was inapplicable to the conviction when the victim on a sidewalk was shot while defendant and a codefendant in the car which defendant was driving exchanged gunfire with codefendants in another car, as there was no evidence that defendant provoked anyone. State v. Harbison, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 619 (Tenn. Crim. App. Aug. 19, 2016), rev'd, — S.W.3d —, 2018 Tenn. LEXIS 7 (Tenn. Jan. 9, 2018).

Given the lack of provocation on the part of the victim towards any of the defendants, the State could base a conviction for the attempted manslaughter conviction of the victim on the other's actions under a theory of criminal responsibility. State v. Harbison, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 619 (Tenn. Crim. App. Aug. 19, 2016), rev'd, — S.W.3d —, 2018 Tenn. LEXIS 7 (Tenn. Jan. 9, 2018).

None of the shooters involved could be guilty of the offense of attempted voluntary manslaughter of the victim, which requires the act of the slayer be the result of provocation instigated by the person slain; there was no credible evidence to suggest that anyone was adequately provoked by the victim that day, and thus there was no offense committed by the conduct of another for which defendant could be found guilty. State v. Harbison, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 619 (Tenn. Crim. App. Aug. 19, 2016), rev'd, — S.W.3d —, 2018 Tenn. LEXIS 7 (Tenn. Jan. 9, 2018).

None of the shooters involved could be guilty of attempted voluntary manslaughter of one victim, as the offense requires the act of the slayer be the result of provocation instigated by the person slain; there was no credible evidence that anyone was adequately provoked by the victim that day. State v. North, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 799 (Tenn. Crim. App. Oct. 26, 2016).

6. Double Jeopardy.

Defendant's multiple convictions for employing a firearm during the commission of a dangerous felony violated double jeopardy; the single offending act was the employment of a handgun during the shooting event, regardless of the number of firearms used by the various individuals, the number bullets fired by defendant, or the number of predicate felonies arising out of that single transaction, and the appropriate unit of prosecution was a single conviction for the felonious conduct during one transaction, regardless of whether the conviction was garnered under a theory of criminal responsibility or as a principal actor. State v. Harbison, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 619 (Tenn. Crim. App. Aug. 19, 2016), rev'd, — S.W.3d —, 2018 Tenn. LEXIS 7 (Tenn. Jan. 9, 2018).

NOTES TO DECISIONS

1. Construction.

The fact that T.C.A. § 39-11-403 referred to T.C.A. § 39-11-402(b), even though T.C.A. § 39-11-402 had been changed to show (1)-(3) rather than (a)-(c) at the time of their indictment and trial, did not warrant granting defendants a new trial. State v. Hicks, 835 S.W.2d 32, 1992 Tenn. Crim. App. LEXIS 49 (Tenn. Crim. App. 1992), appeal denied, — S.W.2d —, 1993 Tenn. LEXIS 303 (Tenn. Aug. 2, 1993).

Under § 39-11-402(2) and (3), proof of negligence or recklessness does not suffice to make a person criminally liable; it is necessary that defendant in some way associate himself with the venture, act with knowledge that an offense is to be committed, and share in the criminal intent of the principal. State v. Maxey, 898 S.W.2d 756, 1994 Tenn. Crim. App. LEXIS 802 (Tenn. Crim. App. 1994).

The natural and probable consequence rule which derives from the common law is applicable under T.C.A. §§ 39-11-402 and 39-11-401, and, thus, defendant, who assisted codefendants in committing aggravated robbery, was criminally responsible for additional offenses committed by them. State v. Carson, 950 S.W.2d 951, 1997 Tenn. LEXIS 508 (Tenn. 1997).

To impose criminal liability based on the natural and probable consequences rule, the state must prove beyond a reasonable doubt and — the jury must find — the following: (1) The elements of the crime or crimes that accompanied the target crime; (2) That the defendant was criminally responsible pursuant to T.C.A. § 39-11-402; and (3) That the other crimes committed were natural and probable consequences of the target crime. State v. Howard, 30 S.W.3d 271, 2000 Tenn. LEXIS 383 (Tenn. 2000).

Tennessee state offense of solicitation to commit aggravated assault involves conduct that presents a serious potential risk of physical injury to another, and involves the same kind of purposeful, violent and oppressive conduct as the enumerated offenses; it therefore qualifies as a “violent felony” under 18 U.S.C. § 924(e)(2)(B)(2). United States v. Benton, 639 F.3d 723, 2011 U.S. App. LEXIS 9940, 2011 FED App. 128P (6th Cir. May 17, 2011).

Because the crime of solicitation to commit aggravated assault was at least one step removed from the requisite level of force contemplated in 18 U.S.C. § 924(e)(2)(B)(1), it did not qualify as a “violent felony” under the first prong of the definition. United States v. Benton, 639 F.3d 723, 2011 U.S. App. LEXIS 9940, 2011 FED App. 128P (6th Cir. May 17, 2011).

Statute was sufficiently precise to put a person of common intelligence on notice of the prohibited conduct where the statute intended to assess criminal liability to persons who acted together in committing criminal offenses. State v. Thomas, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 82 (Tenn. Crim. App. Feb. 5, 2015), rehearing denied, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 152 (Tenn. Crim. App. Feb. 25, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 675 (Tenn. Aug. 12, 2015), cert. denied, Thomas v. Tennessee, 194 L. Ed. 2d 559, 136 S. Ct. 1458, — U.S. —, 2016 U.S. LEXIS 1999 (U.S. 2016).

Under T.C.A. §§ 39-11-403(a), 39-11-402(2), a defendant must know that an individual intended to commit a specified felony and the defendant must furnish substantial assistance to that individual without intending to promote or assist in the commission of the specified felony or benefit in the proceeds. State v. Theus, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 613 (Tenn. Crim. App. July 12, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 794 (Tenn. Nov. 16, 2017).

2. Relationship to Federal Law.

Defendant's prior conviction under T.C.A. §§ 39-11-402 and 39-11-403 for facilitation of the burglary of a building was not a “violent felony” under the “otherwise” clause of 18 U.S.C. § 924(e)(2)(B) of the Armed Career Criminal Act. Although the offense of facilitation of a burglary created a serious risk of violence, it did not qualify as purposeful, violent, and aggressive; to be guilty of facilitation of a burglary under § 39-11-403, an individual had to have acted without the intent required for criminal responsibility for the ultimate criminal act. United States v. Vanhook, 640 F.3d 706, 2011 FED App. 95P, 2011 U.S. App. LEXIS 7884 (6th Cir. Apr. 18, 2011).

3. Aider and Abettor as Principal Offender.

Trial court did not err by failing to instruct the jury on facilitation, T.C.A. § 39-11-403(a), as a lesser-included offense during defendant's criminal trial, because the evidence did not support the notion that defendant merely furnished substantial assistance in the commission of premeditated first-degree murder and especially aggravated kidnapping, without intending to promote or assist the commission of those offenses. The evidence reasonably supported only one of the following conclusions: (1) Defendant was not present at the apartment at which the victim was beaten, was not involved in the victim's murder or the gang that killed the victim, and therefore was completely innocent; (2) Defendant was innocent because, while he gave orders, he did not order anyone to kill or kidnap the victim; or (3) Defendant was guilty by criminal responsibility, T.C.A. § 39-11-402, because he ordered other gang members to kidnap and kill the victim. State v. Robinson, 146 S.W.3d 469, 2004 Tenn. LEXIS 843 (Tenn. 2004), rehearing denied, — S.W.3d —, 2004 Tenn. LEXIS 912 (Tenn. 2004), cert. denied, Robinson v. Tennessee, 126 S. Ct. 1429, 164 L. Ed. 2d 132, 546 U.S. 1214, 2006 U.S. LEXIS 1839 (2006).

Where there were email messages between a woman and her lover, both convicted of murdering the woman's husband, that could be fairly characterized as an ongoing discussion of various methods of murder, it was not necessary that the lover be present to be criminally responsible; evidence was sufficient to support the lover's conviction even though he was in Shreveport, Louisiana. State v. Watson, 227 S.W.3d 622, 2006 Tenn. Crim. App. LEXIS 259 (Tenn. Crim. App. 2006), appeal denied, State v. Brooks, — S.W.3d —, 2006 Tenn. LEXIS 620 (Tenn. July 3, 2006).

4. Presence and Companionship.

Presence and companionship with the perpetrator of a felony before and after the commission of the offense are circumstances from which one's participation in the crime may be inferred; no particular act need be shown and it is not necessary for one to take a physical part of the crime. State v. Jones, 15 S.W.3d 880, 1999 Tenn. Crim. App. LEXIS 850 (Tenn. Crim. App. 1999).

5. Accessory After the Fact.

Supreme Court of Tennessee held that the common law rule that a person charged as an accessory after the fact could not be tried prior to the principal offender being convicted, unless the person charged as an accessory after the fact expressly consented to waive the common law rule, had not been abrogated by the Tennessee Criminal Sentencing Reform Act, and it declined to judicially abrogate it. State v. Hawk, 170 S.W.3d 547, 2005 Tenn. LEXIS 656 (Tenn. 2005).

6. Elements of Offense.

Although the state did not allege that defendant was guilty under a theory of criminal responsibility by assisting the co-defendant's neglect of her child either in the indictment or the bill of particulars, the state was not precluded from pursuing theories of criminal liability that were not mentioned in the bill of particulars, so long as such theories of liability did not exceed the scope of the indictment. State v. Sherman, 266 S.W.3d 395, 2008 Tenn. LEXIS 538 (Tenn. Aug. 15, 2008).

Because criminal responsibility was not eliminated as a possible theory of guilt by the bill of particulars, granting defendant's motion to dismiss child neglect charge was improper. State v. Sherman, 266 S.W.3d 395, 2008 Tenn. LEXIS 538 (Tenn. Aug. 15, 2008).

Presence and companionship with the perpetrator of a felony before and after the commission of the offense are circumstances from which one's participation in the crime may be inferred; no particular act need be shown and it is not necessary for one to take a physical part of the crime. State v. Jones, 15 S.W.3d 880, 1999 Tenn. Crim. App. LEXIS 850 (Tenn. Crim. App. 1999).

Mere presence during the commission of the crime is not enough to convict. State v. Jones, 15 S.W.3d 880, 1999 Tenn. Crim. App. LEXIS 850 (Tenn. Crim. App. 1999).

Encouragement of the principal is sufficient to infer one's participation in a crime. State v. Jones, 15 S.W.3d 880, 1999 Tenn. Crim. App. LEXIS 850 (Tenn. Crim. App. 1999).

7. —Intent of Aider and Abettor.

The culpable mental state of an aider and abettor is “intentional,” as defined in § 39-11-302; thus, where defendant intentionally permitted another person to operate her motor vehicle when that person was intoxicated, defendant was criminally responsible for the crimes committed by the driver. State v. Williamson, 919 S.W.2d 69, 1995 Tenn. Crim. App. LEXIS 989 (Tenn. Crim. App. 1995).

8. — —Murder.

The eighth amendment to the United States Constitution does not bar the death penalty for an aider and abettor where the proof shows that person intended that a killing take place or was a major participant in the underlying felony and had a mental state of reckless indifference to human life. State v. Taylor, 774 S.W.2d 163, 1989 Tenn. LEXIS 348 (Tenn. 1989), cert. denied, Taylor v. Tennessee, 493 U.S. 945, 110 S. Ct. 355, 107 L. Ed. 2d 342, 1989 U.S. LEXIS 5136 (1989).

The trial court did not err in refusing to charge the jury on facilitation of felony murder where the evidence showed that defendant and accomplices met and planned a robbery and the murder was committed by an accomplice of defendant in the course of the robbery. State v. Utley, 928 S.W.2d 448, 1995 Tenn. Crim. App. LEXIS 952 (Tenn. Crim. App. 1995).

Four gang members who engaged in the kidnapping of two gang members, were criminally responsible for the ensuing death of one of the gang members. State v. Mickens, 123 S.W.3d 355, 2003 Tenn. Crim. App. LEXIS 107 (Tenn. Crim. App. 2003), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 805 (Tenn. Sept. 2, 2003).

9. — —Possession of Drugs.

A jury could rationally conclude that the defendant, by making arrangements with the defendant's first cousin to secure a residence for the purpose of selling drugs, acted with the intent to and in fact did aid the defendant's live-in lover in the sale of drugs. State v. Bigsby, 40 S.W.3d 87, 2000 Tenn. Crim. App. LEXIS 484 (Tenn. Crim. App. 2000).

Trial court did not err in charging a jury on the lesser-included offense of facilitation of possession of marijuana with intent to deliver where the evidence presented at trial was sufficient to support conviction for facilitation of possession of marijuana where when the vehicle defendant was in was initially stopped by the police, one or more of the occupants had been recently smoking marijuana due to the strong odor observed, defendant was aware of his friend's attempt to hide the marijuana from the police by removing it from the front center console and placing it under the front passenger seat, and it was the defendant (not his friend) who was in physical control of the marijuana due to his proximity to the brown paper bag. State v. Nash, 104 S.W.3d 495, 2003 Tenn. LEXIS 434 (Tenn. 2003).

10. — —Facilitation of Felony Murder.

Knowledge of the specific felony required under T.C.A. § 39-11-403 is met in a felony murder prosecution not by knowledge of the felony murder, but by knowledge that the other person was going to commit the underlying felony; thus, defendant could be guilty of facilitation of felony murder because he knew his codefendant was planning on committing a robbery. State v. Lewis, 919 S.W.2d 62, 1995 Tenn. Crim. App. LEXIS 846 (Tenn. Crim. App. 1995), overruled, State v. Williams, 977 S.W.2d 101, 1998 Tenn. LEXIS 512 (Tenn. 1998).

Evidence was sufficient to support defendant's conviction for first degree felony murder because defendant gave a statement to the police admitting that defendant, along with accomplices, murdered the victim during the course of robbing the victim of the victim's car and multiple witnesses corroborated defendant's statement. Defendant was to meet with the victim under the pretext of buying the car and to distract the victim while the accomplices stole the car, but one of the accomplices shot and killed the victim during the theft of the car. State v. Vance, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1007 (Tenn. Crim. App. Dec. 5, 2017).

11. — —Rape.

Evidence was sufficient to convict defendant of aggravated rape even though the victim could not say with complete certainty that he was the one who penetrated her; the victim identified defendant as the one who initiated the attack and, if he was not the one who penetrated her, he clearly assisted the one who did. State v. Williams, 920 S.W.2d 247, 1995 Tenn. Crim. App. LEXIS 817 (Tenn. Crim. App. 1995).

12. — —Robbery.

Where a jury could reasonably have concluded that, while defendant participated substantially by kicking and beating the victim, the defendant did not intend to promote, assist or benefit from the offense of robbery since defendant took no property from the victim, the trial court should have instructed the jury on the lesser-included offense of facilitation. State v. Flemming, 19 S.W.3d 195, 2000 Tenn. LEXIS 157 (Tenn. 2000).

The natural and probable consequence rule can be used to sustain a defendant's conviction for first degree premeditated murder based upon criminal responsibility for the conduct of a codefendant during an especially aggravated robbery; the jury, however, must be instructed on all elements of a charge of criminal responsibility, including the natural and probable consequence rule. State v. Howard, 30 S.W.3d 271, 2000 Tenn. LEXIS 383 (Tenn. 2000).

Facts supported the conclusion that defendant acted with the intent to assist an accomplice in an attempt to rob the victim where defendant quoted the accomplice as saying, “I ought to rob the old bastard and take a whole carton of cigarettes,” defendant claimed to have waited in the car while the accomplice went back to the store, and after the accomplice returned, defendant took accomplice's ski mask to have it burned; based on this testimony, the jury could have found the defendant guilty of felony murder based on criminal responsibility. State v. Cureton, 38 S.W.3d 64, 2000 Tenn. Crim. App. LEXIS 29 (Tenn. Crim. App. 2000), review or rehearing denied, — S.W.3d —, 2000 Tenn. LEXIS 631 (Tenn. Nov. 6, 2000).

13. Notice.

Indictment of defendant for aggravated assault was insufficient where it failed to provide adequate notice that she would be required to defend under a theory of criminal responsibility for the conduct of another. State v. Barnes, 954 S.W.2d 760, 1997 Tenn. Crim. App. LEXIS 198 (Tenn. Crim. App. 1997).

14. Jury Instructions.

In the absence of a special request for further instructions, there was no reversible error in a conviction for a crime against nature where the trial court's charge dealt with aiding and abetting and did not directly charge that defendant would be criminally chargeable with acts which he forced others to perform, but where charge did say that if the jury found defendant to have committed the crime, defendant was guilty of a crime against nature. Lundy v. State, 521 S.W.2d 591, 1974 Tenn. Crim. App. LEXIS 254 (Tenn. Crim. App. 1974).

In determining whether an instruction on a lesser-included offense must be given, a court must: (1) Determine whether any evidence exists that reasonable minds could accept as to the lesser-included offense and (2) Determine whether the evidence viewed in the light most favorable to the existence of the lesser-included offense is legally sufficient to support a conviction for the lesser-included offense. State v. Fowler, 23 S.W.3d 285, 2000 Tenn. LEXIS 345 (Tenn. 2000).

Facilitation of a felony, is a lesser-included offense when one is charged with criminal responsibility for the actions of another; however, defendant, a passenger in a fleeing vehicle, was not entitled to an instruction on facilitation since defendant did not contend to be guilty of facilitation, did not show evidence of “substantial assistance” so as to raise the issue of facilitation, and did not ask for that instruction. State v. Fowler, 23 S.W.3d 285, 2000 Tenn. LEXIS 345 (Tenn. 2000).

The lower court did not err in omitting the natural and probable consequences instruction with respect to the especially aggravated robbery count, inasmuch as that count represented the target crime. State v. Winters, 137 S.W.3d 641, 2003 Tenn. Crim. App. LEXIS 944 (Tenn. Crim. App. 2003), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 298 (Tenn. Mar. 22, 2004).

Defendant was statutorily responsible for all homicides committed during the course of the robbery, whether or not the homicide was foreseeable; as such, despite the state's concession that the instruction should have been given, the trial court was not required to give the natural and probable consequences instruction for the felony murder count. State v. Winters, 137 S.W.3d 641, 2003 Tenn. Crim. App. LEXIS 944 (Tenn. Crim. App. 2003), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 298 (Tenn. Mar. 22, 2004).

In a premeditated murder case, a court's error in failing to instruct the jury on the natural and probable consequences rule was not harmless, where there was contested evidence of defendant's intent. State v. Winters, 137 S.W.3d 641, 2003 Tenn. Crim. App. LEXIS 944 (Tenn. Crim. App. 2003), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 298 (Tenn. Mar. 22, 2004).

Despite defendant's referring to the trial court's instruction as a material modification of the criminal responsibility and first degree murder instructions already given, it was in fact an accurate supplemental instruction in response to the jury's question, plus the trial court did admonish the jury not to place undue emphasis on the instruction. State v. Walls, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 263 (Tenn. Crim. App. Apr. 7, 2016), rev'd, 537 S.W.3d 892, 2017 Tenn. LEXIS 719 (Tenn. Nov. 9, 2017).

Record failed to include a transcript of the instructions as read to the jury, although it contained what purported to be a written copy of the trial court's charge; in any event, the criminal responsibility instruction provided in the written copy of the charge was fairly raised by the evidence, tracked the language of the pattern jury instruction, and was a correct statement of the law, and thus the inclusion of the instruction was not error. State v. Williams, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 745 (Tenn. Crim. App. Sept. 29, 2016).

Trial court did not err by instructing the jury on criminal responsibility, as the evidence showed that defendant and another man acted in concert to steal a car, they fled when police attempted to stop the car, they continued fleeing on foot, and defendant was found hiding in the vicinity of the stolen vehicle, allowing the jury to infer that defendant was one of the occupants of the car and intended to promote or benefit from the failure to yield to police. State v. Perkins, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 831 (Tenn. Crim. App. Nov. 7, 2016).

Trial court's jury instructions were proper because defendant did not object to the court's decision not to charge attempt as a lesser-included offense, the evidence established only a completed crime, the jury was properly charged on flight and criminal responsibility, and any error in not charging facilitation was harmless beyond a reasonable doubt. State v. Daniels, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 198 (Tenn. Crim. App. Mar. 16, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 445 (Tenn. July 20, 2017).

Jury was properly instruction on criminal responsibility, as the evidence showed that two people approached the victim in his driveway in the middle of the night with an intent to rob him and both perpetrators sole and drove away in the victim's car. State v. Perkins, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 677 (Tenn. Crim. App. Aug. 3, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 892 (Tenn. Dec. 6, 2017).

The evidence showed that one of the defendants was an active participant in the beating, robbery, and kidnapping of the victim so that the facilitation instructions which the defendant requested were not necessary. State v. Buford, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 181 (Tenn. Crim. App. Mar. 7, 2018).

During defendant's trial for aggravated robbery charged under a theory of criminal responsibility, the trial court plainly erred by failing to read to the jury the written instructions defining the terms intentionally and knowingly because the mens rea was an essential element of the offense and was a contested issue at trial. State v. Brewer, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 157 (Tenn. Crim. App. Mar. 11, 2019).

Trial court properly instructed the jury on the law of criminal responsibility because the evidence adduced at trial established that defendant assumed the role of the victim's father; defendant's name was listed in the father's portion of the victim's school enrollment form, defendant was present for school drop off and pick up, and he undertook the discipline of the victim by spanking him. State v. Harris, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 708 (Tenn. Crim. App. Nov. 5, 2019), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 236 (Tenn. Mar. 26, 2020).

15. —Accomplice Instruction.

In a case where police arrived at the scene of a three-car accident, defendant was found outside the truck while his companion was found in the passenger seat, and defendant and several witnesses testified that his companion was driving the vehicle; in defendant's criminal prosecution for vehicular assault and aggravated vehicular homicide, although trial court erred by failing to instruct the jury as to accomplice liability under T.C.A. § 39-11-402(2), the error was harmless because ample evidence introduced at trial corroborated the companion's testimony that defendant was driving at the time of the accident. State v. Bowman, 327 S.W.3d 69, 2009 Tenn. Crim. App. LEXIS 35 (Tenn. Crim. App. Jan. 14, 2009), appeal denied, — S.W.3d —, 2009 Tenn. LEXIS 395 (Tenn. June 15, 2009), cert. denied, Bowman v. Tennessee, 175 L. Ed. 2d 388, 130 S. Ct. 559, 2009 U.S. LEXIS 8080 (U.S. 2009).

Although defendant argued that he was denied a fair trial because the trial court provided a jury instruction on criminal responsibility for conduct of another, T.C.A. § 39-11-402, the trial court did not err by providing an instruction on criminal responsibility for conduct of another because a witness testified that he saw defendant in the room where the victim was tied to a chair, heard defendant raising his voice toward the victim, and understood defendant to be primarily responsible for his kidnapping. In consequence, even if the jury determined that defendant did not physically participate in the kidnapping, the testimony was sufficient to establish that defendant was not only present at the house during the kidnapping, but that he had encouraged other participants in the commission of the offense. State v. Little, 402 S.W.3d 202, 2013 Tenn. LEXIS 309 (Tenn. Mar. 22, 2013).

16. Evidence.

Where defendant father and defendant mother were charged with aggravated child abuse, and she was also charged with violating T.C.A. § 39-11-402, evidence of defendant father's prior assaults against her was irrelevant and improperly admitted because it did not establish that it was more probable that she intended to promote, assist, or benefit from results of the offense. State v. Gomez, 367 S.W.3d 237, 2012 Tenn. LEXIS 291 (Tenn. Apr. 24, 2012).

17. —Sufficient.

Evidence was sufficient to support conviction. State v. Todd, 631 S.W.2d 464, 1981 Tenn. Crim. App. LEXIS 426 (Tenn. Crim. App. 1981); State v. Lequire, 634 S.W.2d 608, 1981 Tenn. Crim. App. LEXIS 430 (Tenn. Crim. App. 1982); State v. Moore, 631 S.W.2d 456, 1982 Tenn. Crim. App. LEXIS 416 (Tenn. Crim. App. 1982); State v. McBee, 644 S.W.2d 425, 1982 Tenn. Crim. App. LEXIS 475 (Tenn. Crim. App. 1982); State v. Hall, 656 S.W.2d 60, 1983 Tenn. Crim. App. LEXIS 402 (Tenn. Crim. App. 1983); State v. Hicks, 835 S.W.2d 32, 1992 Tenn. Crim. App. LEXIS 49 (Tenn. Crim. App. 1992), appeal denied, — S.W.2d —, 1993 Tenn. LEXIS 303 (Tenn. Aug. 2, 1993).

Evidence was sufficient to convict defendant of first degree premeditated murder as defendant assisted in the commission of murder, assisted in the concealment of the crime, and aided another in the disposal of the body. State v. Hill, 118 S.W.3d 380, 2002 Tenn. Crim. App. LEXIS 1074 (Tenn. Crim. App. 2002).

Evidence was sufficient to support defendant's conviction of especially aggravated kidnapping because: (1) It showed that defendant and his co-defendant left the co-defendant's apartment carrying handcuffs, rope, and duct tape; (2) There was evidence, including defendant's own statement, that the victims were bound and transported to a construction site where their bodies were eventually found; and (3) Rope found at the murder scene was further evidence that the victims had been bound. It was clear that defendant played an active role in planning, preparing, and executing the kidnapping, robbery, and murder of the victims, and the evidence was certainly sufficient to support a finding of guilt beyond a reasonable doubt of especially aggravated kidnapping under at least a theory of criminal responsibility. State v. Berry, 141 S.W.3d 549, 2004 Tenn. LEXIS 659 (Tenn. 2004), writ denied, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 214 (Tenn. Crim. App. Mar. 23, 2016).

Evidence was sufficient to sustain a felony murder conviction where defendant admitted he was present during a robbery by an accomplice, and one victim was shot and killed during the robbery. State v. Summers, 159 S.W.3d 586, 2004 Tenn. Crim. App. LEXIS 788 (Tenn. Crim. App. 2004), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 26 (Tenn. Jan. 18, 2005).

Evidence was sufficient to convict defendant of aggravated sexual battery against the older victim because, although the older victim did not remember the incident, the younger victim testified that defendant made her touch the older child's private area with her hand and made the older child touch her the same way. State v. Osborne, 251 S.W.3d 1, 2007 Tenn. Crim. App. LEXIS 689 (Tenn. Crim. App. Aug. 28, 2007), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 59 (Tenn. Jan. 28, 2008).

Proof was overwhelming that defendant was a willing and active participant in the attack instigated by his brother. State v. Hatcher, 310 S.W.3d 788, 2010 Tenn. LEXIS 419 (Tenn. May 4, 2010).

Defendant's argument that the evidence was insufficient to establish that he was criminally responsible for the crimes committed by a friend was without merit because the evidence adduced at trial sufficed to support the jury's conclusion that defendant was criminally responsible for the friend's conduct when the friend committed the especially aggravated kidnapping, aggravated robbery, and attempted murder of the victim. In part, although defendant argued that he failed to take any steps to prevent the crimes because he was too frightened, the law was clear that the state be afforded the strongest legitimate view of the evidence and all reasonable inferences that might be drawn therefrom; the jury simply drew different conclusions from the evidence than those advanced by defendant. State v. Adams, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 822 (Tenn. Crim. App. Nov. 8, 2011), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 187 (Tenn. Mar. 7, 2012), cert. denied, Adams v. Tennessee, 184 L. Ed. 2d 146, 133 S. Ct. 269, 568 U.S. 880, 2012 U.S. LEXIS 6401 (U.S. 2012).

Evidence was sufficient to sustain a conviction for attempted first degree murder because the victim said defendant demanded money and drugs and yelled, “we're going to kill you guys if you don't tell us where it's at.” Defendant hit the victim with a baton, threatened to kill everyone in the cabin if he did not receive money, and although defendant did not fire the gun, he was criminally responsible for the shootings because he sought out assistance and armed the accomplice with a gun before going to the cabin. State v. Dickson, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 397 (Tenn. Crim. App. June 14, 2012), aff'd in part, rev'd in part, 413 S.W.3d 735, 2013 Tenn. LEXIS 777 (Tenn. Oct. 8, 2013), dismissed, Dickson v. Leibach, — F. Supp. 2d —, 2019 U.S. Dist. LEXIS 174459 (E.D. Tenn. Oct. 8, 2019).

Evidence was sufficient to convict defendant, as an aider and abettor, of two counts of attempted first degree murder, because a natural and probable consequence of his and his companion's attempt to obtain money and drugs by force was the companion's shooting of two unarmed men. State v. Dickson, 413 S.W.3d 735, 2013 Tenn. LEXIS 777 (Tenn. Oct. 8, 2013).

Evidence that defendant admitting being present and touching the female victim's vagina, and that he received $ 100 in proceeds from the crime permitted a reasonable trier of fact to conclude that defendant benefitted from the crime and acted in such a manner to assist such that he guilty based on a theory of criminal responsibility. State v. Peebles, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 480 (Tenn. Crim. App. June 6, 2013), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 924 (Tenn. Nov. 13, 2013).

Even if the evidence did not establish that defendant was the gunman, the jury could have properly found him responsible for his accomplice's employment of a firearm during the commission of a dangerous felony (aggravated burglary) under T.C.A. § 39-17-1324 because the evidence established that defendant aided the accomplice in committing the burglary. State v. Fayne, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 621 (Tenn. Crim. App. July 2, 2013), aff'd, 451 S.W.3d 362, 2014 Tenn. LEXIS 872 (Tenn. Oct. 27, 2014).

Evidence was sufficient to sustain defendant's convictions for especially aggravated kidnapping under an accomplice theory because defendant and the codefendant knowingly and unlawfully confined the employees so as to interfere substantially with their liberty, defendant and the codefendant accomplished those actions with handguns, and the two men were acting as a team. State v. Teats, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 18 (Tenn. Crim. App. Jan. 10, 2014), aff'd, 468 S.W.3d 495, 2015 Tenn. LEXIS 559 (Tenn. July 14, 2015).

Evidence was sufficient to support defendant's convictions based upon the theory of criminal responsibility where (1) defendant knew that co-defendants intended to carjack a vehicle, did so, and then kidnapped, raped, and killed the victims, and (2) defendant's presence and support of the endeavor showed that he furnished substantial assistance in the commission of these felony offenses. State v. Thomas, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 82 (Tenn. Crim. App. Feb. 5, 2015), rehearing denied, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 152 (Tenn. Crim. App. Feb. 25, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 675 (Tenn. Aug. 12, 2015), cert. denied, Thomas v. Tennessee, 194 L. Ed. 2d 559, 136 S. Ct. 1458, — U.S. —, 2016 U.S. LEXIS 1999 (U.S. 2016).

Jury could have found that defendant was guilty of felony murder in perpetration of or attempt to perpetrate theft, under a theory of criminal responsibility; the proof established that defendant was an active participant in the events resulting in the victim's death and not merely present before and after the offense, as defendant assisted in the commission of the offense by purposefully blocking the victim's car so that the victim could not escape the gunman. State v. Crockett, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 150 (Tenn. Crim. App. Feb. 29, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 486 (Tenn. June 23, 2016).

Evidence was sufficient to support defendant's convictions of two counts of aggravated assault as a party to the offenses where it showed that defendant was driving with his co-defendant and a passenger, the co-defendant and the passenger exited the car, and the co-defendant displayed a gun at the victims. The evidence that defendant stopped the vehicle in a traffic lane for his co-defendant to exit was sufficient to show that defendant knowingly and voluntarily shared in the criminal intent of the crime and promoted its commission. State v. Campbell, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 161 (Tenn. Crim. App. Mar. 3, 2016).

Defendant's conviction for first degree premeditated murder was supported by sufficient proof of her criminal responsibility for the victim's death, and her conviction for conspiracy to commit first degree murder was supported by sufficient proof of an agreement to commit the murder; defendant knew the killing of her husband was going to occur, she agreed to pay half of the compensation to the killer, plus defendant and her daughter were victims of abuse by the husband and wanted him dead, and they conspired to commit the murder. State v. Walls, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 263 (Tenn. Crim. App. Apr. 7, 2016), rev'd, 537 S.W.3d 892, 2017 Tenn. LEXIS 719 (Tenn. Nov. 9, 2017).

Evidence was sufficient to convict defendants of first degree felony murder and especially aggravated robbery because a witness testified that defendants left his house after agreeing to commit a robbery; both defendants were identified by an eyewitness as leaving the victim's apartment with him the last time he was seen alive by anyone other than defendants; the victim was shot multiple times, and his body was left in his vehicle; the bullets removed from the victim's body and shell casings found in his vehicle were fired by the type of pistol recovered from the second defendant's residence; and the jury was instructed regarding criminal responsibility and rejected the first defendant's argument that he was only present during the murder. State v. Jones, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 311 (Tenn. Crim. App. Apr. 15, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 578 (Tenn. Aug. 18, 2016).

Evidence was sufficient to convict defendant of aggravated robbery based on criminal responsibility because the gas station cashier alerted the victim that someone was getting inside his car; when the victim approached his car, co-defendant, who had already closed the driver's side door, brandished a weapon, causing the victim to retreat; co-defendant then drove away in the victim's car; the theft of the victim's car by violence occurred contemporaneously with the taking of that automobile; co-defendant intended to use violence against the victim, if necessary, in order to take the victim's car; defendant instructed co-defendant to get the car; and defendant was arrested driving the stolen vehicle, and he was accompanied by co-defendant. State v. Harris, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 331 (Tenn. Crim. App. May 3, 2016).

Evidence was sufficient to support defendant's aggravated robbery conviction where the victim testified that defendant and his accomplice passed the gun to each other twice, a witness testified that both defendant and his accomplice had guns during the robbery, and the evidence established that the accomplice used a gun during the robbery, and therefore the jury could have found him guilty as the principle offender or under a theory of criminal responsibility. State v. Doak, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 625 (Tenn. Crim. App. Aug. 22, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 880 (Tenn. Nov. 17, 2016).

Evidence defendant provided an accomplice with the gun used to shoot a victim and rob a store and knew the accomplice intended to rob the store supported convictions for attempted first degree murder, especially aggravated robbery, two counts of aggravated robbery, and two counts of especially aggravated assault under a theory of criminal responsibility. State v. Wallace, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 633 (Tenn. Crim. App. Aug. 25, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 46 (Tenn. Jan. 20, 2017).

Evidence was sufficient to convict defendant of second degree murder based on a theory of criminal responsibility because a rational trier of fact could have found that defendant's order that the victim endure a six-minute beating killed the victim as multiple witnesses testified that there was a hierarchy of power within the gang and a disciplinary system in place; witnesses identified defendant as a gang member and indicated he had a high rank within the gang; regardless of where the order originated, defendant delivered the order ensuring that the beating occurred; and the possibility that defendant was only relaying the order for a beating, rather than directly issuing the order himself, did not absolve him of responsibility. State v. Taylor, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 653 (Tenn. Crim. App. Aug. 31, 2016).

There was evidence showing that a robbery occurred, and therefore the evidence was sufficient to support defendant's conviction of especially aggravated robbery, where the jury could have found defendant guilty based on his own conduct or that of his codefendants, as defendant admitted he shot the victim in the head, one codefendant's statements showed that defendant participated in the robbery, and the other codefendant's testimony established that defendant admitted he had shot the victim and shared in the proceeds from the robbery. State v. Tull-Morales, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 698 (Tenn. Crim. App. Sept. 19, 2016).

Circumstantial evidence supported a finding that defendant forged the check with the intent to defraud the victim or was criminally responsible for the forgery; although no direct evidence tied defendant to the forgery of the victim's check in the amount of $ 900, the check was dated and cashed on the day after defendant stole the victim's wallet that contained her checkbook. State v. Williams, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 745 (Tenn. Crim. App. Sept. 29, 2016).

Defendant stole the victim's wallet, which contained her credit cards, which were used in six unauthorized transactions, and although no direct evidence tied defendant to the credit card transactions, the circumstantial evidence supported a finding that he knowingly obtained the victim's personal identifying information with the intent to commit an unlawful act, and in any event, the evidence was sufficient to establish that he was criminally responsible for the actions of another in the unauthorized use of the victim's credit cards and was therefore guilty of identity theft. State v. Williams, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 745 (Tenn. Crim. App. Sept. 29, 2016).

None of the shooters involved could be guilty of attempted voluntary manslaughter of one victim, as the offense requires the act of the slayer be the result of provocation instigated by the person slain; there was no credible evidence that anyone was adequately provoked by the victim that day. State v. North, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 799 (Tenn. Crim. App. Oct. 26, 2016).

Evidence was sufficient to support defendant's convictions of first degree felony murder and especially aggravated robbery where defendant told a witness that he intended to rob the victim by creating a false drug deal, he and his two co-defendants discussed robbing the victim, defendant who was armed drove his co-defendants to the victim's home, he was inside the home while the victim was shot six times, a co-defendant's blood was found in the victim's home, defendant had blood on his hands when he returned to a witness's home, they discussed the division of the proceeds, and defendant told the witness not to say anything about the offense. State v. Jones, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 908 (Tenn. Crim. App. Dec. 6, 2016), review denied and ordered not published, — S.W.3d —, 2017 Tenn. LEXIS 234 (Tenn. Apr. 12, 2017).

Evidence that the male victim was anally raped with such force that his anus was injured, after defendant robbed and kidnapped him, supported defendant's conviction for facilitation of the rape. State v. Davidson, 509 S.W.3d 156, 2016 Tenn. LEXIS 913 (Tenn. Dec. 19, 2016), cert. denied, Davidson v. Tennessee, 199 L. Ed. 2d 66, 138 S. Ct. 105, 2017 U.S. LEXIS 5551 (U.S. Oct. 2, 2017).

Evidence was sufficient to support defendant's conviction of first-degree murder in the attempt to perpetrate a robbery and attempted especially aggravated robbery because there was proof defendant was present during the crime and assisted the other suspect in committing the crime. Defendant admitted to the witness that he assisted the suspect in the murder, an eyewitness identified defendant as being present in the apartment at the time of the shooting, and his fingerprint was found on a candle holder from the victim's living room that he used to light a cigarette. State v. Taliaferro, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 41 (Tenn. Crim. App. Jan. 20, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 289 (Tenn. May 19, 2017).

Evidence was sufficient to support defendant's convictions of aggravated robbery and aggravated burglary as either a principal offender or under a theory of criminal responsibility; defendant and her friend entered the victim's apartment without her consent, defendant hit the victim on the head with a gun and demanded drugs, guns, and money, while the friend searched the apartment and took property, defendant was found with the victim's wallet in her sleeve and a handgun on her person, and the victim positively identified defendant and her friend as the robbers. State v. Sullivan, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 85 (Tenn. Crim. App. Feb. 8, 2017).

Sufficient evidence supported defendants'  robbery convictions because (1) the evidence showed the victim was threatened contemporaneously with a taking, (2) the victim's statement that the taking would have occurred despite the threat did not defeat a conviction, and (3) defendants acted in concert with one another when one tried to distract the victim while the other two stole property, which all three put in their pockets. State v. Spencer, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 551 (Tenn. Crim. App. June 28, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 765 (Tenn. Nov. 16, 2017).

Evidence was sufficient to convict defendant of aggravated robbery as a principal actor because defendant sent the victim a text message asking him to pick her up; when the victim arrived, defendant told the victim where to park, entered the truck, and turned off the truck; she then sent a text message; codefendant and a second man then approached the victim's truck; the second man pointed a gun at the victim and placed it on his stomach, and removed the victim's cell phone from his jacket pocket; the victim's GPS device, cell phone, and debit card were taken without the victim's consent; and the victim's stolen debit card was found at a nearby townhome, where defendant and the second man were found after the robbery. State v. Taylor, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 1 (Tenn. Crim. App. Jan. 3, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 272 (Tenn. May 17, 2018).

Evidence was sufficient to support defendant's convictions of aggravated robbery and aggravated assault under a theory of criminal responsibility because it showed that shortly after his co-defendant approached one victim with the gun, defendant approached the second victim, asked for her cellphone, and told her not to move. Defendant admitted that the purpose for his actions was to prevent the second victim from calling the police. State v. Williams, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 261 (Tenn. Crim. App. Apr. 5, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 594 (Tenn. Sept. 13, 2018).

Evidence was sufficient to sustain defendant's conviction for felony murder because a jury could have inferred that defendant had the intent to commit a robbery prior to, or concurrent with, the killing of the victim based on his own conduct or the conduct of his accomplices, for which he was criminally responsible; defendant admitted he planned to rob the victim, he provided the gun used in the offense, he participated in the robbery, and he fled in the victim's car after the victim was shot. State v. Collins, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 295 (Tenn. Crim. App. Apr. 18, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 489 (Tenn. Aug. 8, 2018), cert. denied, Collins v. Tennessee, — L. Ed. 2d —, — S. Ct. —, — U.S. —, 2018 U.S. LEXIS 7182 (U.S. Dec. 10, 2018).

Evidence was sufficient for a rational juror to have found defendant guilty of sale of 0.5 grams or more of cocaine because defendant gave cocaine to a confidential informant in exchange for money; by finding defendant guilty, the jury implicitly resolved any conflicts between the testimonies of the detectives and between the undercover operations report and the indictment information and discovery. State v. Woods, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 301 (Tenn. Crim. App. Apr. 19, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 506 (Tenn. Aug. 8, 2018).

Evidence supported defendant's first and second degree murder convictions under a theory of criminal responsibility for the conduct of defendant's paramour because defendant confessed that defendant and the paramour discussed killing the victim, defendant and the paramour purchased ammunition for the victim's gun, a witness testified that the victim was with defendant and the paramour, defendant confessed that both defendant and the paramour shot the victim at the paramour's direction, and defendant assisted in disposing of evidence. State v. Briggs, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 576 (Tenn. Crim. App. Aug. 2, 2018).

Evidence was sufficient to convict defendant of attempted aggravated robbery of the second victim under the theory of criminal responsibility because the jury could conclude that co-defendant intended to take property from the second victim when he brandished a gun and demanded that the second victim drop everything; co-defendant's actions constituted a substantial step towards the completion of aggravated robbery; and the jury could reasonably conclude that defendant and co-defendant were working together to rob the victims as defendant pointed his gun at the first victim and ordered him to give him everything while co-defendant pointed his gun at the second victim and told him to drop everything. State v. Brown, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 636 (Tenn. Crim. App. Aug. 20, 2018).

Evidence was sufficient to convict defendant of aggravated assault of the second victim under the theory of criminal responsibility because the second victim testified that he was shot in the hand and that scars remained on his hand from the gunshot wound; he identified co-defendant as the shooter; the jury could conclude that co-defendant either intentionally, knowingly, or recklessly fired his gun, a deadly weapon, thereby causing bodily injury to the second victim; and the jury could conclude that defendant and co-defendant were working together to rob the victims as defendant pointed his gun at the first victim and ordered him to give him everything while co-defendant pointed his gun at the second victim and told him to drop everything. State v. Brown, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 636 (Tenn. Crim. App. Aug. 20, 2018).

There was overwhelming evidence that defendant solicited, directed, or aided other people in the commission of first degree premeditated murder because witnesses identified defendant's voice on the recorded phone calls instructing family members to “get their straps and come out here,” and just prior to the shooting, the men were seen using hand gestures and getting in a formation; twelve of the thirty-one cartridge casings recovered at the crime scene had been fired from defendant's handgun. State v. Carter, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 647 (Tenn. Crim. App. Aug. 22, 2018).

Evidence supported defendant's conviction for aggravated robbery because convenience store cashiers testified that defendant and co-defendant, after communicating together, assaulted the victim together inside a convenience store and that defendant had a knife, surveillance video showed that a box cutter fell to the floor in the struggle, defendant recovered items from the victim's wallet that fell to the floor and ran, and the victim's social security card and a check stub were found inside defendant's vehicle hours later. State v. Bingham, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 760 (Tenn. Crim. App. Oct. 8, 2018).

Evidence was sufficient to support defendant's rape and incest convictions, under a criminal responsibility theory, because defendant's wife, who was the mother of their teenage son, and defendant's son, who was mentally incapacitated by an intellectual disability to an extent that the son was incapable of consenting, testified that they twice engaged in sexual intercourse in defendant's presence at the insistence of defendant, who threatened defendant's wife and on one occasion assaulted defendant's wife. State v. Sherrill, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 830 (Tenn. Crim. App. Nov. 8, 2018).

Defendant drove to the gas station and drove around the store to ensure that there were no customers, then parked while his co-defendant went inside the store with a toy gun; when he returned with money, defendant drove to purchase drugs, and thus the evidence was sufficient to establish that defendant aided in his co-defendant's commission of the aggravated robbery. State v. Adams, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 845 (Tenn. Crim. App. Nov. 15, 2018).

Evidence was sufficient to support defendant's conviction for possession with intent to sell and deliver more than .5 grams of cocaine because defendant aided codefendant by allowing defendant's house to be used as the location for a drug venture and defendant intended to benefit from providing this aid by receiving drugs, rather than cash, for defendant's personal use. State v. Moore, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 22 (Tenn. Crim. App. Jan. 14, 2019).

Evidence was sufficient to convict defendant of first degree felony murder and especially aggravated robbery based on the theory of criminal responsibility because defendant was present inside the market two minutes before two men entered; defendant's pizza order required the victim to leave the front counter; the victim stood in the pizza preparation area when the first man shot him and when the second man jumped on the front counter and removed money from one of the cash registers; and the jury could have inferred from defendant's presence and actions at the market and from his companionship with the men before and after the offenses that defendant acted with the intent to assist in the armed robbery, resulting in the victim's death. State v. Vales, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 46 (Tenn. Crim. App. Jan. 23, 2019).

Evidence was sufficient to support defendant's convictions of two counts of first-degree premeditated murder under the theory of criminal responsibility because it showed that defendant aided or attempted to aid her husband and her daughter's boyfriend in the victims'  murders. The jury could have inferred that defendant and her daughter convinced her husband that their daughter was the target of harassment and death threats from the victims and their friends, defendant wrote in emails that she wanted the victims dead, and she attempted to destroy evidence relating to the offenses and provided her husband with a false alibi after he carried out the murders. State v. Potter, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 73 (Tenn. Crim. App. Feb. 5, 2019).

Evidence that the victim saw defendant, who she knew, and others driving around in her neighborhood despite not knowing anyone who lived there, saw defendant hiding behind a tree in her yard acting as a lookout, and then saw the vehicle they had been driving in pull into her driveway and two others run from the side of her home was sufficient to support defendant's conviction for facilitation of aggravated burglary. State v. Williams, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 116 (Tenn. Crim. App. Feb. 22, 2019).

Evidence was sufficient to support defendant's conviction of aggravated robbery under a theory of criminal responsibility because he arranged a meeting with the victim to purportedly sell clothing, during the sale two men approached and attacked the victim, taking cash and a cell phone, defendant admitted he knew one of the robbers, defendant fled the scene in a red car, which picked up the two robbers minutes later, and defendant admitted he received a cell phone and posted it for sale. State v. Brewer, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 157 (Tenn. Crim. App. Mar. 11, 2019).

Evidence was sufficient to support defendant's convictions of aggravated burglary and theft of property; defendant's transfer of property stolen during the burglary was a rational connection between his possession of the stolen property and his participation in the aggravated burglary, and regardless of who went inside, defendant benefitted from the proceeds of the aggravated burglary and theft and aided his co-defendant in the commission of the offenses. State v. Odom, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 160 (Tenn. Crim. App. Mar. 12, 2019).

Evidence was sufficient to support defendant's convictions based on a theory of criminal responsibility because the proof was sufficient to establish defendant's identity as the gunman who accosted one victim outside the home, attempted to force her into the home, and, along with an armed accomplice, engaged in an exchange of gunfire with the second victim. The proof was also sufficient to show that the second victim died as a result of a bullet fired by either defendant or his accomplice. State v. Taylor, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 205 (Tenn. Crim. App. Mar. 29, 2019).

Evidence was sufficient to support defendant's identity as the perpetrator of the murder under a theory of criminal responsibility because, based on cell phone records, the evidence showed that defendant pointed the gun that was used to kill the first victim at a second victim in another area of town sometime between 6:30 p.m. when he last called the second victim and 6:49 p.m. when calls began to be exchanged between the second victim's cell phone and his brother's cell phone regarding defendant's demand for ransom. Defendant also boasted to the second victim that he had committed other murders earlier in the day. State v. Brown, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 220 (Tenn. Crim. App. Apr. 8, 2019).

Evidence was sufficient to support defendant's conviction of facilitation of aggravated burglary, as the jury could have reasonably inferred from the evidence that defendant provided substantial assistance in the burglary by opening the window but he did not originally intend to benefit from the proceeds of the burglary. State v. Kiser, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 340 (Tenn. Crim. App. June 6, 2019).

Convictions of defendant for aggravated robbery, aggravated burglary, and aggravated assault, based upon a theory of criminal responsibility, was supported by the evidence because the evidence established that defendant intended to benefit from the proceeds of the robbery of the victim and aided codefendants in planning the robbery. State v. Odom, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 419 (Tenn. Crim. App. July 12, 2019).

Evidence was sufficient to find the second defendant criminally responsible for aggravated assault as he hit and kicked the victim while the first defendant held a gun on the victim; and the victim sustained a collapsed lung and contusions from the beating. State v. Carter, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 496 (Tenn. Crim. App. Aug. 16, 2019).

Evidence was sufficient to establish defendant's identity as a perpetrator of the armed robbery and provided sufficient corroboration of the codefendant's testimony because it showed that defendant entered the market brandishing a shotgun and wearing a ski mask and gloves, he pointed the shotgun at the victim and demanded that she give him the money bag, defendant was picked up by his codefendant which was captured on video, the codefendant admitted that he was the driver and provided the police with the location of the ski mask and a glove, and defendant was the primary contributor of DNA obtained from the mask and glove. State v. Judkins, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 498 (Tenn. Crim. App. Aug. 19, 2019).

Evidence was sufficient to support defendant's conviction of first-degree murder because it showed that defendant and the codefendant planned and executed the crimes jointly and with a common intent, and that defendant told a cellmate that he “tricked” the codefendant into killing the victim. State v. Mitchell, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 744 (Tenn. Crim. App. Nov. 19, 2019).

Evidence was sufficient to convict defendant of especially aggravated robbery because defendant and the accomplice entered the victim's apartment in order to rob him; the accomplice pointed the gun at the victim before shooting him and taking his cell phone; and defendant was criminally responsible for the accomplice's actions as he was engaged in a criminal endeavor to rob the victim. State v. Dodson, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 10 (Tenn. Crim. App. Jan. 13, 2020).

Evidence was sufficient to convict defendant of felony murder because defendant and his accomplice were asked by a third party to steal marijuana from the victim; the accomplice fatally shot the victim using defendant's gun; and defendant intended to promote or assist in the commission of the robbery and was criminally responsible for the victim's death. State v. Dodson, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 10 (Tenn. Crim. App. Jan. 13, 2020).

State established beyond a reasonable doubt that defendant was criminally responsible for his codefendant's conduct because he shared in the codefendant's intent to rob the victim by approaching the passenger side of the victim's car and pointing his gun at the witness while the codefendant approached the victim's side and pointed a gun at him, and both defendant and the codefendant fired shots when the victim attempted to drive away. State v. Lawrence, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 65 (Tenn. Crim. App. Feb. 5, 2020).

Evidence supported defendant's conviction of theft; she participated in a scheme to obtain money from the human services department through a ministry becoming a sponsor in a summer food services program. Defendant claimed to be the program administrator but auditors found no evidence that she purchased large volumes of food, and while a church employee claimed defendant was not involved, the jury could have found defendant was directing or assisting that employee in taking the money. State v. Jives-Nealy, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 156 (Tenn. Crim. App. Feb. 28, 2020).

There was sufficient evidence to sustain defendant's convictions for aggravated battery and murder, including evidence that defendant and his co-defendants forced their way into the victim's apartment armed with a gun, the victim was unarmed and surrounded by the men demanding to know where her son was, and when she failed to provide an answer, a co-defendant shot the victim in the head at the defendant's direction. State v. Fletcher, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 160 (Tenn. Crim. App. Mar. 2, 2020).

Evidence was sufficient to convict defendant of first degree premeditated murder and first degree felony murder, which were merged, based on criminal responsibility as defendant acted with the intent to promote or assist in the commission of the crimes and aided or attempted to aid in the crimes because defendant initiated the robbery by placing a telephone pizza order which lured the victim to the scene; while the victim attempted to deliver the pizza order to the residence, two men waited until the victim returned to his car to approach the victim; defendant heard a gunshot coming from the direction of the men; and defendant repeatedly ran over the victim to ensure he was dead prior to taking his vehicle. State v. Miller, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 405 (Tenn. Crim. App. June 11, 2020).

Evidence was sufficient to support defendant's five convictions for especially aggravated kidnapping because defendant and one of the perpetrators entered the home in the middle of the night, the perpetrator entered the victims'  bedroom and held them at gunpoint with a shotgun, defendant stood in the doorway in the living room and held two other victims at gunpoint using a pistol, and two witnesses testified that they did not feel as if they could move around in or leave the residence while defendant pointed the pistol at them. State v. Kiser, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 411 (Tenn. Crim. App. June 16, 2020).

18. —Insufficient.

There was insufficient evidence to show that defendant furnished substantial assistance in initiating the process to manufacture methamphetamine because the evidence related to methamphetamine production was discovered in a shed located, and there was no evidence defendant ever entered the shed or that he was present at the owner's house when the lab was active; the only evidence presented purportedly linking defendant to the methamphetamine lab was that he was involved with the owner. State v. Hammack, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 237 (Tenn. Crim. App. Mar. 31, 2016).

19. Sentencing.

Because both of defendant's prior convictions for attempted robbery and facilitation of first degree murder, under T.C.A. §§ 39-11-117, 39-11-403(a), 39-11-402(2), 39-12-101, 39-13-401, included an element of actual or threatened bodily injury or serious bodily injury, the trial court properly considered them to be separate convictions and found that defendant was a Range II multiple offender under T.C.A. § 40-35-106. State v. Theus, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 613 (Tenn. Crim. App. July 12, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 794 (Tenn. Nov. 16, 2017).

20. Severance.

Trial court did not err by refusing to sever the charge of setting fire to personal property from the charges of felony murder and especially aggravated robbery because all of the offenses were charged in a single indictment and evidence that defendant and the co-defendant burned the victim's car was relevant and admissible as evidence of their attempt to cover up the earlier murder and robbery. That there was evidence to suggest the co-defendant bore the bulk of responsibility for the burning offense availed the defendant no relief because she was clearly criminally responsible for the co-defendant's conduct. State v. Baker, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 668 (Tenn. Crim. App. July 31, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 806 (Tenn. Nov. 16, 2017).

NOTES TO DECISIONS

1. Construction.

The fact that T.C.A. § 39-11-403 referred to T.C.A. § 39-11-402(b), even though T.C.A. § 39-11-402 had been changed to show (1)-(3) rather than (a)-(c) at the time of their indictment and trial, did not warrant granting defendants a new trial. State v. Hicks, 835 S.W.2d 32, 1992 Tenn. Crim. App. LEXIS 49 (Tenn. Crim. App. 1992), appeal denied, — S.W.2d —, 1993 Tenn. LEXIS 303 (Tenn. Aug. 2, 1993).

Application of T.C.A. § 39-11-403 is appropriate where an offender participates substantially in a felony but lacks the intent to promote, assist or benefit from the offense. State v. Flemming, 19 S.W.3d 195, 2000 Tenn. LEXIS 157 (Tenn. 2000).

Facilitation is a lesser-included offense when a defendant is charged with criminal responsibility for the conduct of another. State v. Fowler, 23 S.W.3d 285, 2000 Tenn. LEXIS 345 (Tenn. 2000).

Where defendant is convicted of facilitation of first degree murder, the jury found only that the defendant knowingly furnished substantial assistance in the murder while knowing that others intended to murder the victim. State v. Jackson, 52 S.W.3d 661, 2001 Tenn. Crim. App. LEXIS 142 (Tenn. Crim. App. 2001).

Under T.C.A. § 39-11-403, a defendant is never convicted of a generic “facilitation of a felony” charge, but is always found to have facilitated a specific underlying felony; therefore, where defendant pleaded guilty to being a felon in possession of a firearm, his sentence was properly enhanced for a prior conviction of a crime of violence because his prior conviction involved a guilty plea to facilitation of aggravated assault, and the underlying felony of aggravated assault was a crime of violence as it presented a serious risk of physical injury to another person. United States v. Chandler, 419 F.3d 484, 2005 FED App. 347P, 2005 U.S. App. LEXIS 17205 (6th Cir. Tenn. 2005).

Lawyer who pleaded guilty to facilitation of a felony violation of T.C.A. § 48-2-121 (now T.C.A. § 48-1-121) was guilty of a serious crime within the meaning of ABA Stand. Imposing Law. Sanctions § 5.11. Given aggravating factors of his prior discipline, his experience practicing law, and his lack of remorse, disbarment was appropriate. Talley v. Bd. of Prof'l Responsibility, 358 S.W.3d 185, 2011 Tenn. LEXIS 971 (Tenn. Oct. 26, 2011).

Facilitation under T.C.A. § 39-11-403 is not controlled-substance offense because elements required to prove facilitation are not substantially equivalent to elements of aiding and abetting, conspiracy, and attempt United States v. Woodruff, 726 F.3d 845, 2013 FED App. 220P, 2013 U.S. App. LEXIS 16678 (6th Cir. Aug. 13, 2013).

Under T.C.A. §§ 39-11-403(a), 39-11-402(2), a defendant must know that an individual intended to commit a specified felony and the defendant must furnish substantial assistance to that individual without intending to promote or assist in the commission of the specified felony or benefit in the proceeds. State v. Theus, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 613 (Tenn. Crim. App. July 12, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 794 (Tenn. Nov. 16, 2017).

Under T.C.A. §§ 39-11-403(a), because first degree murder includes an element of serious bodily injury, facilitation of first degree murder includes such an element. State v. Theus, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 613 (Tenn. Crim. App. July 12, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 794 (Tenn. Nov. 16, 2017).

Facilitation of criminal attempt is not statutorily defined, but reading the two statutes together, the State would have had to prove that defendant (1) knew that another intended to commit criminal attempt of possession of cocaine with intent to sell or deliver, and (2) knowingly furnished substantial assistance in the commission of the criminal attempt of possession of cocaine with intent to sell or deliver. State v. Champion, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 50 (Tenn. Crim. App. Jan. 30, 2020).

2. Relationship to Federal Law.

Defendant's prior conviction under T.C.A. §§ 39-11-402 and 39-11-403 for facilitation of the burglary of a building was not a “violent felony” under the “otherwise” clause of 18 U.S.C. § 924(e)(2)(B) of the Armed Career Criminal Act. Although the offense of facilitation of a burglary created a serious risk of violence, it did not qualify as purposeful, violent, and aggressive; to be guilty of facilitation of a burglary under § 39-11-403, an individual had to have acted without the intent required for criminal responsibility for the ultimate criminal act. United States v. Vanhook, 640 F.3d 706, 2011 FED App. 95P, 2011 U.S. App. LEXIS 7884 (6th Cir. Apr. 18, 2011).

Where defendant appealed his 120-month sentence for violating 18 U.S.C. § 922(g), while facilitation under Tennessee law was not a controlled-substance offense, district court's conclusion was not plain error that his conviction for facilitation of the sale of cocaine, in violation of T.C.A. § 39-11-403, was controlled-substance offense as there was no controlling law before district court. United States v. Woodruff, 726 F.3d 845, 2013 FED App. 220P, 2013 U.S. App. LEXIS 16678 (6th Cir. Aug. 13, 2013).

Where defendant appealed his sentence for violating 18 U.S.C. § 922(g), a district court erred in its conclusion that his conviction for facilitation under Tennessee law, T.C.A. § 39-11-403, was a controlled-substance offense; but the error was not plain because the state of the law was both uncertain and not obvious at time of its decision and at time of appellate review. The district court had no controlling law before it. United States v. Woodruff, 735 F.3d 445, 2013 FED App. 311A, 2013 U.S. App. LEXIS 22002 (6th Cir. Oct. 29, 2013).

3. Proof Required.

Before the accused can be convicted of the facilitation of a felony, the state must prove the commission of a specified felony and the assistance the accused gave to the person committing that felony. State v. Parker, 932 S.W.2d 945, 1996 Tenn. Crim. App. LEXIS 167 (Tenn. Crim. App. 1996), overruled in part, State v. King, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 192 (Tenn. Crim. App. Mar. 4, 2013), overruled in part, State v. King, 432 S.W.3d 316, 2014 Tenn. LEXIS 351 (Tenn. Apr. 23, 2014).

4. Section as Lesser Included Offense.

T.C.A. § 39-11-403 can be a lesser included offense of a greater charge, and such offense may be given in a charge to the jury where its application is fairly raised by the evidence in the case or, where by the nature of the offense charged, the section would logically be seen as a lesser included offense. State v. Hicks, 835 S.W.2d 32, 1992 Tenn. Crim. App. LEXIS 49 (Tenn. Crim. App. 1992), appeal denied, — S.W.2d —, 1993 Tenn. LEXIS 303 (Tenn. Aug. 2, 1993).

In a prosecution for first-degree murder, the trial court did not err by not charging on the lesser included offense of facilitation of murder where neither the state's proof nor defendant's proof raised sufficient evidence to support the charge. State v. Spadafina, 952 S.W.2d 444, 1996 Tenn. Crim. App. LEXIS 803 (Tenn. Crim. App. 1996).

The offenses of facilitation and solicitation were found to be lesser-included offenses of criminal responsibility for first-degree murder as charged in the defendant's indictment. State v. Burns, 6 S.W.3d 453, 1999 Tenn. LEXIS 572 (Tenn. 1999), superseded by statute as stated in, State v. Campbell, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 860 (Tenn. Crim. App. Oct. 20, 2015), superseded by statute as stated in, State v. Whitehair, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 171 (Tenn. Crim. App. Mar. 8, 2016), superseded by statute as stated in, State v. Harris, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 331 (Tenn. Crim. App. May 3, 2016), superseded by statute as stated in, State v. Beaty, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 842 (Tenn. Crim. App. Nov. 8, 2016).

Because the offense of theft is wholly incorporated into the offense of aggravated robbery, and because facilitation of theft is thereby incorporated into the offense of facilitation of robbery, the offenses are the “same” for double jeopardy purposes. State v. Hayes, 7 S.W.3d 52, 1999 Tenn. Crim. App. LEXIS 129 (Tenn. Crim. App. 1999).

Facilitation of aggravated robbery and especially aggravated robbery are lesser-included offenses of especially aggravated robbery. State v. Flemming, 19 S.W.3d 195, 2000 Tenn. LEXIS 157 (Tenn. 2000).

Failure to charge the defendant as criminally responsible instead of jointly liable as a principal was insignificant; therefore, facilitation of felony murder was a lesser-included offense. State v. Ely, 48 S.W.3d 710, 2001 Tenn. LEXIS 583 (Tenn. 2001).

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. State v. Ely, 48 S.W.3d 710, 2001 Tenn. LEXIS 600 (Tenn. 2001), cert. denied, Bowers v. Tennessee, 534 U.S. 979, 122 S. Ct. 408, 151 L. Ed. 2d 310, 2001 U.S. LEXIS 9880 (2001).

The charge of facilitation of a felony in relation to defendant's involvement in a murder was not an immediately lesser included offense to felony murder because conviction required a separate and distinct theory from that of a principal offender or someone who was criminally responsible for the conduct of another. State v. Locke, 90 S.W.3d 663, 2002 Tenn. LEXIS 474 (Tenn. 2002).

Trial court did not err by failing to instruct the jury on facilitation, T.C.A. § 39-11-403(a), as a lesser-included offense during defendant's criminal trial, because the evidence did not support the notion that defendant merely furnished substantial assistance in the commission of premeditated first-degree murder and especially aggravated kidnapping, without intending to promote or assist the commission of those offenses. The evidence reasonably supported only one of the following conclusions: (1) Defendant was not present at the apartment at which the victim was beaten, was not involved in the victim's murder or the gang that killed the victim, and therefore was completely innocent; (2) Defendant was innocent because, while he gave orders, he did not order anyone to kill or kidnap the victim; or (3) Defendant was guilty by criminal responsibility, T.C.A. § 39-11-402, because he ordered other gang members to kidnap and kill the victim. State v. Robinson, 146 S.W.3d 469, 2004 Tenn. LEXIS 843 (Tenn. 2004), rehearing denied, — S.W.3d —, 2004 Tenn. LEXIS 912 (Tenn. 2004), cert. denied, Robinson v. Tennessee, 126 S. Ct. 1429, 164 L. Ed. 2d 132, 546 U.S. 1214, 2006 U.S. LEXIS 1839 (2006).

5. Failure to Convict Criminally Responsible Defendant.

The jury's failure to convict codefendant of sexual battery did not bar the defendant's conviction for facilitation of sexual battery. State v. Gennoe, 851 S.W.2d 833, 1992 Tenn. Crim. App. LEXIS 622 (Tenn. Crim. App. 1992), rehearing denied, — S.W.2d —, 1992 Tenn. Crim. App. LEXIS 648 (Tenn. Crim. App. Aug. 5, 1992), appeal denied, — S.W.2d —, 1992 Tenn. LEXIS 648 (Tenn. Nov. 30, 1992).

6. Jury Instructions.

In determining whether an instruction on a lesser-included offense must be given, a court must: (1) determine whether any evidence exists that reasonable minds could accept as to the lesser-included offense and (2) determine whether the evidence viewed in the light most favorable to the existence of the lesser-included offense is legally sufficient to support a conviction for the lesser-included offense. State v. Fowler, 23 S.W.3d 285, 2000 Tenn. LEXIS 345 (Tenn. 2000).

Trial court did not err in charging a jury on the lesser-included offense of facilitation of possession of marijuana with intent to deliver where the evidence presented at trial was sufficient to support conviction for facilitation of possession of marijuana when the vehicle defendant was in was initially stopped by the police, one or more of the occupants had been recently smoking marijuana due to the strong odor and it was defendant, not his friend, who was in physical control of the marijuana due to his proximity to the brown paper bag. State v. Nash, 104 S.W.3d 495, 2003 Tenn. LEXIS 434 (Tenn. 2003).

Petitioner failed to meet his burden of showing that he was denied effective assistance of counsel at trial by counsel's failure to request a facilitation instruction as the evidence did not support a facilitation instruction. The evidence at trial established that petitioner had the intent, at a minimum, to promote or assist in the commission of the sale of a Schedule I controlled substance within a school zone. Bryant v. State, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 702 (Tenn. Crim. App. Aug. 16, 2013), modified, 460 S.W.3d 513, 2015 Tenn. LEXIS 182 (Tenn. Mar. 13, 2015).

Petitioner failed to meet his burden of showing that he was denied effective assistance of counsel at trial by counsel's failure to request a facilitation instruction as counsel's decision not to pursue such an instruction was a strategic one designed to have petitioner acquitted of the charged offenses based on the defense of entrapment. Bryant v. State, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 702 (Tenn. Crim. App. Aug. 16, 2013), modified, 460 S.W.3d 513, 2015 Tenn. LEXIS 182 (Tenn. Mar. 13, 2015).

Petitioner failed to meet his burden of showing that he was denied effective assistance of counsel at trial by counsel's failure to request a facilitation instruction as counsel's failure to request such an instruction was not prejudicial. A reasonable jury would not have convicted petitioner of facilitation instead of the charged offenses because petitioner knowingly committed the offense of sale of a Schedule I controlled substance, which took place within a school zone. Bryant v. State, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 702 (Tenn. Crim. App. Aug. 16, 2013), modified, 460 S.W.3d 513, 2015 Tenn. LEXIS 182 (Tenn. Mar. 13, 2015).

Defendant failed to prove by clear and convincing evidence that trial counsel was deficient for failing to request a jury instruction on facilitation as a lesser-included offense of sale and delivery of a Schedule I controlled substance within 1,000 feet of a school; there was no evidence from which a reasonable jury could conclude that defendant merely facilitated the drug sales because he set the price for the drugs, acquired the drugs, accepted payment for the drugs, and delivered the drugs. Bryant v. State, 460 S.W.3d 513, 2015 Tenn. LEXIS 182 (Tenn. Mar. 13, 2015), overruled in part, Moore v. State, 485 S.W.3d 411, 2016 Tenn. LEXIS 176 (Tenn. Mar. 16, 2016).

Trial court's jury instructions were proper because defendant did not object to the court's decision not to charge attempt as a lesser-included offense, the evidence established only a completed crime, the jury was properly charged on flight and criminal responsibility, and any error in not charging facilitation was harmless beyond a reasonable doubt. State v. Daniels, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 198 (Tenn. Crim. App. Mar. 16, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 445 (Tenn. July 20, 2017).

Despite defendant's desire to have an all or nothing charge in his dogfighting case, the trial court did not err in charging the jury on facilitation because the evidence supported the instruction. State v. Trent, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 233 (Tenn. Crim. App. Mar. 30, 2017).

Counsel was not ineffective for failing to instruct the jury on the lesser included offense of facilitation of aggravated robbery because there was no evidence that someone else committed the robbery and that petitioner knew and gave them substantial assistance, as the State offered evidence that petitioner committed the robbery, which included DNA evidence and petitioner's admissions to two witnesses. Brown v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 674 (Tenn. Crim. App. Aug. 31, 2018).

Petitioner failed to show that his trial counsel was ineffective for failing to object the jury instructions on criminal responsibility because the instruction incorporated the language of this section. Gray v. State, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 301 (Tenn. Crim. App. May 8, 2019).

Petitioner failed to establish that counsel provided ineffective assistance in failing to request an instruction on the lesser included offense of facilitation because the proof did not support an instruction on facilitation, as there was no evidence at trial regarding the existence or role of a third party. Instead, the evidence at trial established that petitioner, and not the confidential informant or a third party, sold the drugs. Carero v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 240 (Tenn. Crim. App. Apr. 14, 2020).

7. Sentencing.

District court correctly determined that a defendant's prior conviction, pursuant to a guilty plea, of facilitation of aggravated burglary constituted a “violent felony” under 18 U.S.C. § 924(e) because the crime presented a risk of physical injury sufficient to be classified as a “violent felony.” United States v. Sawyers, 409 F.3d 732, 2005 FED App. 255P, 2005 U.S. App. LEXIS 11032 (6th Cir. Tenn. 2005), cert. denied, 126 S. Ct. 457, 163 L. Ed. 2d 347, 546 U.S. 950, 2005 U.S. LEXIS 7535 (U.S. 2005).

Defendant's prior conviction in Tennessee of facilitation of armed robbery constituted a violent felony for purposes of the Armed Career Criminal Act, 18 U.S.C. § 924(e). United States v. Nance, 481 F.3d 882, 2007 FED App. 126P, 2007 U.S. App. LEXIS 8000 (6th Cir. Tenn. 2007), rehearing denied, — F.3d —, — FED App. —, 2007 U.S. App. LEXIS 20455 (6th Cir. Aug. 2, 2007), cert. denied, 169 L. Ed. 2d 532, 128 S. Ct. 680, 552 U.S. 1052, 2007 U.S. LEXIS 12533 (2007).

Habeas corpus court did not err in summarily dismissing petitioner's application for a writ of habeas corpus because the petition failed to state a cognizable claim for habeas corpus relief, regardless of which offense petitioner pleaded guilty; had petitioner pleaded guilty to criminal responsibility for facilitation of attempted first degree murder, his sentence would still be below the maximum 30-year punishment authorized for a Class B felony, and the sentence would be legal on the face of the judgment, T.C.A. § 40-35-111(b)(2). Dykes v. Sexton, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 119 (Tenn. Crim. App. Feb. 24, 2012).

In connection with defendant's convictions of facilitation of dogfighting, the trial court did not err in ordering defendant to serve 60 days of his concurrent sentences of 11 months and 29 days in confinement and the remainder on probation; he had a prior criminal history of felony conviction and several misdemeanor convictions and he violated parole on at least one occasion. State v. Trent, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 233 (Tenn. Crim. App. Mar. 30, 2017).

Trial court erred when classifying defendant's facilitation of delivery conviction as a Class B felony and requiring 100 percent service of the minimum sentence. State v. Pinegar, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 386 (Tenn. Crim. App. May 16, 2017).

Five year sentence, one year beyond the minimum under T.C.A. § 40-35-112(b)(4) for facilitation of robbery under T.C.A. §§ 39-13-401(a), 39-11-403(a) was proper; the trial court properly considered the factors under T.C.A. § 40-35-210(b) and applied enhancement factors under T.C.A. § 40-35-114(1), (8), (13)(C) related to defendant's criminal history, his failure to comply with conditions of a sentence involving release into the community, and the fact that he was released on federal probation at the time he committed the offense. State v. Shane, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 419 (Tenn. Crim. App. May 19, 2017).

Because both of defendant's prior convictions for attempted robbery and facilitation of first degree murder, under T.C.A. §§ 39-11-117, 39-11-403(a), 39-11-402(2), 39-12-101, 39-13-401, included an element of actual or threatened bodily injury or serious bodily injury, the trial court properly considered them to be separate convictions and found that defendant was a Range II multiple offender under T.C.A. § 40-35-106. State v. Theus, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 613 (Tenn. Crim. App. July 12, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 794 (Tenn. Nov. 16, 2017).

8. Evidence.

Where defendant mother was charged with facilitation (T.C.A. § 39-11-403) in connection with defendant father's aggravated child abuse, evidence of his prior assaults against her was irrelevant and improperly admitted against her because such evidence did not demonstrate that it was more probable that she knew he intended to abuse their child. State v. Gomez, 367 S.W.3d 237, 2012 Tenn. LEXIS 291 (Tenn. Apr. 24, 2012).

There was insufficient evidence to show that defendant furnished substantial assistance in initiating the process to manufacture methamphetamine because the evidence related to methamphetamine production was discovered in a shed located, and there was no evidence defendant ever entered the shed or that he was present at the owner's house when the lab was active; the only evidence presented purportedly linking defendant to the methamphetamine lab was that he was involved with the owner. State v. Hammack, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 237 (Tenn. Crim. App. Mar. 31, 2016).

9. —Sufficient.

The evidence was sufficient for the jury to convict the defendant where he provided the weapon, transported his codefendant to the location of the robbery, and shared in the money taken. State v. Parker, 932 S.W.2d 945, 1996 Tenn. Crim. App. LEXIS 167 (Tenn. Crim. App. 1996), overruled in part, State v. King, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 192 (Tenn. Crim. App. Mar. 4, 2013), overruled in part, State v. King, 432 S.W.3d 316, 2014 Tenn. LEXIS 351 (Tenn. Apr. 23, 2014).

The evidence was sufficient to find that defendant was guilty of aggravated robbery and facilitation of aggravated assault where defendant aided juvenile in the commission of the aggravated robbery by driving the juvenile to the pharmacy, where the juvenile committed these offenses, and then provided a means for the juvenile to escape by picking him up and driving him home. State v. Harris, 30 S.W.3d 345, 1999 Tenn. Crim. App. LEXIS 1072 (Tenn. Crim. App. 1999).

Four gang members who engaged in the kidnapping of two gang members were criminally responsible for the ensuing death of one of the gang members. Witnesses testified that defendants beat the unarmed victim with bats, jack irons, crowbars, and hammers. State v. Mickens, 123 S.W.3d 355, 2003 Tenn. Crim. App. LEXIS 107 (Tenn. Crim. App. 2003), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 805 (Tenn. Sept. 2, 2003).

Evidence was sufficient to support the guilty verdict because a reasonable jury could have determined that defendant facilitated the possession of cocaine with intent to deliver in a drug-free school zone; two bags of cocaine were found by officers in a bag close to where defendant had been sitting, and he acknowledged that one of the bags was his. State v. Gibson, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 484 (Tenn. Crim. App. June 23, 2015), aff'd in part, rev'd in part, 506 S.W.3d 450, 2016 Tenn. LEXIS 832 (Tenn. Nov. 16, 2016).

Evidence was sufficient to support defendant's convictions of two counts of first degree murder where it showed that defendant and his family had a lengthy disagreement with the victims and their friends, defendant told a witness he would put a bullet through one of the victim's head, both victims were shot in the head, bullets found in defendant's truck were consistent with the caliber of bullets found at the scene, documents of email and social media messages relative to the desire to kill the victims and defendant's willingness to help found shredded in defendant's truck, defendant's accomplice admitted both he and defendant were involved in the murders, and defendant implicated himself in the crimes during a phone call with his wife. State v. Potter, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 174 (Tenn. Crim. App. Mar. 8, 2016).

Evidence supported defendant's conviction for facilitation of initiation of a process to manufacture methamphetamine because defendant lived in the camper under which an active methamphetamine laboratory was found, purchased an excessive number of cold tablets containing the essential ingredient for the manufacture of methamphetamine, and claimed in his own testimony that he bought the tablets for the owner of the property where defendant's camper was located to use to cook the methamphetamine that defendant craved. State v. Fletcher, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 798 (Tenn. Crim. App. Oct. 26, 2016).

Evidence was sufficient to support defendant's conviction for facilitation of possession with intent to deliver .5 grams or more of cocaine within 1,000 feet of a school because defendant was in close proximity to the duffel bags containing cocaine, defendant admitted ownership of one of the bags, defendant's student identification was found in one of the bags, and defendant knowingly provided substantial assistance to another individual and that individual's drug operation by possessing and safeguarding the drugs. State v. Gibson, 506 S.W.3d 450, 2016 Tenn. LEXIS 832 (Tenn. Nov. 16, 2016).

Defendant's conviction for facilitating a violation of the sex offender registry was supported by evidence that defendant knew that her daughter's boyfriend was a convicted sex offender who was not supposed to live with her daughter's three children, but defendant allowed the boyfriend to live in her house with her daughter and the children. State v. Patrick, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 956 (Tenn. Crim. App. Dec. 29, 2016).

Sufficient evidence supported defendant's conviction of facilitation of dogfighting, given that the residence in question was owned by defendant's son, but defendant used the address on his checks, driver's license, and vehicle registrations, dogs were found with injuries and scars consistent with dogfighting, an expert testified that many items found during the search related to dogfighting, including training items, nutritional supplements, and a “crash kit” for treating a dog's wounds after a fight, and defendant was seen coming and going from the residence four times during one month and twice he spent the night. State v. Trent, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 233 (Tenn. Crim. App. Mar. 30, 2017).

Three witnesses plus the victim identified defendant as the individual who approached the victim in a home and asked him to go outside, and once outside, a group of men surrounded the victim and forced him to the ground while others took his boots and cash; a rational jury could have found that defendant facilitated the robbery of the victim, for purposes of T.C.A. §§ 39-13-401(a), 39-11-403(a). State v. Shane, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 419 (Tenn. Crim. App. May 19, 2017).

In defendant's case, the underlying felony was first degree murder, which was clearly a violent felony for purposes of T.C.A. § 39-17-1307(b)(1)(A), and thus facilitation of first degree murder for purposes of T.C.A. § 39-11-403(a) was likewise a violent felony and the evidence was sufficient to support defendant's conviction. State v. Theus, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 613 (Tenn. Crim. App. July 12, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 794 (Tenn. Nov. 16, 2017).

Evidence was sufficient to support defendants'  convictions of aggravated rape, facilitation of aggravated rape, aggravated robbery, and especially aggravated robbery because it showed that not only did defendants both rape the victim, they did so absent any force or coercion from the co-defendant, they joined their co-defendants in taking cell phones, TVs, and a laptop from the victims, although the co-defendant wielded a gun during the crimes it was never turned on defendants, and the co-defendant's threats of violence were directed solely at the victims. State v. Denton, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 743 (Tenn. Crim. App. Aug. 21, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 856 (Tenn. Dec. 8, 2017).

Evidence was sufficient that defendant constructively possessed cocaine found behind the backseat of a police car after a police sergeant transported defendant and the driver of the car in which defendant was a passenger to a police station. During the traffic stop defendant was arrested after a police officer discovered dihydrocodeinone tablets that defendant had secreted in the crotch of defendant's pants and defendant's hands were handcuffed in front of defendant's body, while the driver's hands were handcuffed behind defendant's back. State v. Bynum, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 924 (Tenn. Crim. App. Oct. 20, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 132 (Tenn. Feb. 14, 2018).

Defendant's conviction of facilitation of felony murder under T.C.A. §§ 39-13-202, 39-11-403, with kidnapping and theft as the underlying felonies under T.C.A. §§ 39-13-302, 39-14-103 was affirmed, as jurors could have found that defendant and his accomplice intended to deprive the victim of his vehicle when they forced him into the backseat, and the kidnapping and theft were still in progress at the time the victim was shot because he was still resisting confinement and refusing to consent to the taking of his property. State v. Harris, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1016 (Tenn. Crim. App. Dec. 7, 2017).

Evidence was sufficient to support a conviction for facilitation of attempted second degree murder under T.C.A. § 39-13-210(a)(1), 39-12-101(a), 39-11-403; a reasonable juror could have found that defendant knew his accomplice intended to knowingly kill the victim and defendant substantially assisted his accomplice by handing him the gun, and the victim's eventual death did not mean that defendant's conviction for attempt could not stand. State v. Harris, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1016 (Tenn. Crim. App. Dec. 7, 2017).

Evidence that the victim saw defendant, who she knew, and others driving around in her neighborhood despite not knowing anyone who lived there, saw defendant hiding behind a tree in her yard acting as a lookout, and then saw the vehicle they had been driving in pull into her driveway and two others run from the side of her home was sufficient to support defendant's conviction for facilitation of aggravated burglary. State v. Williams, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 116 (Tenn. Crim. App. Feb. 22, 2019).

Evidence was sufficient to convict the second defendant of facilitation of aggravated robbery because the second defendant provided substantial assistance to the first defendant by beating the victim while the first defendant held him at gunpoint and then robbed him of his necklace, rings, money, wallet, cell phones, and tattoo equipment. State v. Carter, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 496 (Tenn. Crim. App. Aug. 16, 2019).

Evidence was sufficient to sustain defendant's conviction of facilitation of criminal attempt of possession of cocaine with intent to sell or deliver; defendant was a regular overnight guest at the home and was present when the cocaine, which he constructively possessed, was seized, and a rational juror could have found that he provided substantial assistance to co-defendant by using a measuring cup that tested positive for trace amounts of cocaine in attempting to manufacture cocaine for sale or delivery. State v. Champion, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 50 (Tenn. Crim. App. Jan. 30, 2020).

NOTES TO DECISIONS

1. Failure to Convict Criminally Responsible Codefendant.

The jury's failure to convict codefendant of sexual battery did not bar the defendant's conviction for facilitation of sexual battery. State v. Gennoe, 851 S.W.2d 833, 1992 Tenn. Crim. App. LEXIS 622 (Tenn. Crim. App. 1992), rehearing denied, — S.W.2d —, 1992 Tenn. Crim. App. LEXIS 648 (Tenn. Crim. App. Aug. 5, 1992), appeal denied, — S.W.2d —, 1992 Tenn. LEXIS 648 (Tenn. Nov. 30, 1992).

Trial court did not err in charging a jury on the lesser-included offense of facilitation of possession of marijuana with intent to deliver where the evidence presented at trial was sufficient to support conviction for facilitation of possession of marijuana when the vehicle defendant was in was initially stopped by the police, one or more of the occupants had been recently smoking marijuana due to the strong odor and it was defendant, not his friend, who was in physical control of the marijuana due to his proximity to the brown paper bag. State v. Nash, 104 S.W.3d 495, 2003 Tenn. LEXIS 434 (Tenn. 2003).

It is not a defense for a person convicted under a theory of criminal responsibility that the person for whose conduct the defendant is criminally responsible has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense or different type or class of offense, or is immune from prosecution. State v. Odom, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 419 (Tenn. Crim. App. July 12, 2019).

2. Trial of Accessory After the Fact.

Supreme Court of Tennessee held that the common law rule that a person charged as an accessory after the fact could not be tried prior to the principal offender being convicted, unless the person charged as an accessory after the fact expressly consented to waive the common law rule, had not been abrogated by the Tennessee Criminal Sentencing Reform Act, and it declined to judicially abrogate it. State v. Hawk, 170 S.W.3d 547, 2005 Tenn. LEXIS 656 (Tenn. 2005).

3. Ineffective Assistance Claims.

Proof at trial revealed the existence of another actor in the criminal episode for whose conduct the petitioner was criminally responsible; trial counsel was not deficient for failing to challenge the petitioner's convictions on that basis and he was not entitled to post-conviction relief in this regard. Cole v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 355 (Tenn. Crim. App. May 11, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 715 (Tenn. Sept. 26, 2016).

4. Principal Offender.

State v. Farner opinion does not stand for the proposition that the principal offender must be known, only that there must be one. Cole v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 355 (Tenn. Crim. App. May 11, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 715 (Tenn. Sept. 26, 2016).

NOTES TO DECISIONS

1. Principal's Conviction.

The common law rule that a person charged as an accessory after the fact could not be tried prior to the principal offender being convicted, unless the person charged as an accessory after the fact expressly consented to waive the common law rule, had not been abrogated by the Tennessee Criminal Sentencing Reform Act, 1989 Tenn. Pub. Acts ch. 591, and it declined to judicially abrogate it. State v. Hawk, 170 S.W.3d 547, 2005 Tenn. LEXIS 656 (Tenn. 2005).

4. Comparison to Other Crimes.

Defendant qualified as a Range II offender and the trial court did not err in considering defendant's convictions in South Carolina for harboring a fugitive and assault of an aggravated nature as felonies; the trial court properly considered the elements of harboring a fugitive under South Carolina law and accessory after the fact under Tennessee law in determining that defendant's harboring conviction would constitute a felony in Tennessee, plus he conceded that his South Carolina assault conviction would also be considered a felony in Tennessee. State v. Ward, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 142 (Tenn. Crim. App. Feb. 23, 2018).

39-11-501. Insanity.

1. It is an affirmative defense to prosecution that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature or wrongfulness of the defendant's acts. Mental disease or defect does not otherwise constitute a defense. The defendant has the burden of proving the defense of insanity by clear and convincing evidence.
2. As used in this section, “mental disease or defect” does not include any abnormality manifested only by repeated criminal or otherwise antisocial conduct.
3. No expert witness may testify as to whether the defendant was or was not insane as set forth in subsection (a). Such ultimate issue is a matter for the trier of fact alone.

Acts 1989, ch. 591, § 1; 1995, ch. 494, § 1.

Sentencing Commission Comments.

This section codifies the criteria of criminal insanity or mental responsibility which has been followed in Tennessee since the ruling in Graham v. State, 547 S.W.2d 531 (Tenn. 1977). The commission explicitly recognizes a distinction between those defendants who are capable of controlling their conduct and those who are not. The finder of fact must determine not only whether the defendant suffered from a mental disease or defect but also whether the defendant's condition rendered him or her incapable of conforming his or her conduct to lawful standards or of appreciating the wrongfulness of that conduct. Thus, offenders who have the capacity and reason to control their behavior or appreciate the distinctions between lawful and unlawful conduct are responsible for their criminal acts.

Subsection (b) follows the Graham  rule by denying the defense to psychopaths, i.e., those repeat offenders without other medically discernible symptoms.

Compiler's Notes. Acts 1995, ch. 494, § 2 provided that the amendments by that act apply to all offenses committed on or after July 1, 1995.

The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Cross-References. Justification excluding criminal responsibility, title 39, ch. 11, part 6.

Rule Reference. This section is referred to in the Advisory Commission Comments under Rule 704 of the Tennessee Rules of Evidence.

Textbooks. Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 3-11-1, 3-12.2-6.

Law Reviews.

Criminal Appellate Procedure — Insanity Defense — The Proper Standard of Review When Reviewing a Jury Decision on Sanity (Kevin Thompson), 70 Tenn. L. Rev. 1213 (2003).

Madness Alone Punishes the Madman: The Search For Moral Dignity in the Court's Competency Doctrine as Applied in Capital Cases, 79 Tenn. L. Rev. 461 (2012).

Paine on Procedure: Expert Opinion and the Insanity Defense (Donald F. Paine), 49 Tenn. B.J. 27 (2013).

Symposium: Competency for Execution: The Implications of a Communicative Model of Retribution, 76 Tenn. L. Rev. 713 (2009).

The Criminalization of Mental Illness: How Theoretical Failures Create Real Problems in the Criminal Justice System, 62 Vand. L. Rev. 1053 (2009).

The Red Velvet Swing Murder (Donald F. Paine), 35 No. 2 Tenn. B.J. 26 (1999).

Attorney General Opinions. Constitutionality of proposed “guilty but excused from responsibility” verdict, OAG 99-116 (5/14/99).

39-11-502. Ignorance or mistake of fact.

1. Except in prosecutions for violations of §§ 39-13-504(a)(4) and 39-13-522, ignorance or mistake of fact is a defense to prosecution if the ignorance or mistake negates the culpable mental state of the charged offense.
2. Although a person's ignorance or mistake of fact may constitute a defense to the offense charged, the person may be convicted of the offense for which the person would be guilty if the fact were as the person believed.
3. It shall not be a defense to prosecution for a violation of § 39-13-514 or § 39-13-529(a), (b)(1) or (b)(2) that the person charged was ignorant or mistaken as to the age of a minor.

Acts 1989, ch. 591, § 1; 1995, ch. 495, § 1; 2013, ch. 337, § 1.

Sentencing Commission Comments.

This section recognizes a defense where the mental element of the offense is negated by the defendant's ignorance or mistake of fact. It is a narrow defense and does not include a mistake regarding the existence or meaning of a criminal law. See McGuire v. State, 26 Tenn. 54 (1846).

Compiler's Notes. The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Law Reviews.

“Let’s Talk About Sexting, Baby”: A Mens Rea-Centered Approach to the Sexting Issue in Tennessee, 42 U. Mem. L. Rev. 1139 (2012).

“No Provincial or Transient Notion”: The Need for a Mistake of Age Defense in Child Rape Prosecutions, 57 Vand. L. Rev. 693 (2004).

The Language of Mens Rea, 67 Vand. L. Rev. 1327 (2014).

39-11-503. Intoxication.

1. Except as provided in subsection (c), intoxication itself is not a defense to prosecution for an offense. However, intoxication, whether voluntary or involuntary, is admissible in evidence, if it is relevant to negate a culpable mental state.
2. If recklessness establishes an element of an offense and the person is unaware of a risk because of voluntary intoxication, the person's unawareness is immaterial in a prosecution for that offense.
3. Intoxication itself does not constitute a mental disease or defect within the meaning of § 39-11-501. However, involuntary intoxication is a defense to prosecution, if, as a result of the involuntary intoxication, the person lacked substantial capacity either to appreciate the wrongfulness of the person's conduct or to conform that conduct to the requirements of the law allegedly violated.
4. The following definitions apply in this part, unless the context clearly requires otherwise:
   1. “Intoxication” means disturbance of mental or physical capacity resulting from the introduction of any substance into the body;
   2. “Involuntary intoxication” means intoxication that is not voluntary; and
   3. “Voluntary intoxication” means intoxication caused by a substance that the person knowingly introduced into the person's body, the tendency of which to cause intoxication was known or ought to have been known.

Acts 1989, ch. 591, § 1.

Sentencing Commission Comments.

Under prior Tennessee law, intoxication was not a defense unless it was so extreme as to negate a finding of the specific intent which was an essential element of the offense charged. See State v. Adkins, 653 S.W.2d 708 (Tenn. 1983). Subsection (a) retains this rule, permitting intoxication to be considered whenever the intoxication prevents the defendant from forming the required mental state.

Subsection (b) makes it clear that voluntary intoxication can never negate awareness of a risk where recklessness is sufficient to establish a culpable mental state of an offense.

Involuntary intoxication may suffice to negate any essential element of a defense including recklessness. The commission recognizes that a defendant who is not responsible for his or her intoxicated condition and either cannot control his or her own conduct or is unable to appreciate its wrongfulness because of the intoxicated condition should be excused from criminal responsibility. Subsection (c) also preserves the rule that intoxication does not in and of itself constitute a mental disease or defect, sufficient to constitute insanity, unless the intoxication is found to be involuntary.

The definition of intoxication is sufficiently broad to include all substances which alter mental or physical capacity, including alcohol, marijuana, glue sniffing, and heroin.

Compiler's Notes. The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Law Reviews.

Law On the Rocks: The Intoxication Defenses are Being Eighty-Sixed, 55 Vand. L. Rev. 607 (2002).

39-11-504. Duress.

1. Duress is a defense to prosecution where the person or a third person is threatened with harm that is present, imminent, impending and of such a nature to induce a well-grounded apprehension of death or serious bodily injury if the act is not done. The threatened harm must be continuous throughout the time the act is being committed, and must be one from which the person cannot withdraw in safety. Further, the desirability and urgency of avoiding the harm must clearly outweigh the harm sought to be prevented by the law proscribing the conduct, according to ordinary standards of reasonableness.
2. This defense is unavailable to a person who intentionally, knowingly, or recklessly becomes involved in a situation in which it was probable that the person would be subjected to compulsion.

Acts 1989, ch. 591, § 1.

Sentencing Commission Comments.

Consistent with existing Tennessee law and a long history of Anglo-American tradition, this section recognizes the defense of duress. This rare defense is present when a defendant commits an offense because another person threatens death or serious injury if the offense is not committed.

The standard sufficient to excuse criminal conduct is that the compulsion must be immediate and imminently present and of such nature to produce a well-grounded fear of death or serious bodily harm. In addition, there must be no reasonable opportunity to escape the compulsion without committing an offense. See State v. Robinson, 622 S.W.2d 62 (Tenn. Crim. App. 1980).

Subsection (b) retains the view that this defense is unavailable to people who recklessly place themselves in a situation where compulsion was probable. See United States v. Campbell, 675 F.2d 815 (6th Cir. 1982), cert. denied, 459 U.S. 850 (1984).

Compiler's Notes. The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Cross-References. Mental states, §§ 39-11-106, 39-11-301, 39-11-302.

Law Reviews.

The Prevalence and Use of Criminal Defenses: A Preliminary Study (Neil P. Cohen, Michael G. Johnson, Tracy B. Henley), 60 Tenn. L. Rev. 957 (1993).

39-11-505. Entrapment.

It is a defense to prosecution that law enforcement officials, acting either directly or through an agent, induced or persuaded an otherwise unwilling person to commit an unlawful act when the person was not predisposed to do so. If a defendant intends to rely on the defense of entrapment, the defendant shall give to the district attorney general a notice comparable to that required for an insanity defense under Rule 12.2 of the Tennessee Rules of Criminal Procedure.

Acts 1989, ch. 591, § 1.

Sentencing Commission Comments.

In 1980, the Tennessee supreme court recognized the defense of entrapment in the case of State v. Jones, 598 S.W.2d 209 (Tenn. 1980). In addition, the defendant must give notice of his or her intent to rely on the defense of entrapment to the district attorney general.

Compiler's Notes. The sentencing commission terminated June 30, 1995. Sentencing Commission Comments have been retained, but do not reflect 1995 or subsequent legislation.

Cross-References. Insanity defense, § 39-11-501.

Law Reviews.

The Prevalence and Use of Criminal Defenses: A Preliminary Study (Neil P. Cohen, Michael G. Johnson, Tracy B. Henley), 60 Tenn. L. Rev. 957 (1993).

Witch Doctors and Battleship Stalkers: The Edges of Exculpation in Entrapment Cases, 52 Vand. L. Rev. 1869 (1999).

Part 6
Justification Excluding Criminal Responsibility