Chapter 1
General Provisions [Repealed]

Part 1
Definitions and Construction [Repealed]

39-1-101 — 39-1-105. [Repealed.]

Compiler's Notes. Former part 1, §§ 39-1-10139-1-105 (Code 1858, § 4596; Acts 1873, ch. 57, § 1; Shan., §§ 6437, 7185; Code 1932, §§ 10749, 10751, 10752, 10755; Acts 1968, ch. 513, § 1; T.C.A. (orig. ed.), §§ 39-101 — 39-103, 39-106, 39-114), concerning definitions and construction, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 11, part 1 of this title.

Part 2
Penalties [Repealed]

39-1-201, 39-1-202. [Repealed.]

Compiler's Notes. Former part 2, §§ 39-1-201, 39-1-202 (Code 1858, §§ 5232, 10756 (deriv. Acts 1829, ch. 23, § 67); Shan., § 7205; mod. Code 1932, § 10753; T.C.A. (orig. ed.), §§ 39-104, 39-105), concerning penalties, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 11, part 1 of this title.

Part 3
Accessories [Repealed]

39-1-301 — 39-1-307. [Repealed.]

Compiler's Notes. Former part 3, §§ 39-1-30139-1-307 (Code 1858, §§ 4588-4592, 4594 (deriv. Acts 1829, ch. 23, §§ 62-64; deriv. Acts 1845-1846, ch. 73, § 1); Shan., §§ 6429-6431, 6433, 6435; Code 1932, §§ 10758-10762, 10765; mod. C. Supp. 1950, § 10760; T.C.A. (orig. ed.), §§ 39-107 — 39-111, 39-113), concerning accessories, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 11, part 4 of this title.

Part 4
Solicitation [Repealed]

39-1-401 — 39-1-404. [Repealed.]

Compiler's Notes. Former part 4, §§ 39-1-40139-1-404 (Acts 1973, ch. 62, §§ 1-4; T.C.A., §§ 39-115 — 39-118), concerning solicitation, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 12, part 1 of this title.

Part 5
Attempts [Repealed]

39-1-501 — 39-1-507. [Repealed.]

Compiler's Notes. Former part 5, §§ 39-1-50139-1-507 (Code 1858, §§ 4630, 4796; Shan. Supp., §§ 6471, 6700; Acts 1923, ch. 14, § 2; Code 1932, §§ 10801, 11076, 11248; Acts 1933, ch. 151, § 3; 1939, ch. 38, § 3; 1941, ch. 158, § 4; C. Supp. 1950, §§ 6798a24b1, 10895, 10895.3, 11043.5 (Williams, §§ 10919.3, 11043.4); Acts 1957, ch. 168, § 3; 1968, ch. 535, § 4; T.C.A. (orig. ed.), §§ 39-503, 39-603, 39-1403, 39-2523, 39-3305, 39-4410, 39-5109), concerning attempts, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 12, part 1 of this title.

Part 6
Conspiracy [Repealed]

39-1-601 — 39-1-615. [Repealed.]

Compiler's Notes. Former part 6, §§ 39-1-60139-1-615 (Code 1858, §§ 4789-4792, 5535 (deriv. Acts 1829, ch. 23, § 66; deriv. Acts 1923, ch. 38, § 31); Acts 1897, ch. 52, §§ 1, 2; Shan. Supp., §§ 6693-6696a2, 7554; Code 1932, §§ 11063-11069, 12153; Acts 1941, ch. 158, § 5; 1949, ch. 216, § 1; C. Supp. 1950, §§ 11043.6, 11063 (Williams, § 11043.5); Acts 1955, ch. 174, § 1; 1957, ch. 85, §§ 3, 4; 1968, ch. 484, § 3; 1968, ch. 535, § 7; 1979, ch. 210, § 1; 1979, ch. 318, § 10; 1980, ch. 864, § 1; 1981, ch. 126, § 1; 1983, ch. 255, § 1; T.C.A. (orig. ed.), §§ 39-1101 — 39-1109, 39-1407, 39-1408, 39-4411, 39-5103, 39-5112, 41-709, 41-852), concerning conspiracy, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 12, part 1 of this title.

Part 7
Class X Felonies [Repealed]

39-1-701 — 39-1-704. [Repealed.]

Compiler's Notes. Former part 7, §§ 39-1-70139-1-704 (Acts 1979, ch. 318, §§ 1-3, 26; 1980, ch. 463, § 1; T.C.A., §§ 39-5401 — 39-5404), concerning Class X felonies, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989.

Part 8
Habitual Criminals [Repealed]

39-1-801 — 39-1-807. [Repealed.]

Compiler's Notes. Former part 8, §§ 39-1-80139-1-807 (Acts 1939, ch. 22, §§ 1-7; mod. C. Supp. 1950, §§ 11863.1-11863.7; Acts 1973, ch. 212, §§ 1-3; T.C.A. (orig. ed.), §§ 40-2801 — 40-2807), concerning habitual criminals, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989.

Part 9
Forfeiture of Criminal Proceeds [Repealed]

39-1-901 — 39-1-903. [Repealed.]

Compiler's Notes. Former part 9, §§ 39-1-90139-1-903 (Acts 1983, ch. 159, §§ 1-3), concerning forfeiture of criminal proceeds, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 11, part 1 of this title.

Part 10
Racketeer Influenced and Corrupt Organizations [Repealed]

39-1-1001 — 39-1-1010. [Repealed.]

Compiler's Notes. Former part 10, §§ 39-1-100139-1-1010 (Acts 1986, ch. 633, §§ 2-11), concerning racketeer influenced and corrupt organizations, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 12, part 2 of this title.

Chapter 2
Offenses Against the Person [Repealed]

Part 1
Assaults and Injuries [Repealed]

39-2-101 — 39-2-119. [Repealed.]

Compiler's Notes. Former part 1, §§ 39-2-10139-2-119 (Code 1858, §§ 4606, 4608, 4609, 4626-4630, 4637, 4642, 5223, 5224 (deriv. Acts 1829, ch. 23, §§ 52, 54, 55; 1849-1850, ch. 109, § 1; 1851-1852, ch. 36; 1851-1852, ch. 123, §§ 9, 10); Acts 1869-1870, ch. 54, § 3; 1917, ch. 54, §§ 1, 3; Shan., §§ 6447, 6449, 6450, 6467-6471, 6478, 6483a1, 6483a3, 6670, 7196, 7197; Code 1932, §§ 10777-10779, 10797-10801, 10810, 10814, 10816, 10825, 11033, 11759, 11760; Acts 1963, ch. 162, § 1; 1968, ch. 604, §§ 1-5; 1968, ch. 607, § 1; 1973, ch. 352, § 1; 1974, ch. 575, § 4; 1976, ch. 565, § 1; 1977, ch. 68, § 1; 1977, ch. 142, §§ 1, 2; 1977, ch. 338, § 1; 1979, ch. 210, § 1; 1979, ch. 318, §§ 11, 14; 1980, ch. 505, § 1; 1982, ch. 804, § 1; 1984, ch. 940, § 1; 1985, ch. 300, §§ 1, 2; 1986, ch. 762, § 1; 1988, ch. 753, § 1; T.C.A. (orig. ed.), §§ 39-601 — 39-604, 39-607 — 39-615, 39-2803, 39-3601, 39-3612, 39-3619, 39-5114, 39-5117, 41-851), concerning assaults and injuries, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 13, part 1 of this title.

Part 2
Homicide [Repealed]

39-2-201 — 39-2-235. [Repealed.]

Compiler's Notes. Former part 2, §§ 39-2-20139-2-235 (Code 1858, §§ 4593, 4597-4605, 4641, 4642, (deriv. Acts 1829, ch. 23, §§ 2-8; 1845-1846, ch. 73; 1851-1852, ch. 123, §§ 11, 12); Acts 1913 (1st Ex. Sess.), ch. 36, § 1; 1915 (Vol. II), ch. 181, § 1; 1917, ch. 14, § 1; 1917, ch. 54, §§ 2, 4; Shan., §§ 6434, 6438-6446, 6483a2, 6483a4; Acts 1919, ch. 4, § 1; 1919, ch. 5, §§ 2, 3; Code 1932, §§ 10763, 10767-10776, 10815, 10817; Acts 1973, ch. 192, § 2; 1974, ch. 462, §§ 1-4; 1977, ch. 51, §§ 1-6; 1978, ch. 927, § 1; 1979, ch. 318, §§ 4, 5; 1981, ch. 33, § 1; 1986, ch. 606, § 1; 1987, ch. 204, § 1; T.C.A. (orig. ed.), §§ 39-2401 — 39-2414, 39-3602), concerning homicide, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 13, part 2 of this title.

Part 3
Kidnapping and Hostages [Repealed]

39-2-301 — 39-2-305. [Repealed.]

Compiler's Notes. Former part 3, §§ 39-2-30139-2-305 (Code 1858, § 4619; Acts 1901, ch. 31, § 1; Shan., §§ 6465, 6465a1; Code 1932, §§ 10793-10795; Acts 1935, ch. 49, § 1; C. Supp. 1950, § 10795; Acts 1955, ch. 71, § 1; 1973, ch. 24, § 1; 1979, ch. 318, § 1; 1981, ch. 487, § 1; 1983, ch. 348, § 1; 1984, ch. 916, §§ 1, 2), concerning kidnapping and hostages, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 13, part 3 of this title.

Part 4
Libel [Repealed]

39-2-401 — 39-2-404. [Repealed.]

Compiler's Notes. Former part 4, §§ 39-2-40139-2-404 (Code 1858, §§ 4760-4764 (deriv. Const. 1834, art. 1, § 19); Shan., §§ 6658-6662; Code 1932, §§ 11021-11025; T.C.A. (orig. ed.), §§ 39-2701 — 39-2704), concerning libel, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989.

Part 5
Robbery [Repealed]

39-2-501, 39-2-502. [Repealed.]

Compiler's Notes. Former part 5, §§ 39-2-501, 39-2-502 (Code 1858, §§ 4631, 4632 (deriv. Acts 1829, ch. 23, § 20); Shan., §§ 6472-6473a2; Acts 1925, ch. 128, § 1; Code 1932, §§ 10802-10805; Acts 1953, ch. 66, § 1; 1955, ch. 72, § 1; 1973, ch. 192, § 4; 1979, ch. 318, § 8; 1981, ch. 343, § 1; T.C.A., §§ 39-3901, 39-3902), concerning robbery, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 13, part 4 of this title.

Part 6
Sexual Offenses [Repealed]

39-2-601 — 39-2-642. [Repealed.]

Compiler's Notes. Former part 6, §§ 39-2-60139-2-630, 39-2-63639-2-638, and 39-2-64039-2-642 (Code 1858, §§ 4616, 4618, 4843, 4846 (deriv. Acts 1829, ch. 23, § 7; Acts 1871, ch. 56, § 3; Shan., §§ 6460, 6462, 6764, 6769; Code 1932, §§ 10789, 10790, 11184, 11189; Acts 1943, ch. 157, §§ 7-9; C. Supp. 1950, §§ 11190.6-11190.8 (Williams, §§ 11190.7-11190.9); Acts 1979, ch. 429, §§ 1-10; 1980, ch. 463, §§ 2, 3; 1980, ch. 788, §§ 1-8; 1982, ch. 568, § 3; 1982, ch. 798, § 1; 1983, ch. 142, § 1; 1986, ch. 774, §§ 2-9, 12-15; T.C.A. (orig. ed.), §§ 39-707, 39-3506 — 39-3508, 39-3510, 39-3511, 39-3701 — 39-3711, 39-3714, 39-3721, 39-3722), concerning sexual offenses, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 13, part 5 of this title.

Former §§ 39-2-63139-2-635 (Acts 1943, ch. 157, §§ 2-6; C. Supp. 1950, §§ 11190.1-11190.5 (Williams, §§ 11190.2-11190.6); Acts 1969, ch. 243, § 1; 1972, ch. 581, §§ 1, 2; 1977, ch. 397, § 1; 1979, ch. 216, § 1; T.C.A. (orig. ed.), §§ 39-3501 — 39-3505), concerning prostitution or assignation, were repealed by Acts 1986, ch. 774, § 11.

Former § 39-2-639 (Code 1858, § 4845; Shan., § 6768; Code 1932, § 11188; T.C.A. (orig. ed.), § 39-3509), concerning enticing a female to a house of ill fame, was repealed by Acts 1986, ch. 774, § 11.

Part 7
Threats, Intimidation and Extortion [Repealed]

39-2-701 — 39-2-710. [Repealed.]

Compiler's Notes. Former part 7, §§ 39-2-70139-2-710 (Code 1858, § 4633; Acts 1869-1870, ch. 54, §§ 1, 2, 6; 1907, ch. 427, § 1; 1915, ch. 15, §§ 1, 2; Shan., §§ 6474, 6668, 6669, 6673, 6673a1, 6673a4, 6673a6; mod. Code 1932, §§ 10806, 11031, 11032, 11034-11036, 11038; Acts 1981, ch. 63, § 1; 1981, ch. 105, § 1; T.C.A. (orig. ed.), §§ 39-2801, 39-2802, 39-2804 — 39-2806, 39-4301, 39-4302, concerning threats, intimidation and extortion, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 14, part 1 and ch. 17, part 3 of this title.

Chapter 3
Offenses Against Property [Repealed]

Part 1
Animals [Repealed]

39-3-101 — 39-3-131. [Repealed.]

Compiler's Notes. Former part 1, §§ 39-3-10139-3-131 (Code 1858, §§ 4657, 4658, 4686-4688 (deriv. Acts 1803, ch. 9, § 2; 1847-1848, ch. 67, §§ 1, 2); Acts 1865-1866, ch. 1, § 1; 1865-1866, ch. 3, § 2; 1873, ch. 87, § 1; 1889, ch. 16, §§ 1, 2; 1895, ch. 75, §§ 2, 3; 1903, ch. 162, § 1; 1917, ch. 55, § 1; 1919, ch. 164, §§ 1, 2; Shan., §§ 2857-2868, 2870, 6499-6501, 6501a3, 6501a4, 6508, 6509, 6527, 6528, 6552-6554; Code 1932, §§ 5091-5102, 5104, 10845, 10849, 10850, 10864, 10865, 10891, 10892, 10931-10933; Acts 1947, ch. 104, § 1; C. Supp. 1950, §§ 10891, 10892; Acts 1957, ch. 66, §§ 1-3; 1963, ch. 125, § 1; 1965, ch. 280, § 1; 1971, ch. 314, §§ 1-3; 1977, ch. 230, § 1; 1978, ch. 650, § 1; 1978, ch. 651, § 1; 1981, ch. 451, § 1; 1983, ch. 155, § 1; 1988, ch. 480, § 1; T.C.A. (orig. ed.), §§ 39-401 — 39-415, 39-417 — 39-426, 39-4211, 39-4213, 39-4214, 39-4221), concerning animals, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 14, parts 1 and 2 of this title.

Part 2
Arson and Burning [Repealed]

39-3-201 — 39-3-227. [Repealed.]

Compiler's Notes. Former part 2, §§ 39-3-20139-3-226 (Code 1858, §§ 4669, 4770; Acts 1907, ch. 397, §§ 1-3, 15; Shan., §§ 2883a75b4-2883a75b6, 2883a75b17, 6532, 6533; Code 1932, §§ 10900, 10901, 10903-10905, 10909; Acts 1931, ch. 21, §§ 1-3; 1933, ch. 151, §§ 1, 2; 1937, ch. 280, § 11; 1939, ch. 213, § 1; C. Supp. 1950, §§ 10893, 10894, 10902.1, 10905.1-10905.3; Acts 1963, ch. 25, § 1; 1963, ch. 26, § 1; 1963, ch. 80, § 1; 1967, ch. 89, § 1; 1967, ch. 219, § 1; 1968, ch. 478, § 1; 1968, ch. 535, §§ 1-3, 5, 6, 8; 1979, ch. 68, § 3; 1979, ch. 318, § 9; 1981, ch. 440, §§ 1, 2; 1982, ch. 664, § 1; 1984, ch. 944, § 1; 1986, ch. 651, §§ 3-5; 1988, c. 991, § 1; T.C.A. (orig. ed), §§ 39-501, 39-502, 39-504 — 39-514, 39-518, 39-5106 — 39-5108, 39-5110, 39-5111, 39-5113, 39-5114), concerning arson and burning, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 14, part 3 of this title.

Former § 39-3-227 (Acts 1963, ch. 80, § 1; T.C.A., § 39-2215), concerning false alarms, was repealed by Acts 1983, ch. 329, § 2.

Part 3
Bad Checks [Repealed]

39-3-301 — 39-3-310. [Repealed.]

Compiler's Notes. Former part 3, §§ 39-3-30139-3-310 (Acts 1967, ch. 322, §§ 1-7, 9; 1969, ch. 186, §§ 1, 2; 1972, ch. 704, §§ 1, 2; 1976, ch. 387, § 1; 1977, ch. 160, § 1; 1978, ch. 642, § 1; 1983, ch. 61, § 1; 1988, ch. 868, §§ 1-4; T.C.A., §§ 39-1959 — 39-1964, 39-1966, 39-1967), concerning bad checks, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 14, part 1 of this title.

Part 4
Burglary [Repealed]

39-3-401 — 39-3-408. [Repealed.]

Compiler's Notes. Former part 4, §§ 39-3-40139-3-408 (Code 1858, §§ 4672-4676 (deriv. Acts 1829, ch. 23, §§ 19, 30; 1857-1858, ch. 84, § 1); Acts 1871, ch. 39, § 1; 1885, ch. 19, § 1; Shan., §§ 6535-6541; Code 1932, §§ 10910-10914, 10917, 10918; Acts 1941, ch. 65, § 1; 1953, ch. 63, § 1; 1953, ch. 65, § 1; 1955, ch. 321, § 1; 1967, ch. 83, § 1; 1971, ch. 2, §§ 1, 2; 1973, ch. 227, §§ 1-4; 1981, ch. 495, § 1; 1982, ch. 908, §§ 1-7; 1986, ch. 628, § 1; T.C.A. (orig. ed.), §§ 39-901 — 39-905, 39-907, 39-908, 39-910), concerning burglary, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 14, part 4 of this title.

Part 5
Credit Card Crimes [Repealed]

39-3-501 — 39-3-513. [Repealed.]

Compiler's Notes. Former part 5, §§ 39-3-50139-3-513 (Acts 1961, ch. 68, §§ 1, 3-5; 1968, ch. 583, § 1; 1969, ch. 121, §§ 1-11; 1975, ch. 55, § 1; T.C.A., §§ 39-1943 — 39-1955, 39-1968 —39-1978), concerning credit card crimes, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 14, part 1 of this title.

Part 6
Debit Card Crimes [Repealed]

39-3-601 — 39-3-615. [Repealed.]

Compiler's Notes. Former part 6, §§ 39-3-60139-6-615 (Acts 1977, ch. 144, §§ 1-15; T.C.A., §§ 39-1972 — 39-1986), concerning debit card crimes, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 14, part 1 of this title.

Part 7
Explosives [Repealed]

39-3-701 — 39-3-711. [Repealed.]

Compiler's Notes. Former part 7, §§ 39-3-70139-3-711 (Code 1858, §§ 1694, 1695; Acts 1919, ch. 87, §§ 1, 2; 1921, ch. 45, § 1; Shan. Supp., §§ 3009, 3010, 6538a1, 6538a2; Code 1932, §§ 5228, 5229, 10915, 10916, 10919; Acts 1939, ch. 38, §§ 1, 2; C. Supp. 1950, §§ 10895.1, 10895.2 (Williams, §§ 10919.1, 10919.2); Acts 1957, ch. 85, §§ 1, 2, 4-6; 1957, ch. 168, §§ 1, 2; 1959, ch. 235, §§ 1, 2; 1963, ch. 47, § 1; 1965, ch. 142, § 1; 1976, ch. 793, § 2; 1979, ch. 318, § 13; 1981, ch. 17, § 1; T.C.A. (orig. ed.), §§ 39-906, 39-909, 39-1401, 39-1402, 39-1404 — 39-1406, 39-1408 — 39-1412, 39-4922), concerning explosives, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 13, part 1, ch. 14, part 3 and ch. 17, part 13 of this title.

Part 8
Forgery and Counterfeiting [Repealed]

39-3-801 — 39-3-821. [Repealed.]

Compiler's Notes. Former part 8, §§ 39-3-80139-3-821 (Code 1858, §§ 4718-4730, 4734-4741 (deriv. Acts 1829, ch. 23, §§ 23, 31-41); Shan., §§ 6596-6608, 6612-6619; Code 1932, §§ 10979-10991, 10994-11002; Acts 1935, ch. 52, § 2; C. Supp. 1950, § 11157.2; T.C.A. (orig. ed.), §§ 39-1702 — 39-1722), concerning forgery and counterfeiting, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 14, part 1 of this title.

Part 9
Fraud and False Dealing [Repealed]

39-3-901 — 39-3-954. [Repealed.]

Compiler's Notes. Former part 9, §§ 39-3-90139-3-954 (Code 1858, §§ 4523, 4524, 4695, 4701-4705, 4709, 4711-4717, 4825-4827 (deriv. Acts 1741, ch. 47, § 8; 1841-1842, ch. 48, §§ 1, 3, 23; 1843-1844, ch. 190; 1855-1856, ch. 113, §§ 17, 19, 22); Acts 1859-1860, ch. 67, §§ 1, 2; 1879, ch. 131, § 1; 1883, ch. 164, §§ 1, 2, 4; 1883, ch. 223, § 1; 1887, ch. 31, § 1; 1901, ch. 4, §§ 1-3; 1901, ch. 130, §§ 1, 2; 1905, ch. 329, §§ 1, 2; 1909, ch. 509, §§ 1, 2; 1909, ch. 548, §§ 1, 2; 1913, ch. 42, § 1; 1913 (1st Ex. Sess.), ch. 35, § 1; Acts 1915, ch. 106, §§ 1, 2; 1915, ch. 138, § 1; 1915, ch. 173, § 1; Shan., §§ 6559, 6568-6573, 6573a1, 6573a2, 6580-6586, 6588-6591, 6734, 6735a2, 6735a4, 6735a5, 6740, 6741, 6742a1-6742a7, 6888a31-6888a33, 6888a68, 6888a69; Shan. Supp., §§ 3473a39b1, 3473a39b2; Acts 1921, ch. 14, §§ 1, 2; 1923, ch. 7, §§ 29, 59, 64; 1925, ch. 62, §§ 1, 2; mod. Code 1932, §§ 10938, 10949-10956, 10961, 10963-10970, 10972-10975, 11133-11145, 11147, 11148, 11150-11153, 11155, 11156, 11390-11392, 11411, 11412; Acts 1935, ch. 52, § 1; 1943, ch. 17, § 1; mod. C. Supp. 1950, §§ 1157.1, 10949, 11150; Acts 1955, ch. 282, § 1; 1957, ch. 332, § 1; 1959, ch. 86, § 1; 1961, ch. 68, §§ 2, 5; 1961, ch. 77, § 1; 1963, ch. 84, §§ 1-8; 1965, ch. 84, § 1; 1965, ch. 124, § 1; 1967, ch. 329, §§ 1-3; 1968, ch. 497, § 1; 1968, ch. 583, § 1; 1971, ch. 171, § 2; 1972, ch. 514, § 1; 1972, ch. 856, § 1; 1974, ch. 558, § 1; 1974, ch. 765, § 1; 1975, ch. 192, § 1; 1975, ch. 194, §§ 1-4; 1978, ch. 746, §§ 1-6; 1979, ch. 220, §§ 1-4, 6; 1979, ch. 242, §§ 1, 2; 1980, ch. 608, § 1; 1985, ch. 122, § 1; 1987, ch. 29, § 1; 1988, ch. 917, §§ 1, 2; 1989, ch. 283, § 1; 1989, ch. 426, § 1; T.C.A. (orig. ed.), §§ 39-1901 — 39-1903, 39-1906 — 39-1947, 39-1949, 39-1951, 39-1952, 39-1954 — 39-1958, 39-1968, 39-1970, 39-1971, 39-1979, 39-1980, 39-1989, 39-4226 — 39-4228, 39-4237, 39-5201; T.C.A., §§ 39-1904, 39-1905, 39-1910, 39-1949, 39-1951, 39-1956, 39-1987 — 39-1989, 39-4241 — 39-4243, 39-4252, 39-4812), concerning fraud and false dealing, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 14, part 1 of this title.

Part 10
Litter Control [Repealed]

39-3-1001 — 39-3-1010. [Repealed.]

Compiler's Notes. Former part 10, §§ 39-3-100139-3-1010 (Acts 1971, ch. 123, §§ 1-7; 1973, ch. 254, § 1; 1974, ch. 455, § 1; 1976, ch. 391, § 1; 1976, ch. 724, §§ 1, 2; 1980, ch. 768, § 1; 1981, ch. 442, § 1; 1981, ch. 513, §§ 1-3; 1986, ch. 852, § 1; 1988, ch. 794, § 1; 1988, ch. 1007, §§ 3, 4; T.C.A., §§ 39-4536 — 39-4544), concerning litter control, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 14, part 5 of this title.

Part 11
Theft, Larceny and Embezzlement [Repealed]

39-3-1101 — 39-3-1136. [Repealed.]

Compiler's Notes. Former part 11, §§ 39-3-110139-3-1136 (Code 1858, §§ 4677-4681, 4683, 4685, 4691-4694, 4696, 4697, 4700, 4708, 4710 (deriv. Acts 1829, ch. 23, §§ 23, 25-29, 49; 1841-1842, ch. 48, § 7; 1843-1844, ch. 190); Acts 1875, ch. 31, §§ 1-3; 1875, ch. 36, § 1; 1877, ch. 50, § 1; 1883, ch. 188, §§ 1, 2; Shan., §§ 6542-6547, 6549-6551, 6555-6558, 6560-6564, 6567, 6576, 6578, 6592; Shan. Supp., §§ 652024, 652025; Acts 1923, ch. 56, §§ 1, 2; mod. Code 1932, §§ 10879, 10880, 10920-10926, 10928-10930, 10934-10937, 10939-10941, 10944, 10958, 10959, 10962, 10976; Acts 1957, ch. 124, §§ 1-5; 1957, ch. 301, § 1; 1959, ch. 11, § 1; 1963, ch. 190, § 1; 1965, ch. 56, § 1; 1967, ch. 214, §§ 1-3; 1967, ch. 261, §§ 1, 2; 1968, ch. 469, §§ 1, 2; 1968, ch. 609, § 1; 1969, ch. 251, § 1; 1971, ch. 166, §§ 1-6; 1972, ch. 676, § 1; 1975, ch. 191, § 1; 1979, ch. 219, § 1; 1980, ch. 636, § 7; 1981, ch. 265, § 1; 1983, ch. 326, § 1; 1983, ch. 358, § 1; 1984, ch. 725, § 1; 1984, ch. 882, §§ 1-3; 1984, ch. 1008, §§ 1, 2; 1986, ch. 828, §§ 1-11; 1989, ch. 275, §§ 1-6; 1989, ch. 453, §§ 1, 2; T.C.A. (orig. ed.), §§ 39-4201 — 39-4209, 39-4215 — 39-4220, 39-4222 — 39-4225, 39-4229, 39-4232 — 39-4236; T.C.A., §§ 39-4238 — 39-4240, 39-4244 — 39-4251), concerning theft, larceny and embezzlement, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 14, part 1 of this title.

Part 12
Trespass and Loitering [Repealed]

39-3-1201 — 39-3-1212. [Repealed.]

Compiler's Notes. Former part 12, §§ 39-3-120139-3-1212 (Code 1858, § 4652 (deriv. Acts 1847-1848, ch. 45, § 1); Shan., §§ 1598, 1599, 6496, 6497a1; Acts 1889, ch. 249, §§ 1, 2; 1911, ch. 27, § 1; Code 1932, §§ 10831, 10840, 2665, 2666; Acts 1941, ch. 137, §§ 1, 2; 1949, ch. 63, §§ 1, 2; C. Supp. 1950, §§ 11203.1, 11203.2 (Williams, §§ 11412.4, 11412.5), 11203.3 (Williams, § 10831.1); Acts 1959, ch. 37, § 1; 1968, ch. 554, §§ 1, 2; 1969, ch. 257, § 1; 1970, ch. 442, § 1; 1973, ch. 256, §§ 1, 2; 1977, ch. 462, §§ 2, 5, 6, 8; 1978, ch. 265, § 1; 1982, ch. 815, § 1; 1986, ch. 632, §§ 1-3; 1986, ch. 637, § 1; 1986, ch. 886, § 1; 1987, ch. 261, § 1; 1988, ch. 755, § 1; T.C.A. (orig. ed.), §§ 39-1211, 39-1212, 39-3611, 39-4508 — 39-4510, 39-5302, 39-5307; T.C.A., §§ 39-1215, 39-4545, 39-5305 — 39-5307), concerning trespass and loitering, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 14, part 4 of this title.

Part 13
Vandalism and Injuries to Property [Repealed]

39-3-1301 — 39-3-1327. [Repealed.]

Compiler's Notes. Former part 13, §§ 39-3-130139-3-1327 (Code 1858, §§ 4652, 4655, 4663, 4828 (deriv. Acts 1833, ch. 90, § 2; 1847-1848, ch. 45, § 1; 1857-1858, ch. 63); Acts 1867-1868, ch. 57, § 1; 1870-1871, ch. 36, §§ 2, 4; 1875, ch. 75, §§ 1, 2; 1897, ch. 102, § 1; 1897, ch. 106, §§ 1, 2; 1899, ch. 21, §§ 1, 2; 1899, ch. 354, §§ 1, 2; Shan., §§ 2883a75b9 — 2883a75b12, 6496, 6503, 6503a1, 6503a2, 6503a4 — 6503a6, 6504, 6505, 6505a1, 6505a2, 6506, 6507a1, 6507a4, 6513a1, 6513a2; Shan. Supp., §§ 6498a3 — 6498a5; Acts 1903, ch. 444, § 2; 1907, ch. 397, §§ 6, 7, 9, 10; 1907, ch. 529, §§ 1, 2; 1911, ch. 17, § 1; 1925, ch. 147, §§ 1-3; 1927, ch. 16, §§ 1-3; 1937, ch. 216, §§ 2, 4; 1959, ch. 234, §§ 1-3; 1961, ch. 173, § 1; 1967, ch. 199, §§ 1, 2; 1970, ch. 582, § 1; 1972, ch. 560, §§ 1, 2; 1977, ch. 462, §§ 2-4, 7, 8; 1978, ch. 526, § 1; 1979, ch. 68, § 3; 1984, ch. 541, §§ 1, 2; 1985, ch. 208, § 1; 1986, ch. 720, §§ 1, 2; 1986, ch. 740, §§ 1-5; T.C.A. (orig. ed.), §§ 39-4501, 39-4502, 39-4506 — 39-4535, 39-5301 — 39-5305, 39-5307, 39-3-130139-3-1305), concerning vandalism and injuries to property, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 14, part 4 of this title.

Part 14
Computer Crimes [Repealed]

39-3-1401 — 39-3-1406. [Repealed.]

Compiler's Notes. Former part 14, §§ 39-3-140139-3-1406 (Acts 1983, ch. 130, §§ 1-6), concerning computer crimes, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 14, part 6 of this title.

Chapter 4
Offenses Against the Family [Repealed]

Part 1
Abandonment of Spouse or Child [Repealed]

39-4-101 — 39-4-113. [Repealed.]

Compiler's Notes. Former part 1, §§ 39-4-10139-4-113 (Shan., §§ 6888a14, 6888a16, 6888a25, 6888a27; Acts 1915, ch. 126, §§ 1, 3; 1915, ch. 127, §§ 1, 3; Code 1932, §§ 11377, 11378, 11386, 11387; Acts 1951, ch. 211, §§ 1-3 (Williams, §§ 11387.1 — 11387.3); 1955, ch. 31, § 1; 1967, ch. 230, §§ 1-10; 1978, ch. 882, § 1; 1981, ch. 23, § 1; 1985, ch. 378, §§ 1, 2; 1985, ch. 477, § 15; 1989, ch. 206, § 7; T.C.A. (orig. ed.), §§ 39-215 — 39-220; T.C.A., §§ 39-201 — 39-210), concerning abandonment of spouse or child, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 15, part 1 of this title.

Part 2
Abortion [Repealed]

39-4-201 — 39-4-208. [Repealed.]

Compiler's Notes. Former part 2, §§ 39-4-20139-4-208 (Acts 1883, ch. 140, § 1; Shan., § 6463; Code 1932, § 10791; Acts 1973, ch. 235, §§ 1, 2, 4, 5; 1974, ch. 471, § 1; 1978, ch. 811, §§ 1, 2; 1978, ch. 847, § 1; 1979, ch. 183, § 1; 1979, ch. 287, §§ 1-5; 1979, ch. 334, § 1; T.C.A. (orig. ed.), § 39-301; T.C.A., §§ 39-302 — 39-308), concerning abortion, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 15, part 2 of this title.

Part 3
Bigamy and Incest [Repealed]

39-4-301 — 39-4-307. [Repealed.]

Compiler's Notes. Former part 3, §§ 39-4-30139-4-307 (Code 1858, §§ 4836-4842, 4844 (deriv. Acts 1829, ch. 23, §§ 16, 18; 1851-1852, ch. 134); Acts 1885, ch. 151, § 1-3; Shan., §§ 6757-6763, 6765-6767; Code 1932, §§ 11177-11183, 11185-11187; Acts 1982, ch. 568, §§ 1, 2; T.C.A. (orig. ed.), §§ 39-701 — 39-706, 39-708; T.C.A., §§ 39-3712, 39-3713), concerning bigamy and incest, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 15, part 3 of this title.

Part 4
Children [Repealed]

39-4-401 — 39-4-422. [Repealed.]

Compiler's Notes. Former part 4, §§ 39-4-40139-4-422 (Code 1858, § 4620; Acts 1883, ch. 136, §§ 1, 2, 4; Shan., §§ 6466, 6827-6829; Code 1932, §§ 10796, 11297, 11298; Acts 1949, ch. 184, §§ 1, 2; C. Supp. 1950, § 10796.1; Acts 1965, ch. 340, § 1; 1973, ch. 81, § 6; 1974, ch. 538, § 1; 1977, ch. 142, § 3; 1979, ch. 68, § 3; 1981, ch. 403, §§ 1-7, 9; 1984, ch. 885, § 1; 1986, ch. 654, §§ 1-7; T.C.A. (orig. ed.), §§ 39-1001, 39-1002, 39-1006; T.C.A., §§ 39-1012, 39-1019, 39-1041 — 39-1048), concerning children, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 15, part 4 of this title.

Chapter 5
Offenses Against the Administration of Government [Repealed]

Part 1
Bribery [Repealed]

39-5-101 — 39-5-116. [Repealed.]

Compiler's Notes. Former part 1, §§ 39-5-10139-5-116 (Code 1858, §§ 4797-4801, 4803-4806 (deriv. Acts 1829, ch. 23, §§ 44, 45); Acts 1875, ch. 34, §§ 1-6; Shan., §§ 6701-6705, 6707-6710, 6724-6729, 6886a5, 6885a6; Shan. Supp., §§ 6711a7-6711a10; Acts 1909, ch. 179, §§ 1, 2; 1921, ch. 138, §§ 3-6; mod. Code 1932, §§ 11081-11087, 11089-11092, 11098-11101, 11123-11128, 11367, 11368; Acts 1947, ch. 117, §§ 1, 2; 1949, ch. 143, § 1; mod. C. Supp. 1950, §§ 11098.1, 11099, 11101 (Williams, §§ 11098, 11102.1, 11102.2); Acts 1961, ch. 88, § 1; 1961, ch. 92, § 1; 1967, ch. 93, §§ 1-3; 1967, ch. 94, §§ 1-3; 1967, ch. 95, § 1; 1970, ch. 438, § 1; 1976, ch. 523, § 1; T.C.A. (orig. ed.), §§ 39-801 — 39-807, 39-809 — 39-812, 39-814 — 39-819, 39-821 — 39-826; T.C.A., §§ 39-835, 39-836), concerning bribery, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 16, part 1 of this title.

Part 2
Contraband in Prisons [Repealed]

39-5-201, 39-5-202. [Repealed.]

Compiler's Notes. Former part 2, §§ 39-5-201, 39-5-202 (Acts 1961, ch. 143, §§ 1, 3; 1974, ch. 772, §§ 1-3; 1979, ch. 362, § 1; T.C.A., §§ 41-132, 41-134, 41-727), concerning contraband in prisons, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 16, part 2 of this title.

Part 3
False Personation [Repealed]

39-5-301 — 39-5-303. [Repealed.]

Compiler's Notes. Former part 3, §§ 39-5-30139-5-303 (Code 1858, §§ 4819, 4820; Shan., §§ 6730, 6731; Code 1932, §§ 11129, 11130; Acts 1973, ch. 398, § 1; 1977, ch. 407, § 1; 1979, ch. 68, § 3; 1980, ch. 636, § 12; 1985, ch. 135, § 1; T.C.A. (orig. ed.), §§ 39-1502, 39-1503), concerning false personation, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 16, part 3 of this title.

Part 4
Misconduct Involving Public Officials and Employees [Repealed]

39-5-401 — 39-5-440. [Repealed.]

Compiler's Notes. Former part 4, §§ 39-5-40139-5-440 (Code 1858, §§ 4706, 4731, 4732, 4774, 4775, 4802, 4808-4811, 4813-4817, 4878, 5264, 5276, 5440, 5531, 5541 (deriv. Acts 1805, ch. 31, § 1; 1805, ch. 66, § 3; 1817, ch. 61, §§ 1, 7; 1829, ch. 21, § 1; 1829, ch. 23, § 61; 1829, ch. 38, § 2; 1829, ch. 101, § 3; 1839-1840, ch. 82, §§ 1, 2); Acts 1870, ch. 13, §§ 2, 4; 1870, ch. 42, § 1; 1871, ch. 90, § 2; 1883, ch. 171, § 28; 1885 (Ex. Sess.), ch. 7, § 10; 1885 (Ex. Sess.), ch. 16, § 1; Acts 1889, ch. 204, § 28; 1895 (Ex. Sess.), ch. 7, § 21; 1897, ch. 22, § 1; 1897, ch. 35, §§ 1-3; 1897, ch. 125, § 1; Shan., §§ 6574, 6593, 6609, 6610, 6645, 6646, 6649, 6679, 6680, 6706, 6711a1, 6711a2, 6712-6719, 6720a1, 6720a2, 6721-6723, 6814, 7242, 7252, 7253a2, 7497a1, 7550, 7562, 7563; Acts 1903, ch. 31, §§ 1, 2; 1909, ch. 500, § 2; 1909, ch. 535, § 5; 1909, ch. 536, § 6; 1913, ch. 38, §§ 1, 2; 1915, ch. 20, §§ 2, 9; 1919, ch. 39, §§ 1, 2; 1923, ch. 7, § 42; 1927, ch. 65, § 1; mod. Code 1932, §§ 10957, 10977, 10992, 10993, 11047, 11048, 11088, 11094, 11095, 11103-11107, 11110-11115, 11117-11121, 11283, 11848, 11858, 11860, 11905, 12080, 12096, 12149, 12160; Acts 1951, ch. 240, § 11 (Williams, § 11935.11); 1955, ch. 102, § 1; 1955, ch. 117, §§ 1, 2; 1972, ch. 832, §§ 1-3; 1973, ch. 50, § 1; 1976, ch. 825, § 1; 1979, ch. 68, § 3; 1982, ch. 943, §§ 1, 2; 1985, ch. 150, § 1; 1989, ch. 278, §§ 49, 50; T.C.A. (orig. ed.), §§ 39-808, 39-820, 39-1937 — 39-1940, 39-2011, 39-3201 — 39-3204, 39-3206 — 39-3211, 39-3213 — 39-3223, 39-4230, 39-4231, 39-4906 — 39-4908, 40-510, 40-1021, 40-3104, 40-3110, 40-3120, 41-107, 41-703 — 41-705, 41-707, 41-722; T.C.A., §§ 41-112(b), 41-135, 41-729), concerning misconduct involving public officials and employees, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 16, part 4 of this title.

Part 5
Obstruction of Justice and Law Enforcement [Repealed]

39-5-501 — 39-5-530. [Repealed.]

Compiler's Notes. Former part 5, §§ 39-5-50139-5-522 and 39-5-52439-5-530 (Code 1858, §§ 4660-4662, 4699, 4771, 4783-4788, 4807 (deriv. Acts 1825, ch. 63, § 3; 1829, ch. 23, § 48); Shan., §§ 6521-6523, 6676, 6687-6692, 6711, 7559, 7560; Acts 1891 (Ex. Sess.), ch. 13, §§ 1, 2; Code 1932, §§ 10883-10885, 10943, 11044, 11057-11062, 12158, 12159; Acts 1937, ch. 119, §§ 1, 2; C. Supp. 1950, §§ 11059.1, 11059.2; Acts 1957, ch. 215, §§ 1-4; 1967, ch. 92, §§ 1, 2; 1967, ch. 96, § 1; 1968, ch. 425, §§ 1-5; 1974, ch. 637, § 1; 1976, ch. 716, §§ 1, 2; 1979, ch. 68, § 3; 1983, ch. 329, § 1; T.C.A. (orig. ed.), §§ 39-813, 39-2809, 39-3101 — 39-3110, 39-3116, 41-701, 41-702; T.C.A., §§ 39-2809, 39-3111 — 39-3116, 39-5115), concerning obstruction of justice and law enforcement, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 16, parts 5 and 6 of this title.

Former § 39-5-523 (Acts 1974, ch. 637, § 1; T.C.A. 39-3115), concerning the dismissal of employees because of jury service, was repealed by Acts 1986, ch. 583, § 2. For related provisions see § 22-4-106.

Part 6
Perjury [Repealed]

39-5-601 — 39-5-606. [Repealed.]

Compiler's Notes. Former part 6, §§ 39-5-60139-5-606 (Code 1858, §§ 11073-11075, 11077; Shan. Supp., §§ 6700a1, 6700a3; Acts 1919, ch. 73, § 3; Code 1932, §§ 11072, 11078, 11080; T.C.A. (orig. ed.), §§ 39-3301 — 39-3304, 39-3306 — 39-3308), concerning perjury, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 16, part 7 of this title.

Part 7
Rescues and Escapes [Repealed]

39-5-701 — 39-5-720. [Repealed.]

Compiler's Notes. Former part 7, §§ 39-5-70139-5-720 (Code 1858, §§ 4772, 4773, 4776-4778, 4781, 5533, 5534, 5536, 5537, 5539, 5542-5547 (deriv. Acts 1807, ch. 73, § 12; 1829, ch. 23, § 60; 1829, ch. 38, §§ 29, 30); Shan., §§ 6677, 6678, 6681-6683, 6685, 6686, 7552, 7553, 7555, 7556, 7558, 7564-7569; Acts 1923, ch. 7, § 42; 1927, ch. 38, §§ 1, 2; mod. Code 1932, §§ 11045, 11046, 11049-11056, 12151, 12152, 12154, 12157, 12162-12167; Acts 1941, ch. 6, § 61; C. Supp. 1950, § 12151; Acts 1953, ch. 68, § 1; 1955, ch. 102, § 1; 1963, ch. 360, §§ 1-5; 1972, ch. 474, § 1; 1973, ch. 24, § 2; 1973, ch. 255, § 1; 1977, ch. 246, §§ 1-3; 1977, ch. 318, § 1; 1977, ch. 493, § 1; 1982, ch. 802, § 1; 1982, ch. 803, § 1; 1984, ch. 611, § 1; 1988, ch. 558, § 1; 1989, ch. 234, § 1; T.C.A. (orig. ed.), §§ 39-3801, 39-3802, 39-3804 — 39-3812, 41-708, 41-710 — 41-716, 41-726; T.C.A., §§ 39-3813 — 39-3815), concerning rescues and escapes, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 16, part 6 of this title.

Part 8
Treason, Disloyal Conduct and Sabotage [Repealed]

39-5-801 — 39-5-848. [Repealed.]

Compiler's Notes. Former part 8, §§ 39-5-80139-5-848 (Code 1858, §§ 4742-4795, (deriv. Acts 1715, ch. 31, § 2); Acts 1859-1860, ch. 82; 1865, ch. 15, § 1; Shan., §§ 6626-6629, 6663; Shan. Supp., §§ 6888a60-6888a64, 6888a66; Acts 1923, ch. 25, §§ 1-5, 7; mod. Code 1932, §§ 102-107, 11003-11006, 11026; Acts 1941, ch. 158, §§ 1-3, 6-10, 12-14; C. Supp. 1950, §§ 11043.1 (Williams, § 11043.13), 11043.2 (Williams, § 11043.1), 11043.3 (Williams, § 11043.2), 11043.4 (Williams, § 11043.3), 11043.7-11043.12 (Williams, §§ 11043.6-11043.11), 11043.13 (Williams, § 11043.14), 11043.14 (Williams, § 11043.15); Acts 1959, ch. 236, § 1; 1961, ch. 287, §§ 1-4; 1967, ch. 377, § 1; 1967, ch. 382, § 1; 1967, ch. 401, § 1; 1976, ch. 534, §§ 1-3; T.C.A. (orig. ed.), §§ 39-1601 — 39-1607, 39-4401 — 39-4409, 39-4412 — 39-4424), concerning treason, disloyal conduct and sabotage, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 17, part 3 of this title.

Chapter 6
Offenses Against Public Health, Safety or Welfare [Repealed]

Part 1
Miscellaneous [Repealed]

39-6-101 — 39-6-110. [Repealed.]

Compiler's Notes. Former part 1, §§ 39-6-10139-6-110 (Acts 1939, ch. 211, §§ 1-3; 1947, ch. 89, §§ 1, 2; C. Supp. 1950, §§ 11173.1 (Williams, §§ 11412.14, 11412.15), 11176.1-11176.3; Acts 1955, ch. 73, §§ 1, 2; 1957, ch. 262, §§ 1, 2; 1961, ch. 7, § 1; 1976, ch. 555, § 1; 1976, ch. 594, §§ 1, 2; 1983, ch. 28, § 1; 1983, ch. 405, § 1; 1989, ch. 39, § 1; T.C.A. (orig. ed.), §§ 39-2207—39-2214, 39-2222), concerning miscellaneous offenses against public health, safety, or welfare, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 17, part 1 of this title.

Part 2
Common Carriers [Repealed]

39-6-201 — 39-6-216. [Repealed.]

Compiler's Notes. Former part 2, §§ 39-6-20139-6-216 (Code 1858, §§ 4634, 4636, 4638-4640, 4646, 4647, 4671 (deriv. Acts 1851-1852, ch. 123, §§ 1-4, 5-8, 13; 1855-1856, ch. 94, § 12); Acts 1870, ch. 60, § 1; 1870-1871, ch. 49, § 1; Shan., §§ 1583, 2883a75b14 (p. 7225), 2883a75b15 (p. 7226), 2883a75b16 (p. 7226), 6475, 6477, 6479-6481, 6487, 6488, 6526a3, 6526a4, 6534; Shan. Supp., §§ 6487a1, 6487a2; Acts 1907, ch. 397, §§ 12-14; 1913 (1st Ex. Sess.), ch. 36, § 1; 1915 (Vol. II), ch. 181, § 1; 1917, ch. 14, § 1; 1917, ch. 128, §§ 1, 2; 1919, ch. 4, § 1; 1919, ch. 5, § 3; 1921, ch. 41, §§ 1, 3; mod. Code 1932, §§ 2647, 10807, 10809, 10811-10813, 10821-10824, 10834, 10835, 10889, 10890, 10906-10908; Acts 1968, ch. 629, § 1; 1974, ch. 575, §§ 1-3; 1987, ch. 64, § 1; T.C.A. (orig. ed.), §§ 39-515 — 39-517, 39-3603 — 39-3610, 39-3613, 39-3615 — 39-3618), concerning common carriers, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 14, parts 3 and 4 of this title.

Part 3
Disorderly Conduct and Riots [Repealed]

39-6-301 — 39-6-346. [Repealed.]

Compiler's Notes. Former part 3, §§ 39-6-30139-6-346 (Code 1858, §§ 4853-4855 (deriv. Acts 1801, ch. 35, § 1; 1824, ch. 3, §§ 1, 2; 1833, ch. 90, §§ 1, 2); Acts 1866-1867, ch. 1, § 1; 1870, ch. 85, § 1; 1873, ch. 94, §§ 1, 2, 6; 1875, ch. 105, §§ 1-3; 1879, ch. 209, § 1; 1881, ch. 166, § 2; 1897, ch. 101, §§ 1, 2; Shan., §§ 3023, 3024, 6512, 6513, 6753, 6776, 6778, 6779, 6779a1, 6779a2; mod. Code 1932, §§ 5248, 5249, 10826, 10866, 10867, 11171, 11197-11201; Acts 1961, ch. 236, §§ 1, 2; 1967, ch. 270, §§ 1, 2; 1968, ch. 480, §§ 1-3; 1968, ch. 484, §§ 1, 2; 1968, ch. 568, §§ 1, 2; 1969, ch. 223, §§ 1, 2; 1969, ch. 257, §§ 2, 3; 1969, ch. 443, § 1; 1970, ch. 581, § 1; 1978, ch. 535, § 1; 1979, ch. 210, § 1; 1985 (1st Ex. Sess.), ch. 11, § 1; 1989, ch. 278, § 1; T.C.A. (orig. ed.), §§ 39-1203 — 39-1207, 39-1209, 39-1210, 39-2908, 39-4701, 39-4702; T.C.A., §§ 39-1011, 39-1213, 39-1216, 39-1217, 39-5101, 39-5102, 39-5104, 39-5105, 39-5116, 41-724, 41-850), concerning disorderly conduct and riots, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 17, part 3 of this title.

Part 4
Drugs [Repealed]

39-6-401 — 39-6-458. [Repealed.]

Compiler's Notes. Former part 4, §§ 39-6-40139-6-458 (Shan., §§ 6749a1 — 6749a3; Acts 1901, ch. 27, §§ 1-3; Code 1932, §§ 11165-11167; Acts 1967, ch. 26, §§ 1-6; 1971, ch. 163, §§ 1-16, 25-27; 1972, ch. 597, §§ 1-4, 10-12; 1972, ch. 836, § 1; 1973, ch. 295, § 21; 1974, ch. 741, §§ 1-6; 1975, ch. 145, § 1; 1975, ch. 248, § 1; 1976, ch. 580, § 1; 1977, ch. 66, § 7; 1977, ch. 124, § 1; 1978, ch. 566, § 1; 1979, ch. 318, § 12; 1979, ch. 404, § 1; 1980, ch. 636, § 9; 1980, ch.796, § 5; 1980, ch. 862, § 8; 1981, ch. 114, §§ 8, 9; 1981, ch. 512, § 3; 1982, ch. 671, §§ 1, 2; 1982, ch. 854, §§ 1, 2; 1983, ch. 410, §§ 1-5; 1983, ch. 412, §§ 1-3; 1983, ch. 446, §§ 1, 2; 1984, ch. 1005, §§ 1-3; 1986, ch. 910, § 1; 1987, ch. 5, § 1; 1987, ch. 222, §§ 1-6; 1988, ch. 731, §§ 1-4; 1988, ch. 921, § 1; 1989, ch. 24, § 1; 1989, ch. 531, § 1; T.C.A. (orig. ed.), §§ 39-2202, 39-2203; T.C.A., §§ 15-1408 — 15-1423, 39-6-416, 39-2216 — 39-2221, 52-1432 — 52-1434, 52-1449), concerning drugs, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 17, part 4 of this title.

Part 5
Fraternal Organizations and Secret Societies [Repealed]

39-6-501 — 39-6-507. [Repealed.]

Compiler's Notes. Former part 5, §§ 39-6-50139-6-507 (Shan., §§ 6888a48-6888a55; Acts 1897, ch. 67, § 1; 1907, ch. 591, §§ 1-5; 1911, ch. 48, §§ 1, 2; 1921, ch. 7, § 1; Code 1932, §§ 11404-11410; Acts 1967, ch. 298, § 1; 1979, ch. 68, § 3; T.C.A. (orig. ed.), §§ 39-3801 — 39-3807), concerning fraternal organizations and secret societies, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989.

Part 6
Gambling [Repealed]

39-6-601 — 39-6-635. [Repealed.]

Compiler's Notes. Former part 6, §§ 39-6-60139-6-635 (Code 1858, §§ 1720-1722, 1775, 4870-4874, 4876, 4877, 4886, 4887, 4889-4891 (deriv. Acts 1799, ch. 8, § 2; 1803, ch. 12, § 2; 1809 (Sept.), ch. 39, § 1; 1811, ch. 112, §§ 1, 2; 1833, ch. 68, §§ 1, 2, 4, 5; 1835-1836, ch. 47, §§ 2, 3; 1843-1844, ch. 90); Acts 1859-1860, ch. 85, § 1; 1883, ch. 230, §§ 1, 2; 1883, ch. 251, §§ 1-3; 1899, ch. 5, § 1; Shan., §§ 3026-3028, 3165-3168, 6804-6810, 6812, 6813, 6817a2-6817a6, 6822-6824, 6834-6836a6; Acts 1907, ch. 88, §§ 1, 2; 1907, ch. 89, §§ 1-3; 1909, ch. 277, §§ 1-4; 1919, ch. 94; mod. Code 1932, §§ 5250-5252, 7818-7821, 11275-11282, 11284, 11287-11291, 11294-11296, 11302-11311; Acts 1955, ch. 234, §§ 1-7; 1957, ch. 406, § 1; 1969, ch. 160, § 3; 1969, ch. 319, §§ 3, 4; 1970, ch. 456, § 1; 1970, ch. 496, § 1; 1970, ch. 510, § 1; 1970, ch. 588, §§ 1, 2; 1971, ch. 37, § 1; 1971, ch. 53, §§ 1, 2; 1971, ch. 167, §§ 1, 2; 1971, ch. 216, § 1; 1971, ch. 231, § 1; 1972, ch. 449, § 1; 1972, ch. 584, § 1; 1973, ch. 389, § 1; 1974, ch. 631, §§ 1, 2; 1974, ch. 782, § 1; 1975, ch. 181, §§ 1, 2; Private Acts 1976, ch. 242, § 1; Private Acts, 1976, ch. 293; Acts 1977, ch. 68, § 3; 1977, ch. 239, § 2; 1979, ch. 68, § 3; 1979, ch. 358, §§ 1, 3-5, 6-9; 1980, ch. 622, §§ 1-3; 1980, ch. 636, § 13; 1980, ch. 753, § 1; 1982, ch. 872, §§ 1-8; 1982, ch. 881, § 1; 1983, ch. 106, §§ 1-4; 1984, ch. 728, § 13; 1984, ch. 808, §§ 1-8; 1984, ch. 893, §§ 1-3; 1985, ch. 80, §§ 2, 3; 1985, ch. 205, §§ 2, 5, 6; 1986, ch. 778, §§ 1-3, 5, 6, 11-14; 1987, ch. 175, § 1; 1987, ch. 450, §§ 2, 3; 1988, ch. 1029, §§ 1-20, 26; T.C.A. (orig. ed.), §§ 39-1007, 39-2001 — 39-2010, 39-2013 — 39-2039; T.C.A., §§ 39-2031 — 39-2033, 39-2038 — 39-2044), concerning gambling, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 17, part 5 of this title.

Part 7
Graves and Dead Bodies [Repealed]

39-6-701 — 39-6-707. [Repealed.]

Compiler's Notes. Former part 7, §§ 39-6-70139-6-707 (Code 1858, §§ 4663, 4848-4852 (deriv. Acts 1857-1858, ch. 63); Acts 1899, ch. 34; Shan., §§ 6524, 6771-6775a1; mod. Code 1932, §§ 10886, 11191-11196; Acts 1965, ch. 53, § 1; 1975, ch. 250, § 1; 1976, ch. 708, § 1; T.C.A. (orig. ed.), §§ 39-2101 —39-2107), concerning graves and dead bodies, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 14, part 4 and ch. 17, part 3 of this title.

Part 8
Highways [Repealed]

39-6-801 — 39-6-806. [Repealed.]

Compiler's Notes. Former part 8, §§ 39-6-80139-6-806 (Code 1858, § 4652; Acts 1879, ch. 183, §§ 1-5; Shan., §§ 6496, 6514-6518; Shan. Supp., §§ 6513a3, 6513a4; Acts 1911, ch. 45, §§ 1, 2; mod. Code 1932, §§ 10831, 10870-10875; Acts 1961, ch. 16, §§ 1, 2; 1968, ch. 576, § 1; 1972, ch. 829, § 7; 1973, ch. 132, §§ 1-3; 1978, ch. 858, § 1; T.C.A. (orig. ed.), §§ 39-2301 — 39-2306; T.C.A., §§ 39-2307 — 39-2311), concerning highways, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 14, part 4 and ch. 17, parts 1 and 3 of this title.

Part 9
Intoxicating Liquors [Repealed]

39-6-901 — 39-6-930. [Repealed.]

Compiler's Notes. Former part 9, §§ 39-6-90139-6-930 (Acts 1859-1860, ch. 12; 1885, ch. 123, §§ 1, 2; Shan., §§ 6723a2, 6748a1, 6748a2, 6748a6, 6795, 6795a4, 6795a7, 6798a8-6798a13, 6798a13b1, 6798a19b11, 6798a20, 6798a21, 6798a24, 6798a25b1, 6798a25b2, 6798a26-6798a32; Shan. Supp., §§ 6743a1-6743a3; Acts 1903, ch. 63, § 1; 1905, ch. 422, § 1; 1909, ch. 1, § 1; 1909, ch. 10, § 1; 1909, ch. 178, §§ 1, 2; 1917, ch. 2, §§ 1, 2; 1917, ch. 3, §§ 1-3; 1917, ch. 5, § 1; 1917, ch. 12, §§ 1-6; 1917, ch. 53, § 1; 1917, ch. 101, § 1; 1919, ch. 50, § 11; 1921, ch. 130, § 1; 1923, ch. 2, § 1; 1923, ch. 4, §§ 1-3; 1923, ch. 12, § 1, 2; 1923, ch. 14, § 1; 1925, ch. 22, § 1; mod. Code 1932, §§ 11158-11160, 11204, 11208-11210, 11212, 11215-11222, 11234, 11242, 11243, 11246, 11247, 11249-11257; Acts 1937, ch. 56, § 1; C. Supp. 1950, § 11259.1; Acts 1967, ch. 149, § 1; 1971, ch. 70, §§ 1-7; 1971, ch. 106, § 1; 1971, ch. 162, § 2; 1972, ch. 599, §§ 2-4; 1972, ch. 831, § 1; 1973, ch. 121, § 1; 1979, ch. 68, § 3; 1979, ch. 413, § 1; 1980, ch. 786, §§ 1, 2; 1984, ch. 693, § 1; 1984, ch. 915, §§ 1, 3; 1987, ch. 164, §§ 1, 2; T.C.A. (orig. ed.), §§ 39-1003, 39-2501 — 39-2517, 39-2520 — 39-2522, 39-2524, 39-2525, 39-2527 — 39-2535; T.C.A. § 39-1218), concerning intoxicating liquors, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 17, part 7 of this title.

Part 10
Nuisances [Repealed]

39-6-1001 — 39-6-1003. [Repealed.]

Compiler's Notes. Former part 10, §§ 39-6-100139-6-1003 (Code 1858, §§ 4833, 4835, 4913, 4915 (deriv. Acts 1819, ch. 63, § 4; 1835-1836, ch. 88, § 1; 1843-1844, ch. 153, § 2); Shan., §§ 6750, 6752, 6869, 6871; mod. Code 1932, §§ 11168, 11170, 11353, 11354; Acts 1972, ch. 717, § 1; 1986, ch. 774, § 10; T.C.A. (orig. ed.), §§ 39-2901 — 39-2903, 39-2905), concerning nuisances, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 17, parts 3, 4 and 9 of this title.

Part 11
Obscenity [Repealed]

39-6-1101 — 39-6-1142. [Repealed.]

Compiler's Notes. Former part 11, §§ 39-6-110139-6-1142 (Acts 1969, ch. 278, §§ 1-4; 1971, ch. 334, §§ 1, 2; 1971, ch. 368, § 1; 1972, ch. 538, § 1; 1972, ch. 837, § 1; 1973, ch. 220, § 1; 1974, ch. 510, §§ 1-13, 16; 1975, ch. 205, § 1; 1975, ch. 306, § 1; 1976, ch. 574, § 1; 1976, ch. 635, § 1; 1977, ch. 226, § 1; 1977, ch. 405, §§ 1-3; 1980, ch. 874, §§ 1-5; 1983, ch. 381, §§ 1, 2; 1983, ch. 383, §§ 1-4; 1984, ch. 722, § 1; 1984, ch. 860, § 1; 1985, ch. 91, § 1; 1985, ch. 308, §§ 1, 2; 1986, ch. 646, §§ 1-4; 1986, ch. 903, § 1; 1988, ch. 565, §§ 1, 2; 1988, ch. 995, §§ 1-3; 1989, ch. 147, § 3; 1989, ch. 380, § 1; T.C.A., §§ 39-1010, 39-1012 — 39-1018, 39-1020, 39-3001 — 39-3024), concerning obscenity, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 17, parts 3 and 9 of this title.

Part 12
Professional or Business Misconduct [Repealed]

39-6-1201 — 39-6-1210. [Repealed.]

Compiler's Notes. Former part 12, §§ 39-6-120139-6-1210 (Acts 1891, ch. 114, §§ 1, 2; Shan., §§ 3030, 6881a1-6881a3, 6888a41, 6888a42; Acts 1903, ch. 48, §§ 1, 2; 1917, ch. 110, §§ 1-3; Code 1932, §§ 5254, 11358-11360, 11398, 11399; Acts 1968, ch. 537, §§ 1-5; 1977, ch. 49, § 1; 1984, ch. 824, § 1; T.C.A. (orig. ed), §§ 39-3401 — 39-3404, 39-4003; T.C.A., §§ 39-3411 — 39-3415), concerning professional or business misconduct, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 14, part 1 of this title, title 63, ch. 6, part 2.

Part 13
Public Events [Repealed]

39-6-1301 — 39-6-1304. [Repealed.]

Compiler's Notes. Former part 13, §§ 39-6-130139-6-1304 (Shan., §§ 6674, 6675; Acts 1901, ch. 77, §§ 1, 2; 1909, ch. 155, § 1; mod. Code 1932, §§ 11039, 11043; Acts 1947, ch. 103, §§ 1-4; C. Supp. 1950, §§ 11403.1-11403.4; Acts 1953, ch. 134, § 1 (Williams, § 11403.5); 1974, ch. 636, §§ 1, 2; 1980, ch. 727, § 1; T.C.A. (orig. ed.), §§ 39-1201, 39-1202, 39-4101 — 39-4105; T.C.A., § 39-1219), concerning public events, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 17, part 11 of this title.

Part 14
Race Relations [Repealed]

39-6-1401 — 39-6-1407. [Repealed.]

Compiler's Notes. Former part 14, §§ 39-6-140139-6-1407 (Acts 1957, ch. 151, §§ 2-7, 9; T.C.A., §§ 39-5001 — 39-5007), concerning race relations, was repealed by Acts 1983, ch. 350, § 1.

Part 15
Solicitation of Funds [Repealed]

39-6-1501 — 39-6-1522. [Repealed.]

Compiler's Notes. Former part 15, §§ 39-6-150139-6-1522 (Acts 1957, ch. 152, §§ 1-8; 1961, ch. 294, §§ 1-3; 1971, ch. 143, §§ 1-3; 1973, ch. 155, § 1; T.C.A. (orig. ed.), §§ 39-827, 39-1953; T.C.A., §§ 39-828 — 39-834, 39-837, 39-1969), concerning solicitation of funds, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 14, part 1 and ch. 16, part 3 of this title.

Part 16
Waters and Watercourses [Repealed]

39-6-1601 — 39-6-1614. [Repealed.]

Compiler's Notes. Former part 16, §§ 39-6-160139-6-1614 (Code 1858, §§ 1825, 4652, 4655, 4834, 4835 (deriv. Acts 1809 (Apr.), ch. 5, § 5; 1835-1836, ch. 29, § 4); Acts 1871, ch. 105; 1873, ch. 60, §§ 1, 2; 1877, ch. 24, § 3; Shan., §§ 1815, 1825, 6506, 6520a1, 6520a2, 6526a1, 6526a2, 6751, 6752, 6754, 6755; Acts 1903, ch. 303, §§ 1, 2; 1903, ch. 310, §§ 1, 2; mod. Code 1932, §§ 3081, 3089, 10863, 10877, 10878, 10887, 10888, 11169, 11170, 11172, 11173; T.C.A. (orig. ed.), §§ 39-2205, 39-2206, 39-2904 — 39-2907, 39-4801 — 39-4811), concerning water and watercourses, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 14, part 4 of this title.

Part 17
Weapons [Repealed]

39-6-1701 — 39-6-1725. [Repealed.]

Compiler's Notes. Former part 17, §§ 39-6-170139-6-1725 (Code 1858, §§ 4746, 4747, 4864, 4869 (deriv. Acts 1837-1838, ch. 137, § 2; 1855-1856, ch. 66; 1855-1856, ch. 81, § 2); Acts 1869-1870, ch. 22, § 2; 1869-1870, ch. 41, § 2; 1870, ch. 13, §§ 1, 3, 4; 1871, ch. 90, §§ 1, 3; 1879, ch. 96, § 1; 1879, ch. 186, §§ 1, 3; Shan., §§ 6630, 6631, 6641-6643, 6649, 6650, 6792, 6803; Shan. Supp., §§ 6657a1-6657a3; Acts 1921, ch. 55, §§ 1-3; 1923, ch. 38, § 1; mod. Code 1932, §§ 11007-11010, 11012, 11015, 11018-11020, 11274; Acts 1941, ch. 31, § 1; 1943, ch. 115, §§ 1, 2; 1949, ch. 140, § 1; C. Supp. 1950, §§ 11007, 11009.1; Acts 1959, ch. 151, § 1; 1959, ch. 165, § 1; 1968, ch. 439, § 1; 1969, ch. 70, §§ 1, 2; 1969, ch. 88, § 1; 1969, ch. 241, §§ 1, 2; 1969, ch. 291, § 1; 1971, ch. 13, § 1; 1971, ch. 286, § 1; 1972, ch. 759, § 1; 1972, ch. 783, §§ 1, 2; 1973, ch. 30, §§ 1-4; 1973, ch. 94, § 1; 1973, ch. 349, §§ 1, 2; 1973, ch. 371, § 1; 1974, ch. 583, § 1, 1976, ch. 768, §§ 1, 2; 1976, ch. 793, §§ 1, 3, 4; 1980, ch. 771, § 4; 1982, ch. 552, § 1; 1982, ch. 711, § 1; 1983, ch. 15, §§ 1, 2; 1983, ch. 421, § 1; 1984, ch. 567, § 1; 1984, ch. 615, § 1; 1984, ch. 641, § 1; 1986, ch. 685, § 1; 1986, ch. 710, § 1; 1987, ch. 79, §§ 1, 2; 1988, ch. 811, §§ 1-3; 1989, ch. 76, § 8; 1989, ch. 111, § 1; T.C.A. (orig. ed.), §§ 39-1208, 39-4901 — 39-4905, 39-4908, 39-4911 — 39-4921, 39-4923 — 39-4925, 39-4951 — 39-4954), concerning weapons, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 17, part 13 of this title.

Part 18
Malicious Intimidation or Harassment [Repealed]

39-6-1801 — 39-6-1804. [Repealed.]

Compiler's Notes. Former part 18, §§ 39-6-180139-6-1804 (Acts 1988, ch. 537, §§ 1, 3-5), concerning malicious intimidation or harassment, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989. For new law, see ch. 17, part 3 of this title.

Part 1
Construction

39-11-101. Objectives of criminal code.

The general objectives of the criminal code are to:

  1. Proscribe and prevent conduct that unjustifiably and inexcusably causes or threatens harm to individual, property, or public interest for which protection through the criminal law is appropriate;
  2. Give fair warning of what conduct is prohibited, and guide the exercise of official discretion in law enforcement, by defining the act and the culpable mental state that together constitute an offense;
  3. Give fair warning of the consequences of violation, and guide the exercise of official discretion in punishment, by grading of offenses; and
  4. Prescribe penalties that are proportionate to the seriousness of the offense.

Acts 1989, ch. 591, § 1.

Sentencing Commission Comments.

This section states the general objectives of the criminal code. It describes the broad principles that guided the commission in its work and should be used as an aid in interpreting the remaining sections of the code.

The general objectives in this section reach three areas: crime prevention, fair warning, and proportionate sanctions. Although the objectives are not ranked in any particular order, crime prevention is of special significance and is an indirect theme for the other three objectives.

Subdivision (1) clearly states that a basic goal of the criminal code is to prevent harm to public and private interests. However, in recognition of the fact that not all harm can be addressed by the criminal code, this subdivision limits the code's application to those harms where criminal law is an appropriate prevention agent.

Subdivisions (2) and (3) provide that another goal is to let both the general populace and law enforcement personnel know the conduct that is prohibited and the sanctions for violation of the criminal law. Fair warning, long accepted as a basic principle of Anglo-American jurisprudence, provides the people with guidance in their choices and places limits on law enforcement discretion. It also serves a crime prevention function by clearly articulating what is illegal and what are the consequences of illegal conduct.

Subdivision (4) states the traditional, and constitutionally required, principle that the severity of penalties should be proportionate to the seriousness of the offense. This suggests that penalties should not be too severe or too lenient when measured against the gravity of the offense.

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. Classification of felony offenses occurring prior to November 1, 1989, § 40-35-118.

Criminal Sentencing Reform Act, title 40, ch. 35.

Law Reviews.

In Defense of American Criminal Justice, 67 Vand. L. Rev. 1099 (2014).

Reciprocity, Utility, and the Law of Aggression, 54 Vand. L. Rev. 1 (2001).

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

The Tennessee Court of Criminal Appeals: A Study and Analysis (Daniel J. Foley), 66 Tenn. L. Rev. 427 (1999).

39-11-102. Effect of criminal code.

  1. Conduct does not constitute an offense unless it is defined as an offense by statute, municipal ordinance, or rule authorized by and lawfully adopted under a statute.
  2. Parts 1-6 of this chapter apply to offenses defined by other laws, unless otherwise provided by law.
  3. This title does not bar, suspend, or otherwise affect any right or liability to damages, penalty, forfeiture, or other remedy authorized by law to be recovered or enforced in a civil suit for conduct the criminal code defines as an offense, and the civil injury is not merged into the offense.

Acts 1989, ch. 591, § 1.

Sentencing Commission Comments.

Subsection (a) is designed to accommodate the commission's specific legislative mandate to modernize the former penal code. It is the intent of the commission that common law offenses be replaced with statutory offenses to effectuate the goals set forth in § 39-11-101(1) and (2). While this revised criminal code supersedes common law offenses, the commission does not intend to abrogate the interpretive rules developed under common law and specifically includes such interpretations under § 39-11-104.

Subsection (b) states that the general principles apply to offenses defined in all volumes of the Tennessee Code Annotated unless the law provides otherwise.

Subsection (c) is a restatement of prior code § 39-1-102. Tennessee case law has established a consistent rule that a judgment of acquittal in a criminal case constitutes no bar to subsequent civil actions. Galyon v. State, 189 Tenn. 505, 226 S.W.2d 270 (1950).

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

NOTES TO DECISIONS

1. Criminal Contempt.

As defendant's violation of court orders to discontinue contact with her ex-husband did not constitute a criminal offense as defined by T.C.A. § 39-11-102(a), the Post-Conviction Procedure Act, T.C.A. §§ 40-30-101 to 40-30-122, did not apply to her criminal contempt convictions; therefore, her petition was properly dismissed. Baker v. State, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 535 (Tenn. Crim. App. July 20, 2012), aff'd, 417 S.W.3d 428, 2013 Tenn. LEXIS 715 (Tenn. Sept. 6, 2013).

39-11-103. Territorial jurisdiction.

  1. Every person, whether an inhabitant of this or any other state or country, is liable to punishment by the laws of this state, for an offense committed in this state, except where it is by law cognizable exclusively in the courts of the United States.
    1. When an offense is commenced outside of this state and consummated in this state, the person committing the offense is liable for punishment in this state in the county in which the offense was consummated, unless otherwise provided by statute.
    2. It is no defense that the person charged with the offense was outside of this state when the offense was consummated, if the person used:
      1. An innocent or guilty agent; or
      2. Other means proceeding directly from the person.
  2. When the commission of an offense commenced within this state is consummated outside of its boundaries, the offender is liable to punishment in this state in the county where the offense was commenced.
  3. If one (1) or more elements of an offense are committed in one (1) county and one (1) or more elements in another, the offense may be prosecuted in either county. Offenses committed on the boundary of two (2) or more counties may be prosecuted in either county.

Acts 1989, ch. 591, § 1; 1990, ch. 1000, § 5.

Sentencing Commission Comments.

This section is a recodification of prior law regarding territorial jurisdiction and venue. It combines prior code §§ 40-1-10140-1-103 and is moved to its present location because it is logically part of the general principles of Tennessee criminal law.

Subsection (d) is a restatement of former code §§ 40-105 and 40-106.

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

Attorney General Opinions. Advertisements promoting lawful, out-of-state casino gambling, OAG 99-030 (2/18/99).

NOTES TO DECISIONS

1. In General.

When an offense is continuing in nature and has continued into Tennessee from another state, the offense is deemed to have both commenced and consummated anew in Tennessee so long as any essential element of the offense continues to be present in Tennessee. State v. Legg, 9 S.W.3d 111, 1999 Tenn. LEXIS 680 (Tenn. 1999).

Tennessee had territorial jurisdiction and the county was the proper venue for defendant's trial for conspiracy to sell over 300 grams of methamphetamine because the evidence showed that one of co-conspirator's transported methamphetamine from Atlanta to the county in Tennessee. State v. Castillo, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 472 (Tenn. Crim. App. July 9, 2020).

39-11-104. Construction of criminal code.

This title shall be construed according to the fair import of its terms, including reference to judicial decisions and common law interpretations, to promote justice, and effect the objectives of the criminal code.

Acts 1989, ch. 591, § 1.

Sentencing Commission Comments.

The commission intends the language of the sections themselves to be an authoritative statement of the law. Since some of the terms utilized have been clearly defined by judicial decisions, those decisions and common law interpretations should be consulted where necessary. Prior Tennessee law required penal statutes to be strictly construed. This section requires that the statutes be construed by the fair import of their terms. The comments in this code are intended to explain its provisions and to aid in their interpretation. The comments are not authoritative statements, but are evidence of the considerations which prompted the statutory text.

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.

State v. Carson: A Misguided Attempt to Retain the Natural and Probable Consequence Doctrine of Accomplice Liability Under the Current Tennessee Code, 29 U. Mem. L. Rev. 273 (1998).

NOTES TO DECISIONS

1. Constitutionality.

T.C.A. §§ 39-15-401 and 39-15-402 are not unconstitutionally vague as applied to a mother who gave her child an extra dose of Clonidine, because the statutes require that the mother know her conduct was abusive. State v. Prater, 137 S.W.3d 25, 2003 Tenn. Crim. App. LEXIS 886 (Tenn. Crim. App. 2003), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 169 (Tenn. Mar. 1, 2004).

Criminal responsibility 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).

T.C.A. § 39-14-402(a)(3) does not violate the fair warning doctrine merely because it has not been for a significant period of time employed to the prosecution of burglaries where a person entered a building open to the public, without the consent of the owner, and committed or attempted to commit a felony, theft, or assault. State v. Bowens, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 791 (Tenn. Crim. App. Oct. 23, 2018).

2. Trial of Accessory After the Fact.

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).

By defining accessory after the fact in a manner similar to the statutory definition of the offense at issue in Wilson v. State, 190 Tenn. 592, 230 S.W.2d 1014 (Tenn. 1950) and by also declaring that the Reform Act, 1989 Tenn. Pub. Acts ch. 591, is to be construed by reference to judicial decisions and common law interpretations, the legislature has evinced an intent to retain the common law rule, that a person charged as an accessory after the fact may not be tried prior to the principal offender being convicted, as to accessories after the fact. State v. Hawk, 170 S.W.3d 547, 2005 Tenn. LEXIS 656 (Tenn. 2005).

3. Kidnapping

Kidnapping statutes, construed according to the fair import of their terms, T.C.A. § 39-11-104, and coupled with their derivation from the Model Penal Code, evince a legislative intent to punish as kidnapping only those instances in which the removal or confinement has criminal significance above and beyond that necessary to consummate some underlying offense, such as robbery or rape. State v. White, 362 S.W.3d 559, 2012 Tenn. LEXIS 153 (Tenn. Mar. 9, 2012).

39-11-105. Computation of age.

A person attains a specified age on the day of the anniversary of the person's birthdate.

Acts 1989, ch. 591, § 1.

Sentencing Commission Comments.

The age of victims and offenders is sometimes determinative of punishment and criminal responsibility. This section sets forth an objective method of making a determination of age. Under this rule, a person becomes 18 years old at 12:01 a.m. on the person's eighteenth birthday, irrespective of the actual time of day the person was born. This abolishes the common law rule.

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

NOTES TO DECISIONS

1. Evidence Sufficient.

Defendant's conviction for the aggravated rape of a child was proper because the evidence demonstrated that defendant penetrated the victim with his hand and that the victim was three years and one month of age at the time of the offense; a medical examination confirmed the victim's injuries and defendant admitted during a recorded telephone call to the sexual touching of the victim. Further, the offense took place on December 15, 2006, while the victim was still three years of age; she remained three years of age until her fourth birthday on November 3, 2007. State v. Ramos, 331 S.W.3d 408, 2010 Tenn. Crim. App. LEXIS 195 (Tenn. Crim. App. Mar. 3, 2010), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 754 (Tenn. Aug. 26, 2010).

39-11-106. Title definitions.

  1. As used in this title, unless the context requires otherwise:
    1. “Antique firearm” means:
      1. Any firearm, including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system, manufactured in or before the year 1898;
      2. Any replica of any firearm described in subdivision (a)(1)(A) if such replica:
        1. Is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition; or
        2. Uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade; or
      3. Any muzzle loading rifle, muzzle loading shotgun, or muzzle loading pistol, which is designed to use black powder, or a black powder substitute, and which cannot use fixed ammunition;
    2. “Benefit” means anything reasonably regarded as economic gain, enhancement or advantage, including benefit to any other person in whose welfare the beneficiary is interested;
    3. “Bodily injury” includes a cut, abrasion, bruise, burn or disfigurement, and physical pain or temporary illness or impairment of the function of a bodily member, organ, or mental faculty;
    4. “Coercion” means a threat, however communicated, to:
      1. Commit any offense;
      2. Wrongfully accuse any person of any offense;
      3. Expose any person to hatred, contempt or ridicule;
      4. Harm the credit or business repute of any person; or
      5. Take or withhold action as a public servant or cause a public servant to take or withhold action;
    5. “Criminal negligence” refers to a person who acts with criminal negligence with respect to the circumstances surrounding that person's conduct or the result of that conduct when the person ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the accused person's standpoint;
    6. “Deadly weapon” means:
      1. A firearm or anything manifestly designed, made or adapted for the purpose of inflicting death or serious bodily injury; or
      2. Anything that in the manner of its use or intended use is capable of causing death or serious bodily injury;
      1. “Deception” means that a person knowingly:
        1. Creates or reinforces a false impression by words or conduct, including false impressions of fact, law, value or intention or other state of mind that the person does not believe to be true;
        2. Prevents another from acquiring information which would likely affect the other's judgment in the transaction;
        3. Fails to correct a false impression of law or fact the person knows to be false and:
          1. The person created; or
          2. Knows is likely to influence another;
        4. Fails to disclose a lien, security interest, adverse claim or other legal impediment to the enjoyment of the property, whether the impediment is or is not valid, or is or is not a matter of public record;
        5. Employs any other scheme to defraud; or
        6. (a)  Promises performance that at the time the person knew the person did not have the ability to perform or that the person does not intend to perform or knows will not be performed, except mere failure to perform is insufficient to establish that the person did not intend to perform or knew the promise would not be performed;
          1. (vi)  (a)  Promises performance that at the time the person knew the person did not have the ability to perform or that the person does not intend to perform or knows will not be performed, except mere failure to perform is insufficient to establish that the person did not intend to perform or knew the promise would not be performed;
          2. Promising performance includes issuing a check or similar sight order for the payment of money or use of a credit or debit card when the person knows the check, sight order, or credit or debit slip will not be honored for any reason;
      2. “Deception” does not include falsity as to matters having no pecuniary significance or puffing by statements unlikely to deceive ordinary persons in the group addressed;
    7. “Defendant” means a person accused of an offense under this title and includes any person who aids or abets the commission of such offense;
    8. “Deprive” means to:
      1. Withhold property from the owner permanently or for such a period of time as to substantially diminish the value or enjoyment of the property to the owner;
      2. Withhold property or cause it to be withheld for the purpose of restoring it only upon payment of a reward or other compensation; or
      3. Dispose of property or use it or transfer any interest in it under circumstances that make its restoration unlikely;
    9. “Destructive device”:
      1. Means:
        1. Any explosive, incendiary, or poison gas:
          1. Bomb;
          2. Grenade;
          3. Rocket having a propellant charge of more than four ounces (4 oz.);
          4. Missile having an explosive or incendiary charge of more than one-quarter ounce (0.25 oz.);
          5. Mine; or
          6. Device similar to any of the devices described in subdivisions (a)(10)(A)(i)(a)-(e); and
        2. Any combination of parts either designed or intended for use in converting any device into any destructive device described in subdivision (a)(10)(A)(i) and from which a destructive device may be readily assembled; and
      2. Does not include:
        1. Any device that is neither designed nor redesigned for use as a weapon;
        2. Any device, although originally designed for use as a weapon, that is redesigned for use as a signaling, pyrotechnic, line throwing, safety, or similar device;
        3. Surplus ordnance sold, loaned, or given by the secretary of the Army pursuant to 10 U.S.C. § 7684(2), 10 U.S.C. § 7685, or 10 U.S.C. § 7686;
        4. Any antique or rifle which the owner intends to use solely for sporting purposes; or
        5. Any other device that is not likely to be used as a weapon;
    10. “Effective consent” means assent in fact, whether express or apparent, including assent by one legally authorized to act for another. Consent is not effective when:
      1. Induced by deception or coercion;
      2. Given by a person the defendant knows is not authorized to act as an agent;
      3. Given by a person who, by reason of youth, mental disease or defect, or intoxication, is known by the defendant to be unable to make reasonable decisions regarding the subject matter; or
      4. Given solely to detect the commission of an offense;
    11. “Emancipated minor” means any minor who is or has been married, or has by court order or otherwise been freed from the care, custody and control of the minor's parents;
    12. “Firearm”:
      1. Means:
        1. Any weapon that will or is designed to or may readily be converted to expel a projectile by the action of an explosive;
        2. The frame or receiver of any such weapon;
        3. Any firearm muffler or firearm silencer; or
        4. Any destructive device; and
      2. Does not include an antique firearm;
    13. “Force” means compulsion by the use of physical power or violence and shall be broadly construed to accomplish the purposes of this title;
    14. “Fraud” means as used in normal parlance and includes, but is not limited to, deceit, trickery, misrepresentation and subterfuge, and shall be broadly construed to accomplish the purposes of this title;
    15. “Government” means the state or any political subdivision of the state, and includes any branch or agency of the state, a county, municipality or other political subdivision;
    16. “Governmental record” means anything:
      1. Belonging to, received or kept by the government for information; or
      2. Required by law to be kept by others for information of the government;
    17. “Handgun” means any firearm with a barrel length of less than twelve inches (12") that is designed, made or adapted to be fired with one (1) hand;
    18. “Harm” means anything reasonably regarded as loss, disadvantage or injury, including harm to another person in whose welfare the person affected is interested;
    19. “Intentional” means that a person acts intentionally with respect to the nature of the conduct or to a result of the conduct when it is the person's conscious objective or desire to engage in the conduct or cause the result;
    20. “Jail” includes workhouse and “workhouse” includes jail, whenever the context so requires or will permit;
    21. “Knowing” means that a person acts knowingly with respect to the conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist. A person acts knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result;
    22. “Law enforcement officer” means an officer, employee or agent of government who has a duty imposed by law to:
      1. Maintain public order; or
      2. Make arrests for offenses, whether that duty extends to all offenses or is limited to specific offenses; and
      3. Investigate the commission or suspected commission of offenses;
    23. “Legal privilege” means a particular or peculiar benefit or advantage created by law;
    24. “Minor” means any person under eighteen (18) years of age;
      1. “Obtain” means to:
        1. Bring about a transfer or purported transfer of property or of a legally recognized interest in the property, whether to the defendant or another; or
        2. Secure the performance of service;
      2. “Obtain” includes, but is not limited to, the taking, carrying away or the sale, conveyance or transfer of title to or interest in or possession of property, and includes, but is not limited to, conduct known as larceny, larceny by trick, larceny by conversion, embezzlement, extortion or obtaining property by false pretenses;
    25. “Official proceeding” means any type of administrative, executive, legislative or judicial proceeding that may be conducted before a public servant authorized by law to take statements under oath;
    26. “Owner” means a person, other than the defendant, who has possession of or any interest other than a mortgage, deed of trust or security interest in property, even though that possession or interest is unlawful and without whose consent the defendant has no authority to exert control over the property;
    27. “Person” includes the singular and the plural and means and includes any individual, firm, partnership, copartnership, association, corporation, governmental subdivision or agency, or other organization or other legal entity, or any agent or servant thereof;
    28. “Property” means anything of value, including, but not limited to, money, real estate, tangible or intangible personal property, including anything severed from land, library material, contract rights, choses-in-action, interests in or claims to wealth, credit, admission or transportation tickets, captured or domestic animals, food and drink, electric or other power. Commodities of a public nature, such as gas, electricity, steam, water, cable television and telephone service constitute property, but the supplying of such a commodity to premises from an outside source by means of wires, pipes, conduits or other equipment is deemed a rendition of service rather than a sale or delivery of property;
    29. “Public place” means a place to which the public or a group of persons has access and includes, but is not limited to, highways, transportation facilities, schools, places of amusement, parks, places of business, playgrounds and hallways, lobbies and other portions of apartment houses and hotels not constituting rooms or apartments designed for actual residence. An act is deemed to occur in a public place if it produces its offensive or proscribed consequences in a public place;
    30. “Public servant” means:
      1. Any public officer or employee of the state or of any political subdivision of the state or of any governmental instrumentality within the state including, but not limited to, law enforcement officers;
      2. Any person exercising the functions of any such public officer or employee;
      3. Any person participating as an adviser, consultant or otherwise performing a governmental function, but not including witnesses or jurors; or
      4. Any person elected, appointed or designated to become a public servant, although not yet occupying that position;
    31. “Reckless” means that a person acts recklessly with respect to circumstances surrounding the conduct or the result of the conduct when the person is aware of, but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the accused person's standpoint;
      1. “Recorded device” means the tangible medium upon which sounds or images are recorded or otherwise stored;
      2. “Recorded device” includes any original phonograph record, disc, tape, audio, or videocassette, wire, film or other medium now known or later developed on which sounds or images are or can be recorded or otherwise stored, or any copy or reproduction which duplicates, in whole or in part, the original;
    32. “Security guard/officer” means an individual employed to perform any function of a security guard/officer and security guard/officer patrol service as set forth in the Private Protective Services Licensing and Regulatory Act, compiled in title 62, chapter 35;
    33. “Serious bodily injury” means bodily injury that involves:
      1. A substantial risk of death;
      2. Protracted unconsciousness;
      3. Extreme physical pain;
      4. Protracted or obvious disfigurement;
      5. Protracted loss or substantial impairment of a function of a bodily member, organ or mental faculty; or
      6. A broken bone of a child who is twelve (12) years of age or less;
    34. “Services” includes labor, skill, professional service, transportation, telephone, mail, gas, electricity, steam, water, cable television, entertainment subscription service or other public services, accommodations in hotels, restaurants or elsewhere, admissions to exhibitions, use of vehicles or other movable property, and any other activity or product considered in the ordinary course of business to be a service, regardless of whether it is listed in this subdivision (a)(37) or a specific statute exists covering the same or similar conduct; and
    35. “Value”:
      1. Subject to the additional criteria of subdivisions (a)(38)(B)-(D), “value” under this title means:
        1. The fair market value of the property or service at the time and place of the offense; or
        2. If the fair market value of the property cannot be ascertained, the cost of replacing the property within a reasonable time after the offense;
      2. The value of documents, other than those having a readily ascertainable fair market value, means:
        1. The amount due and collectible at maturity, less any part that has been satisfied, if the document constitutes evidence of a debt; or
        2. The greatest amount of economic loss that the owner might reasonably suffer by virtue of loss of the document, if the document is other than evidence of a debt;
      3. If property or service has value that cannot be ascertained by the criteria set forth in subdivisions (a)(38)(A) and (B), the property or service is deemed to have a value of less than fifty dollars ($50.00);
      4. If the defendant gave consideration for or had a legal interest in the property or service that is the object of the offense, the amount of consideration or value of the interest shall be deducted from the value of the property or service ascertained under subdivision (a)(38)(A), (B) or (C) to determine value; and
      5. For a violation of § 39-14-408(b)(1), the value of the property includes the fair market value of repairing, cleaning, and restoring the property.
  2. The definition of a term in subsection (a) applies to each grammatical variation of the term.

Acts 1989, ch. 591, § 1; 1990, ch. 1030, §§ 1, 2; 1995, ch. 322, § 1; 1996, ch. 1009, § 22; 1997, ch. 437, § 2; 2009, ch. 307, § 1; 2009, ch. 325, § 1; 2011, ch. 348, § 1; 2014, ch. 984, § 1; 2019, ch. 279, §§ 1, 2; 2020 (2nd Ex. Sess.), ch. 3, § 1.

Compiler's Notes. For the Preamble to the act concerning a  uniform framework of laws that will protect the rights of all Tennesseans to peacefully demonstrate, see Acts 2020 (2nd Ex. Sess.), ch. 3.

2020 (2nd Ex. Sess.), ch. 3, § 26 provided that the act, which amended this section, applies to offenses committed after August 20, 2020.

Amendments. The 2019 amendment rewrote the definition of “Firearm”, which read: “‘Firearm’ means any weapon designed, made or adapted to expel a projectile by the action of an explosive or any device readily convertible to that use;”; and added the definitions for “Antique firearm” and “Destructive device”.

The 2020 (2nd Ex. Sess.) amendment by ch. 3 added (a)(38)(E).

Effective Dates. Acts 2019, ch. 279, § 5. May 2, 2019.

Acts 2020 (2nd Ex. Sess.), ch. 3, § 26. August 20, 2020.

Cross-References. Applicability of Criminal Sentencing Reform Act of 1989, § 40-35-117.

Classification of offenses committed prior to November 1, 1989, § 40-35-118.

Culpability, title 39, ch. 11, part 3.

Mental states defined, § 39-11-302.

Vandalism of caves or caverns, § 11-5-108.

Textbooks. Tennessee Jurisprudence, 5 Tenn. Juris., Burglary and Housebreaking, § 3; 17 Tenn. Juris., Larceny and Theft, §§ 2, 5; 21 Tenn. Juris., Rape, §§ 3, 4; 25 Tenn. Juris., Weapons, § 2.

Law Reviews.

Constitutional Law — Searches, Seizures, and Confessions — Constitutional Protections for Students in Public Schools (Bryan C. Hathorn), 76 Tenn. L. Rev. 211 (2008).

Criminal Attempt — Murder Two: The Law in Tennessee After State v. Kimbrough (Barbara Kritchevsky), 28 U. Mem. L. Rev. 3 (1997).

Attorney General Opinions. Effect of new traffic citation legislation, OAG 93-51 (7/29/93).

Procedures for use of minors in tobacco sales sting operations, OAG 99-016 (2/2/99).

Department of agriculture enforcement agent as law enforcement officer, OAG 99-016 (2/2/99).

Public Chapter 279, which became effective May 2, 2019, exempted “antique firearm[s]” from the definition of “firearm” in T.C.A. § 39-11-106(a)(11). As a result of the passage of Public Chapter 279, the prohibitions in T.C.A. § 39-11-1307 on the possession of firearms and handguns by individuals convicted of felonies and certain misdemeanors no longer apply to antique firearms. OAG 19-19, 2019 Tenn. AG LEXIS 56 (10/9/2019).

NOTES TO DECISIONS

1. Bodily Injury.

Evidence was sufficient to support defendant's conviction of aggravated rape under T.C.A. § 39-13-502(a) where the victim received eight stitches in her genital area and was hospitalized for five days, the victim immediately recognized defendant several days after the rape when he showed up at her apartment building, and the DNA evidence showed that the sample contained a mixture of genetic material from the victim and another individual whose DNA profile was consistent with defendant's profile. State v. Sellers, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1047 (Tenn. Crim. App. Nov. 20, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 350 (Tenn. Apr. 14, 2015).

Trial court did not err by refusing to instruct the jury on the lesser-included offense of domestic assault by extremely offensive or provocative physical contact during his trial for domestic assault where defendant's actions of using a tree branch to strike the victim's backside and leaving visible bruising was not the type of action that could be characterized as offensive or provocative. State v. Jones, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 25 (Tenn. Crim. App. Jan. 14, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 267 (Tenn. Mar. 30, 2016).

Evidence was sufficient to sustain defendant's conviction for assault because she pushed an off-duty police officer into a ditch and sprayed him with mace as he attempted to climb out of the ditch, the officer testified that his finger was injured and that his eyes burned, which fell under the statutory definition of bodily injury, and the trial court, by its verdict, clearly rejected defendant's claim of self-defense and accredited the testimonies of the witnesses who denied that the officer assaulted defendant prior to being pushed into the ditch and sprayed with mace. State v. Teets, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 93 (Tenn. Crim. App. Feb. 10, 2016).

Evidence was sufficient to convict defendant of two counts of aggravated rape as the victim's testimony alone was sufficient to establish that she felt physical pain while defendant penetrated her mouth and her anus because the victim testified that defendant smacked her two or three times while he forced his sexual organ inside her mouth, that her head hurt a little bit from being hit, and that it continued to hurt until she was able to go home and sleep; and the victim testified at trial that it hurt when defendant penetrated her anus, and that it hurt for about a week afterward, and a detective testified that the victim appeared to be in pain and was having trouble sitting when he spoke to her on the night of the rape. State v. Mervan Eyup Ibrahim, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 622 (Tenn. Crim. App. Aug. 22, 2016), appeal denied, State v. Ibrahim, — S.W.3d —, 2017 Tenn. LEXIS 59 (Tenn. Jan. 19, 2017).

Evidence was sufficient to support defendant's conviction of assault where a rational trier of fact could have found that the victim reasonably feared imminent bodily injury both at the time he was behind bulletproof glass and at the moment when he left the bulletproof area to help the young girl who had been shot. State v. Perrier, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 666 (Tenn. Crim. App. Sept. 6, 2016), aff'd, 536 S.W.3d 388, 2017 Tenn. LEXIS 724 (Tenn. Nov. 21, 2017).

Evidence supported defendant's conviction for aggravated assault by use of a skillet as a deadly weapon because the victim, defendant's then spouse, after arguing and consuming alcohol with defendant for some time before falling asleep on a sofa was jarred awake when defendant struck the victim in the head with an iron skillet, causing the victim pain and leaving the victim with a large knot and a cut on the top of the victim's head. State v. Lamb, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 891 (Tenn. Crim. App. Nov. 30, 2016).

Evidence, including the victim's testimony, was sufficient to support defendant's convictions for aggravated rape because the first count of aggravated rape was accomplished through force or coercion when defendant threatened the victim at knife-point and the second count of aggravated rape was accomplished when the victim suffered bodily injury through cuts to the hand. Furthermore, other witnesses testified as to how distraught the victim appeared, while a police officer testified to finding a knife in the bedroom where the incident occurred. State v. Bowles, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 727 (Tenn. Crim. App. Aug. 15, 2017).

Proof was sufficient to sustain defendant's conviction for aggravated rape based on his own act of sexually penetrating the victim because the jury accredited the victim's testimony that defendant sexually penetrated her without her consent and that defendant caused the bodily injury to the victim; photographs admitted at trial corroborated a nurse's testimony regarding the victim's injury to her vagina. State v. Foster, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 222 (Tenn. Crim. App. Apr. 9, 2019).

2. Coercion.

Where defendant performed oral sex and anal intercourse on one of his 13-year-old victims without force or threat, there was no “coercion,” and a rape conviction was modified to statutory rape. State v. McKnight, 900 S.W.2d 36, 1994 Tenn. Crim. App. LEXIS 759 (Tenn. Crim. App. 1994), appeal denied, — S.W.2d —, 1995 Tenn. LEXIS 58 (Tenn. 1995), overruled, State v. Collier, 411 S.W.3d 886, 2013 Tenn. LEXIS 636 (Tenn. Aug. 12, 2013).

In prosecutions for rape and sexual battery, evidence that defendant threatened to tell people that victim was a homosexual if he did not cooperate was sufficient for the jury to find the element of coercion. State v. McKnight, 900 S.W.2d 36, 1994 Tenn. Crim. App. LEXIS 759 (Tenn. Crim. App. 1994), appeal denied, — S.W.2d —, 1995 Tenn. LEXIS 58 (Tenn. 1995), overruled, State v. Collier, 411 S.W.3d 886, 2013 Tenn. LEXIS 636 (Tenn. Aug. 12, 2013).

Actions of defendant in threatening a juror with loss of her job if she did not vote as he wished during grand jury deliberations constituted coercion of a juror. State v. Brewer, 945 S.W.2d 803, 1997 Tenn. Crim. App. LEXIS 25 (Tenn. Crim. App. 1997).

Evidence, including the victim's testimony, was sufficient to support defendant's convictions for aggravated rape because the first count of aggravated rape was accomplished through force or coercion when defendant threatened the victim at knife-point and the second count of aggravated rape was accomplished when the victim suffered bodily injury through cuts to the hand. Furthermore, other witnesses testified as to how distraught the victim appeared, while a police officer testified to finding a knife in the bedroom where the incident occurred. State v. Bowles, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 727 (Tenn. Crim. App. Aug. 15, 2017).

Evidence was sufficient to support defendant's conviction for coercion of a witness because during a phone call, defendant threatened to kill defendant's spouse by putting a bomb in the spouse's car if the spouse did not drop the spouse's charges against defendant. From this, the jury reasonably could have inferred that defendant threatened to kill defendant's spouse in an attempt to influence the spouse, as a prospective witness in the domestic assault case, to avoid testifying against defendant. State v. Jackson, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 353 (Tenn. Crim. App. May 14, 2020).

3. Criminal Negligence.

The statutory definition of criminal negligence is not unconstitutionally vague. State v. Butler, 880 S.W.2d 395, 1994 Tenn. Crim. App. LEXIS 213 (Tenn. Crim. App. 1994).

For conduct to constitute criminal negligence the accused must know, or should know, that his or her conduct, or the result of that conduct, will imperil the life of another given the circumstances that exist when the conduct takes place. State v. Adams, 916 S.W.2d 471, 1995 Tenn. Crim. App. LEXIS 876 (Tenn. Crim. App. 1995).

Tennessee law did not preclude drag racer's conviction for criminally negligent homicide because the victims, other drag racer and passenger, were co-perpetrators in the underlying crime of drag racing. State v. Farner, 66 S.W.3d 188, 2001 Tenn. LEXIS 832 (Tenn. 2001), rehearing denied, 66 S.W.3d 188, 2002 Tenn. LEXIS 20 (Tenn. 2002).

While defendant was caring for the five-year-old victim, and where he consumed beer and marijuana and took the victim swimming at a lake without notifying his parents or supervising his activities, defendant's conduct met the definition of criminal negligence under T.C.A. § 39-11-106(a); upon the victim's death by drowning, evidence was sufficient to support defendant's conviction for criminally negligent homicide under T.C.A. § 39-13-212(a). State v. Campbell, 245 S.W.3d 331, 2008 Tenn. LEXIS 9 (Tenn. Jan. 18, 2008).

Trial court did not err by defining criminally negligent homicide for the jury because it defined criminal negligence as stated in the first sentence of this section and the risk as stated in the second sentence of the statute. State v. Maupin, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 879 (Tenn. Crim. App. Sept. 28, 2017).

Trial court did not abuse its discretion by denying defendant judicial diversion for his criminally negligent homicide conviction because his amenability to correction as evidenced by his failure to see that he did anything wrong, the egregious circumstances of the offense of his driving a fully-loaded tractor trailer with very little sleep and under the influence, and the deterrence value to other similarly-situated individuals, as well as the interests of justice, substantially outweighed the factors in favor of judicial diversion. State v. Maupin, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 879 (Tenn. Crim. App. Sept. 28, 2017).

Evidence supported defendant's criminally negligent homicide and aggravated child neglect convictions because, based on defendant's testimony, the jury could have found that defendant acted knowingly when defendant took medication, placed the infant victim in a bed in an unsafe sleeping environment, and fell asleep which resulted in the victim's death. Moreover, the jury could have determined that defendant was criminally negligent in that the victim should have known that the victim's actions were a gross deviation from the standard of care. State v. Buchanan, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 844 (Tenn. Crim. App. Nov. 15, 2018).

Even though the trial court erred by failing to instruct the jury on the lesser-included offenses of reckless homicide and criminally negligent homicide relative to the felony murder charge, as the key issue in the case was defendant's mental state, the error was harmless because the jury was properly instructed on all lesser-included offenses in the first degree premeditated murder count, including reckless homicide and criminally negligent homicide, and the jury's guilty verdict in that count entailed finding that defendant acted with premeditation, rejecting that he acted recklessly or in self-defense. State v. Odom, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 157 (Tenn. Crim. App. Feb. 28, 2020).

Evidence supported defendant's criminally negligent homicide conviction because defendant arrived and approached the victim at a dice game with a handgun and the intent to take money from the victim, an altercation ensued, and codefendant took the handgun and shot the victim multiple times. Defendant was aware of, but disregarded, the risk created by displaying a firearm at the victim and defendant's failure to perceive the risk was a gross deviation from the standard of care that an ordinary person would have exercised. State v. Moore, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 352 (Tenn. Crim. App. May 15, 2020).

4. Deadly Weapon.

A motor vehicle can constitute a deadly weapon. State v. Tate, 912 S.W.2d 785, 1995 Tenn. Crim. App. LEXIS 683 (Tenn. Crim. App. 1995).

A hard plastic BIC(R) or Papermate(R) type pen is capable of causing either “extreme pain” or “obvious disfigurement,” and therefore defendant's use of the pen during his assault as a deadly weapon supported his conviction for aggravated assault. State v. Eaves, 959 S.W.2d 601, 1997 Tenn. Crim. App. LEXIS 138 (Tenn. Crim. App. 1997).

Fists and feet are not deadly weapons under T.C.A. § 39-11-106(a). State v. Flemming, 19 S.W.3d 195, 2000 Tenn. LEXIS 157 (Tenn. 2000).

Evidence was sufficient to support defendant's convictions on two counts of aggravated child abuse by use of a deadly weapon for incidents occurring on two separate dates, because the victim testified that defendant abused him with a heavy-duty extension cord wrapped with coat hangers and duct tape, because several witnesses corroborated the victim's testimony regarding injuries to his face and neck, and because the prosecution introduced photographs of these injuries at trial; however, the case was remanded for new trials because the trial court abused its discretion in consolidating the indictments. State v. Toliver, 117 S.W.3d 216, 2003 Tenn. LEXIS 857 (Tenn. 2003).

Evidence was sufficient to support conviction of conspiracy to commit especially aggravated robbery because the metal flashlight as used was properly classified as a deadly weapon, and testifying co-defendant admitted that there was discussion that defendant would knock the victim out if the victim awoke. State v. Downey, 259 S.W.3d 723, 2008 Tenn. LEXIS 536 (Tenn. Aug. 15, 2008).

Court overruled defendant's assertion that the state failed to prove use of a deadly weapon because a flashlight, as used by defendant to strike the victim in the head several times, was capable of causing serious bodily injury; defendant hit the victim over the head with the flashlight multiple times, causing potentially life-threatening head injuries which left the victim in the hospital for over a month. State v. Downey, 259 S.W.3d 723, 2008 Tenn. LEXIS 536 (Tenn. Aug. 15, 2008).

Evidence was sufficient to support defendant's conviction of especially aggravated robbery, as he used an object consistent with a hammer to cause trauma to the victim's head, and he used pantyhose to strangle her, and both items, in the manner in which they were used, were capable of causing death or serious bodily injury; the jury accepted the State's contention that defendant assaulted and killed the victim for the purpose of stealing her personal possessions, and the evidence would not be reweighed on appeal. State v. Smithson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 105 (Tenn. Crim. App. Feb. 12, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 502 (Tenn. June 23, 2016).

Evidence supported defendant's conviction for aggravated assault by use of a skillet as a deadly weapon because the victim, defendant's then spouse, after arguing and consuming alcohol with defendant for some time before falling asleep on a sofa was jarred awake when defendant struck the victim in the head with an iron skillet, causing the victim pain and leaving the victim with a large knot and a cut on the top of the victim's head. State v. Lamb, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 891 (Tenn. Crim. App. Nov. 30, 2016).

Evidence was sufficient to convict defendant of especially aggravated robbery because he came onto the victim's porch and began hitting the victim with a metal stick with a ball on the end of it that extended; he then entered the victim's home without his permission while forcing the victim onto the living room floor; he tied the victim's wrists and legs with an electrical cord and blind cord while he kneeled on the victim's back; as a result of defendant's offenses, the victim suffered blunt force injuries, bruises, abrasions, broken ribs, internal bleeding, and eventually died from a stress heart attack; and it was within in the jury's prerogative to find that the metal stick that defendant carried was a deadly weapon. State v. Keene, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 25 (Tenn. Crim. App. Jan. 12, 2018).

Evidence was sufficient to support defendant's aggravated assault conviction because a rational jury could have found that he knowingly caused the victim to reasonably fear imminent bodily injury by the manner in which he displayed a deadly weapon, the baseball bat, because he approached the victim in an aggressive manner, the victim feared he would be struck and jumped into a nearby car to avoid harm, and based on defendant's threats earlier in the day it was reasonable for the victim to believe that defendant presented a real, immediate threat to his safety. State v. Fisher, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 453 (Tenn. Crim. App. June 20, 2018).

Defendant's aggravated assault conviction was proper, as he said he intentionally rammed the victims'  small car with his tractor-trailer because the driver pulled out in front of him and then tapped her brakes, plus defendant caused bodily injury to both victims with the use of a deadly weapon, his tractor-trailer; defendant's statement that he intentionally hit the vehicle was sufficient to establish the reckless mens rea. State v. Smith, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 632 (Tenn. Crim. App. Aug. 20, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 676 (Tenn. Nov. 14, 2018).

Evidence supported defendant's multiple reckless aggravated assault convictions because defendant acted recklessly as a witness testified that defendant was driving in the wrong direction on an interstate highway when defendant's SUV hit the victims'  car head-on and crash reconstructionists testified that defendant's SUV was driving in the wrong direction and that the SUV's crash data recording system reflected that the SUV accelerated just before impact. State v. Pena, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 761 (Tenn. Crim. App. Oct. 8, 2018).

Evidence was sufficient to convict defendant of two counts of aggravated assault with a deadly weapon on two law enforcement officers because defendant intentionally and knowingly used his vehicle as a deadly weapon, causing both officers to reasonably fear imminent bodily injury as defendant placed his vehicle into reverse and rammed into the officers'  vehicle with enough force to cause it to spin over 90 degrees; and an automobile could be considered a deadly weapon. State v. Baker, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 341 (Tenn. Crim. App. June 7, 2019).

5. Deprive.

Accountant's admission that he had misappropriated funds from clients and failed to report the amount on his federal income tax established that he committed theft of property under § 39-14-103 since he had “deprived” the owners of their property even if he had intended to return it. United States v. Parrott, 148 F.3d 629, 1998 FED App. 200P, 1998 U.S. App. LEXIS 15001 (6th Cir. Tenn. 1998).

Trial court's failure to give lesser-included instructions on robbery and theft was not plain error because robbery and theft were not lesser-included offenses of carjacking; the definition of theft contained a statutory element that was not included within the statutory elements of carjacking, namely an intent to deprive another of his or her motor vehicle, and because robbery included all of the elements of theft within its statutory elements, robbery was also not a lesser-included offense of carjacking. State v. Wilson, 211 S.W.3d 714, 2007 Tenn. LEXIS 22 (Tenn. 2007).

There was sufficient evidence to support a theft conviction where defendant left the scene of the murder in a truck with a plate that was stolen, and the identification number of a truck that was found in Arkansas was traced to the truck defendant used to flee a murder scene. State v. Blocker, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 372 (Tenn. Crim. App. May 18, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 650 (Tenn. Sept. 22, 2016).

Sufficient evidence supported defendant's conviction for theft of real property because the evidence showed defendant (1) sought to obtain record title to the property, and (2) physically occupied the property, showing an intent to permanently deprive a bank of the property. State v. Gentry, — S.W.3d —, 2017 Tenn. LEXIS 733 (Tenn. Nov. 29, 2017).

6. Effective Consent.

Defendant relied upon the false impression he had created and reinforced to get inside the victim's home, and, once inside, accomplished the felonious deed which prompted his entry. Thus, having peaceably gained entry by deception, defendant's entry into the victim's home cannot be deemed with “effective consent.” State v. Holland, 860 S.W.2d 53, 1993 Tenn. Crim. App. LEXIS 288 (Tenn. Crim. App. 1993).

Defendant's three burglary convictions, arising from his entry into a laundromat during regular business hours and his subsequent stealing of money from video game machines and a soap dispenser, were reversed because the evidence was insufficient to support the convictions, as defendant had the owners'  effective consent to enter the laundromat; the laundry facility, which was often unattended, was open and unlocked for persons to enter the premises, and it was apparent to a person who approached the laundromat during the hours it was open for business that the person had the owners' consent to enter. State v. Ferguson, 229 S.W.3d 312, 2007 Tenn. Crim. App. LEXIS 275 (Tenn. Crim. App. Mar. 28, 2007).

Defendant was properly convicted for theft of property valued at $1,000 or more but less than $10,000 because defendant intended to deprive the victim of the victim's money by deceiving the victim into purchasing a counterfeit ring for $8,000 which was worth no more than $2,000, and defendant acted knowingly. State v. Dixon, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 797 (Tenn. Crim. App. Oct. 26, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 137 (Tenn. Feb. 23, 2017).

For purposes of the burglary statute, a retail store does not effectively consent to a banned person's entry into the store simply because that individual enters the store to carry on a commercial activity; and the failure to detect or to even prosecute a criminal act, criminal trespass, does not prohibit enforcement or prosecution of subsequent criminal act. A retail store's failure to recognize a banned individual who enters its buildings does not amount to assent in fact, whether express or apparent, for the banned individual to enter the retail store based on the statutory definition of effective consent. State v. Ivey, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 789 (Tenn. Crim. App. Oct. 23, 2018), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 245 (Tenn. Mar. 26, 2020).

Because the jury charge on effective consent was at worst incomplete, not erroneous, and the issue was waived by defendant's failure to make a contemporaneous objection. State v. Hefner, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 381 (Tenn. Crim. App. July 2, 2019).

Trial court did not commit plain error by failing to specify whether “effective consent” related to entry into the building or to the theft because the jury instructions were clear enough for the jury to determine that defendant did not have consent to enter a store or to steal property; an asset protection associate of the store testified that defendant did not have permission to enter the store and did not have permission to conceal merchandise down his pants. State v. Hefner, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 381 (Tenn. Crim. App. July 2, 2019).

7. Force.

Where there was proof that defendant “held down” one of his 13-year-old victims and performed oral sex on him, the jury could have found “force” sufficient for conviction of rape. State v. McKnight, 900 S.W.2d 36, 1994 Tenn. Crim. App. LEXIS 759 (Tenn. Crim. App. 1994), appeal denied, — S.W.2d —, 1995 Tenn. LEXIS 58 (Tenn. 1995), overruled, State v. Collier, 411 S.W.3d 886, 2013 Tenn. LEXIS 636 (Tenn. Aug. 12, 2013).

While “force” and “violence” are obviously related, the terms are not synonymous. In effect, violence is a more severe degree of force. State v. Fitz, 19 S.W.3d 213, 2000 Tenn. LEXIS 167 (Tenn. 2000).

Evidence was sufficient to convict defendant of resisting arrest because defendant ignored officers'  orders to come out from underneath a vehicle and had to be dragged out; defendant then refused to place his arms behind his back so that he could be handcuffed; and defendant struggled with the arresting officers before an investigator was able to place handcuffs on him. State v. Baker, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 341 (Tenn. Crim. App. June 7, 2019).

Evidence was insufficient to support defendant's rape conviction because there was no evidence of force or coercion, as the victim recanted her allegation at trial, defendant's confession included no details that could be construed as force or coercion, and the State was not permitted to use the victim's statements contained on a video recording as substantive evidence of defendant's guilt as it did not satisfy the requirements of Tenn. R. Evid. 803(26) and it did not seek the admission of the video. State v. Wyse, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 687 (Tenn. Crim. App. Oct. 20, 2020).

8. Fraud.

In a prosecution for sexual battery by means of fraud, where the victim reasonably relied upon a belief that defendant's touching was for medical purposes, his allowing the touching would not constitute such a consent that would make the contact lawful so as to preclude a conviction. State v. Tizard, 897 S.W.2d 732, 1994 Tenn. Crim. App. LEXIS 750 (Tenn. Crim. App. 1994).

9. Handgun.

Where a detainee openly carried a Draco AK-47 pistol at a state park and was detained and disarmed, the detainee's Fourth Amendment claim failed because: (1) The AK-47, carried openly and fully loaded through a state park, gave the park ranger ample reason for suspicion that the detainee possessed an illegal firearm since the barrel was a half-inch shy of the legal limit, and, when coupled with a thirty-round ammunition clip, it reasonably could look more like a rifle than a handgun; and (2) The officers stopped the detainee only as long as it took to investigate the legitimacy of the weapon and bring a supervisor to the park. Embody v. Ward, 695 F.3d 577, 2012 FED App. 293P, 2012 U.S. App. LEXIS 18399 (6th Cir. Aug. 30, 2012).

Evidence supported defendant's conviction for being a convicted felon in possession of a firearm because witnesses testified that defendant approached and attempted to speak to the victim moments before the victim was shot, the driver of the car in which defendant was riding testified that defendant shot the victim, a forensic scientist testified that the bullet that was retrieved from the victim's heart was fired from defendant's .25 caliber pistol, and an inmate testified that defendant spoke about the shooting when they were incarcerated. State v. Davis, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 54 (Tenn. Crim. App. Jan. 26, 2018).

10. Intentional and Knowing.

Where the defendant was aware of, but consciously disregarded, the risk of serious bodily injury to the victim, in such a fashion as to constitute a gross deviation from the standard of care that an ordinary person would have exercised, the defendant's conduct could easily sustain a determination that his conduct was intentional and knowing, as well. The defendant's conduct was a proximate cause of the victim's serious bodily injury so as to justify a conviction for aggravated assault. State v. Baggett, 836 S.W.2d 593, 1992 Tenn. Crim. App. LEXIS 348 (Tenn. Crim. App. 1992).

Second degree murder was a result-of-conduct offense, and allowing the jury to convict based upon awareness of the nature of the conduct or circumstances surrounding the conduct erroneously lessened the state's burden of proof for the offense; the error in a jury charge regarding the “knowing” element was not harmless, because the only real issue at trial was the degree of homicide committed, which in turn rested upon the mens rea and appropriate conduct element. State v. Page, 81 S.W.3d 781, 2002 Tenn. Crim. App. LEXIS 332 (Tenn. Crim. App. 2002).

Evidence was sufficient for the jury to have determined that defendant acted with premeditation; defendant threatened to kill the victim prior to the shooting and was angry with the victim on the morning of the incident, defendant admitted shooting at the victim, who was hit at least twice in the head, the jury could have inferred that defendant exercised reflection and judgment in forming the intent to kill the victim, and the jury rejected defendant's claim of self-defense. State v. Jackson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 38 (Tenn. Crim. App. Jan. 8, 2016).

Evidence established that defendant intentionally killed the victim with premeditation; defendant was not armed during his original altercation with the victim, then later appeared without warning and shot the victim, who was unarmed, and the jury could have determined that sufficient time had passed for defendant to have acted after reflection and with premeditation, not with excitement and passion. State v. Johnson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 338 (Tenn. Crim. App. May 4, 2016).

Doctor testified that the minor victim's tongue injury could have been caused by either non-accidental or accidental means, which provided sufficient evidence for a jury to have found that the injury was the result of non-accidental conduct, and therefore was knowing relative to the conduct involved or to the circumstances surrounding the conduct, for purposes of defendant's aggravated child abuse conviction. State v. Love, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 667 (Tenn. Crim. App. Sept. 7, 2016).

Evidence was sufficient to support defendant's conviction of cruelty to animals because several witnesses testified as to the condition of the horses and the lack of any grass or hay, defendant had been previously warned that her horses were being underfed, several months later she had failed to remedy the situation, and one horse's spine, ribs, and hip bones were all visible and her foal was undersized due to mare malnutrition. State v. Wood, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1028 (Tenn. Crim. App. Dec. 14, 2017).

Evidence supported defendant's aggravated child abuse conviction because an expert in forensic pathology, who performed the one-year-old victim's autopsy, testified that the victim, defendant's stepchild, died from multiple blunt force injuries and because the jury heard recordings of defendant's statements that were made during a police interview as to what happened. It was reasonable for the jury to conclude that defendant knowingly inflicted the victim's extensive injuries, other than by accidental means, while in defendant's sole care. State v. Batiz, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 721 (Tenn. Crim. App. Nov. 1, 2019).

Evidence supported defendant's second degree murder conviction because codefendant brought a handgun to take money from the victim, an altercation occurred, defendant obtained the gun during the altercation, defendant pointed the gun at the victim and fired it multiple times, and the gunshot wounds resulted in the victim's death. Defendant acted with an awareness that defendant's conduct was reasonably certain to cause the victim's death. State v. Moore, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 352 (Tenn. Crim. App. May 15, 2020).

Defendant acted with the intent to kill and with premeditation in that defendant traded handguns for a high-powered assault rifle; defendant stopped defendant's car at a red light on a street, lowered the window, pointed the rifle toward an unarmed group of people on a sidewalk who did not provoke defendant, and fired a shot, paused, and fired a second shot; and defendant fled the scene and disposed of the rifle during a high-speed police pursuit. State v. Corbin, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 664 (Tenn. Crim. App. Oct. 9, 2020).

11. Owner.

Evidence was sufficient to support convictions for aggravated robbery because, even though no money was taken from a store employee personally, a clerk operating a cash register was considered the “owner” of property for purposes of aggravated robbery. Moreover, defendant was apprehended a few blocks from the store wearing a torn t-shirt, the victim's wallet and store receipts were found near defendant, the victim identified defendant as the perpetrator, and a clothing fragment found in the store's parking lot matched the hole in defendant's t-shirt. State v. Minter, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 86 (Tenn. Crim. App. Feb. 8, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 439 (Tenn. June 24, 2016).

Although defendant contended that the corporate owner of a building was improperly identified in the indictment for vandalism and burglary of a building, the indictment listed the statute of the offenses for which defendant was indicted, giving defendant sufficient notice of the charges against defendant. The evidence introduced at trial did not substantially vary from the information on the indictment, and there was no evidence that defendant's efforts at defending against the charges were hampered by the notice given by the indictment. Walton v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 363 (Tenn. Crim. App. May 10, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 601 (Tenn. Sept. 22, 2017).

Evidence was sufficient to support defendant's vandalism conviction under T.C.A. § 39-14-408(b)(1), as he admitted he caused the damage to the trailer and offered to repair the damage, plus he showed the officer copper wires in his possession and acknowledged that he obtained items from the trailer; by finding defendant guilty, the jury accredited the victim's testimony, which stated that he was the owner of the trailer, for purposes of T.C.A. § 39-11-106(a)(26). State v. Watson, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 736 (Tenn. Crim. App. Aug. 17, 2017).

12. Serious Bodily Injury.

A head injury which was so severe that it first led the victim and others to believe she had suffered a fractured skull, and caused severe pain and dizziness in the victim constituted “serious bodily injury” within the meaning of T.C.A. §§ 39-11-106 and 39-14-404. State v. Holland, 860 S.W.2d 53, 1993 Tenn. Crim. App. LEXIS 288 (Tenn. Crim. App. 1993).

In a prosecution for aggravated rape, proof that defendant caused the victim to suffer excruciating pain, caused a bruise on her leg, broke a scab on her knee causing it to bleed, scratched her neck when he choked her, and injured her lip established “bodily injury” within the meaning of the statute. State v. McPherson, 882 S.W.2d 365, 1994 Tenn. Crim. App. LEXIS 109 (Tenn. Crim. App. 1994).

Evidence that the victim of a robbery suffered a broken nose, a bruised cheekbone, and a laceration across the bridge of her nose was not sufficient proof of serious bodily injury to support a conviction of especially aggravated robbery. State v. Sims, 909 S.W.2d 46, 1995 Tenn. Crim. App. LEXIS 392 (Tenn. Crim. App. 1995), overruled, State v. Osborne, — S.W.3d —, 1999 Tenn. Crim. App. LEXIS 465 (Tenn. Crim. App. May 12, 1999), overruled in part, State v. Osborne, — S.W.3d —, 1999 Tenn. Crim. App. LEXIS 465 (Tenn. Crim. App. May 12, 1999), overruled, State v. Price, — S.W.3d —, 1999 Tenn. Crim. App. LEXIS 1154 (Tenn. Crim. App. Nov. 24, 1999), overruled in part, State v. Lowery, — S.W.3d —, 2000 Tenn. Crim. App. LEXIS 457 (Tenn. Crim. App. June 12, 2000).

Bite wound to victim's arm did not constitute “serious bodily injury” sufficient to support conviction for aggravated assault. State v. Barnes, 954 S.W.2d 760, 1997 Tenn. Crim. App. LEXIS 198 (Tenn. Crim. App. 1997).

Convictions of especially aggravated robbery, T.C.A. § 39-13-403(a)(1), (2), were vacated because there was insufficient proof that the victim's gunshot wound was a serious bodily injury; serious bodily injury was not established under T.C.A. § 39-11-106(a)(34)(B)-(E) because there was no evidence that the injury involved a loss of consciousness, no proof that the victim suffered extreme physical pain, and nothing supported an inference that the injury involved protracted or obvious disfigurement, or protracted loss or substantial impairment of a function of a bodily member, organ, or mental faculty. Finally, serious bodily injury was not established under § 39-11-106(a)(34)(A) because courts had to look to the injury that occurred rather than the injury that could have occurred or the manner in which it occurred. State v. Farmer, 380 S.W.3d 96, 2012 Tenn. LEXIS 513 (Tenn. Aug. 22, 2012).

Evidence supported the serious bodily injury element of defendant's conviction for aggravated robbery, as the medical examiner confirmed that the victim had been shot at least twice with a .45 caliber weapon, and also described the victim's serious bodily injuries, stating that one of the wounds caused almost immediate death, while the other bullet caused injuries to the victim's neck, shoulder, and arm. State v. Wagner, 382 S.W.3d 289, 2012 Tenn. LEXIS 746 (Tenn. Oct. 12, 2012).

Child abuse victims did not suffer pain to the degree necessary to qualify as serious bodily injury; although they testified that defendant had choked them until they stopped breathing or passed out, neither testified that their loss of consciousness lasted for more than a brief period. State v. Mathis, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 779 (Tenn. Crim. App. Sept. 26, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 211 (Tenn. Feb. 25, 2013), cert. denied, Mathis v. Tennessee, 187 L. Ed. 2d 51, 134 S. Ct. 60, — U.S. —, 2013 U.S. LEXIS 5552 (U.S. 2013).

Evidence was insufficient to support a finding of bodily injury because, although the alleged child sexual assault victim testified that it felt bad when defendant touched the victim, the medical examination of the victim did not reveal any bruises, cuts, or abrasions. The appellate court was hard pressed to find that “it felt bad” equated to the injury required for child abuse. State v. Howard, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 627 (Tenn. Crim. App. Aug. 4, 2015), aff'd in part, rev'd in part, 504 S.W.3d 260, 2016 Tenn. LEXIS 725 (Tenn. Oct. 12, 2016).

In connection with his convictions of aggravated rape and aggravated kidnapping, defendant did not challenge the application of three enhancement factors, and his only complaint was that the trial court discounted the mitigating factor that his conduct neither caused nor threatened serious injury; while it was arguable whether a migraine headache fit the definition of serious injury, the trial court did not err in giving no weight to this proposed mitigating factor, the sentences imposed were within the appropriate ranges, and the trial court adequately considered the purposes of sentencing. State v. Jones, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 460 (Tenn. Crim. App. June 29, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 684 (Tenn. Sept. 22, 2016).

Evidence was sufficient to sustain defendant's convictions for aggravated assault because defendant used his vehicle to ram into a victim several times, injuring her severely; defendant drove his vehicle at another victim, who fell while trying to get away but was able to get up and run away, and that victim specifically testified that he was scared when defendant was driving toward him. State v. Rush, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 507 (Tenn. Crim. App. July 15, 2016).

Minor victim's tongue had a one-and-one-half centimeters cut, but the injury only required observation during a six-week healing period, the victim suffered no complications, and the tongue barely had dimple after it healed; thus, for purposes of defendant's aggravated child abuse conviction resulting in serious bodily injury, although the evidence sufficiently established that the victim suffered bodily injury, a rational jury could not have found that the injury constituted serious bodily injury. State v. Love, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 667 (Tenn. Crim. App. Sept. 7, 2016).

Evidence was sufficient to support a jury finding that the victim sustained serious bodily injury as an element of especially aggravated robbery. The serious bodily injury element was based on a gaping gash on the side of the victim's neck, and this injury was inarguably the result of the crime. State v. Heath, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 791 (Tenn. Crim. App. Oct. 21, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 34 (Tenn. Jan. 20, 2017).

Evidence was sufficient to support defendant's conviction of attempted first-degree murder resulting in serious bodily injury where the victim testified that he suffered five gunshot wounds, classified his pain as the worst he had felt in his life, and testified that he was still in pain a year later, had permanent scarring from the gunshot wounds, and lost complete function of his right arm. State v. Vaughn, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 906 (Tenn. Crim. App. Dec. 6, 2016).

Victim's testimony that his pain was such that he was unable to lie down or sleep for the first two days following the assault and that he experiences such extreme vertigo that he repeatedly vomited was sufficient for the jury to find that the victim suffered a serious bodily injury as required for aggravated assault. State v. Jones, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 618 (Tenn. Crim. App. July 14, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 653 (Tenn. Oct. 6, 2017).

Evidence was sufficient to convict defendant of aggravated assault as the victim suffered serious bodily injury because the victim was intentionally assaulted by defendant when he exited the market and refused to share his beer and/or cigarettes; two men got the victim on the ground and proceeded to kick and punch him; the beating resulted in a broken nose, a dislocated jaw, a torn eyelid, a detached optical nerve, and multiple bruises; the victim had blood squirting out of his eye nearly a day after the incident; the victim rated his pain as above 10; and the victim required jaw surgery and was now permanently blind in one eye. State v. Palmer, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 637 (Tenn. Crim. App. July 19, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 797 (Tenn. Nov. 16, 2017).

Evidence was sufficient to convict defendant of especially aggravated kidnapping because he came onto the victim's porch, struck the victim, and forced the victim back into the residence; he then pushed the victim to the living room floor and pinned the victim down by placing his knee on the victim's back; he tied the victim's wrists and legs together in the “hogtied” position; he and another person left the victim's residence while the victim was still tied up and lying on the floor; the victim sustained contusions, abrasions, broken ribs, blunt force injuries, and eventually died from a heart attack from the stress of the offenses; and the jury could have found that the victim suffered serious bodily injury. State v. Keene, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 25 (Tenn. Crim. App. Jan. 12, 2018).

Although defendant argued that defendant acted in self-defense, the evidence supported defendant's conviction for domestic assault because the victim and eyewitnesses testified that defendant struck the victim, whom defendant had dated at times over the years, but never married, during an exchange of custody of their infant son in a store parking lot. Although defendant argued that defendant acted in self-defense, the evidence supported defendant's conviction for domestic assault because the victim and eyewitnesses testified that defendant struck the victim, whom defendant had dated at times over the years, but never married, during an exchange of custody of their infant son in a store parking lot. The victim suffered cuts to the victim's nose in the altercation. State v. Glenn, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 172 (Tenn. Crim. App. Mar. 5, 2018).

Evidence was sufficient to convict defendant mother of aggravated child neglect because she acknowledged that she noticed blisters on the 10-month-old victim on a Wednesday and Thursday; defendant was told that the victim should be taken to a doctor or a children's hospital; defendant did not take the victim for medical treatment until she was forced to do so five or six days after he was injured; 15% of his total body surface was covered with second degree burns; the first two or three days of the victim's burns were the most painful; he could have been treated immediately with narcotics and steroids to lessen the swelling and decrease the pain from his eye injuries; and the lack of medical treatment caused him to suffer excruciating pain. State v. Lopez, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 188 (Tenn. Crim. App. Mar. 13, 2018).

Although petitioner waived the issue, his claims of ineffective assistance related to the failure to argue that the victim did not suffer serious bodily injury still failed, as counsel testified that he could not make a good faith argument to that effect, the post-conviction court determined this was a matter of trial strategy, and the court agreed on review. Dyer v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 217 (Tenn. Crim. App. Mar. 22, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 409 (Tenn. July 18, 2018).

Testimony that the victim's nose was broken, eye and ear were cut, his hearing aid was driven into his ear, he required stitches, and he was in physical pain was sufficient to support a finding of serious bodily injury. State v. Martin, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 735 (Tenn. Crim. App. Apr. 3, 2018).

Because the rape of a child necessarily involved mental suffering—or at least a threat of such—within the meaning of serious bodily injury, the mitigating factor under T.C.A. § 40-35-113(1) was inapplicable to defendant's offenses. State v. Kimble, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 826 (Tenn. Crim. App. Nov. 7, 2018).

Evidence was sufficient to convict the first, second, and third defendants of especially aggravated kidnapping because defendants knowingly confined the victim by hanging her by her arms from the ceiling in order to inflict serious bodily injury upon her; and, although each defendant argued that the victim voluntarily submitted to the BDSM (bondage and discipline, dominance and submission, and sadism and masochism) lifestyle and her role as a house slave, the evidence did not support the argument that the victim consented to having her liberty restricted so that she could be beaten to death. State v. Reynolds, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 864 (Tenn. Crim. App. Nov. 28, 2018).

Because defendant was convicted of both especially aggravated burglary and aggravated assault based on the same serious bodily injury to the victim, defendant's especially aggravated burglary conviction had to be reduced to aggravated burglary. State v. Fykes, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 441 (Tenn. Crim. App. July 22, 2019).

Evidence was sufficient to convict defendant of especially aggravated burglary and aggravated assault because defendant did not reside at the victim's house and he entered without the victim's effective consent as he did not have a key to the victim's house, and he entered by throwing a cinder block through a window; and the victim suffered serious bodily injury as she had significant swelling and pain, a broken nose, a fractured jaw, multiple contusions, and permanent vision impairment. State v. Fykes, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 441 (Tenn. Crim. App. July 22, 2019).

Evidence was sufficient to support the element of serious bodily injury as required to establish the offense of especially aggravated robbery because as a result of the robbery, the victim suffered permanent scarring on his head and inside of his lip, and photographs of the same were admitted into evidence at trial. State v. Darvin, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 571 (Tenn. Crim. App. Sept. 17, 2019).

Definition of serious bodily injury under T.C.A. § 39-11-106(a)(34) was inapplicable for purposes of terminating a parent's rights on the ground of severe child abuse, and instead, T.C.A. § 37-1-102(b)(27) governed. In re Imerald W., — S.W.3d —, 2020 Tenn. App. LEXIS 43 (Tenn. Ct. App. Jan. 31, 2020).

Evidence was sufficient to establish serious bodily injury, and therefore defendant's conviction of especially aggravated kidnapping was affirmed, because the record showed that defendant repeatedly struck the victim resulting in her losing consciousness multiple times, defendant had to support her while walking, she could not shower or walk from the shower to the hotel bed unassisted, her eyes were so swollen from the beating that she could not see the hotel telephone and had to feel around for the cord, and she suffered a laceration on her head that bled, a hematoma to the back of the head, extremely swollen facial features that prevented paramedics from examining the victim's eyes and mouth, a broken nose and eye socket that required surgery, and a neck sprain. State v. Evans, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 623 (Tenn. Crim. App. Sept. 18, 2020).

Evidence was sufficient to convict defendant of aggravated assault and domestic assault because the victim suffered serious bodily injury after being hit and then kicked in the face multiple times by defendant; her left eye was swollen shut, and the left side of her face was heavily bruised; the victim testified that she still experienced facial pain from the assault, and her eye still did not completely open; defendant and the victim had been dating for approximately two years and had been living together; and defendant did not act in self-defense as he was not in danger of death or serious bodily injury at the time he dragged the victim out of the truck and then kicked her in the face multiple times. State v. Porter, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 654 (Tenn. Crim. App. Oct. 6, 2020).

Evidence was sufficient to find defendant guilty of especially aggravated robbery as a principle offender or under a theory of criminal responsibility because defendant and his accomplices pointed their guns at the victim; the victim gave them his wallet, and one of them took the victim's money from the victim's hand and also demanded the victim's cell phone; the victim punched the individual when he reached for the victim's cell phone, and one of the accomplices ran up to the victim and shot him in the head; and the victim suffered serious bodily injury, and later died from his wound. State v. Lumpkin, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 809 (Tenn. Crim. App. Dec. 23, 2020).

13. Value.

Cost to repair the victims'  properties in a vandalism case was an appropriate measure of value. State v. Bolton, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1196 (Tenn. Crim. App. Jan. 31, 2014).

Evidence was sufficient to support defendant's vandalism conviction where it showed that the victim and two other testified to large amounts of wire being cut and removed from the house and a witness testified that the estimated cost of repair was $12,600. State v. Dawson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 550 (Tenn. Crim. App. July 27, 2016).

When defendant was convicted of theft of real property, the property was correctly valued at over $250,000, for sentencing purposes, because (1) the property's rental value was not the correct measure, as such a valuation was not statutorily authorized and defendant did not only intend to permanently deprive a bank of the property's rental value, and (2) the property was appraised at $3 million. State v. Gentry, — S.W.3d —, 2017 Tenn. LEXIS 733 (Tenn. Nov. 29, 2017).

There was sufficient evidence that the fair market value of the stolen property exceeded $ 10,000, given that the victim testified that the value of all of the items that were stolen was between $ 12,000 and $ 13,000, and while she agreed that she submitted a list to the police department stating that 40 pairs of shoes had been stolen, she explained that there had always been at least 100 pairs of shoes in storage, and the trier of fact was free to accredit the victim's testimony. State v. Firestone, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 103 (Tenn. Crim. App. Feb. 16, 2017).

State does not have to make an election of offenses in prosecutions for theft and vandalism as the State is permitted to aggregate the value of the stolen and vandalized property and prosecute the multiple thefts and acts of vandalism as a single offense. Because the indictment charged defendant with one count of theft and one count of vandalism that occurred between the fall of 2011 and January 2012, even though multiple acts of theft and vandalism might have occurred during that time, the acts were against the same owner, from the same location, and were committed pursuant to a continuing criminal impulse or a single sustained larcenous scheme, and the State could aggregate all of the theft and vandalism allegations into one indictment. State v. Sexton, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 730 (Tenn. Crim. App. Aug. 17, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 47 (Tenn. Jan. 18, 2018).

Evidence was sufficient to show that the value of the stolen goods was over than $1,000 because the victim testified that the value of the laptop was between $900 and $1,000 and the value of the camera was approximately $300. State v. Rembert, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 283 (Tenn. Crim. App. Apr. 16, 2018).

Trial court appropriately sentenced defendant for a Class E felony after applying the criminal saving's statute to the vandalism conviction because the punishment applicable to defendant's vandalism conviction moved from a Class D felony to a Class E felony under the amended theft statute, which provided defendant with a “lesser penalty” for his vandalism conviction; the victim stated defendant inflicted $ 2,000 in damages on her van. State v. Swinford, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 292 (Tenn. Crim. App. Apr. 17, 2018).

Defendant was properly convicted of theft of property over the value of $60,000 because he stipulated at trial that he admitted to police to forging the deeds that conveyed the three properties to him, two appraisals of the properties—one using a cost approach and the other a market value approach—determined the value of property at $60,000 or more, and the trial court did not abuse its discretion by allowing lay witnesses to testify that they believed that the appraised values of the properties were low. State v. Sears, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 686 (Tenn. Crim. App. Sept. 10, 2018), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 57 (Tenn. Jan. 18, 2019).

Evidence was sufficient to support defendant's conviction of felony vandalism because it showed that defendant used a forklift to pick up the victim's pickup truck and flip the truck on its side, the victim stated that his truck was in excellent condition and the insurance adjuster said that the truck was an average to above-average vehicle, the adjuster estimated that the cost to repair the truck was $9,488.24, and because the adjuster determined that the truck was totaled, the victim was written a check for $12,562.83, which was determined to be the value of the truck minus a $250 deductible. State v. Chambers, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 449 (Tenn. Crim. App. June 29, 2020).

14. Evidence.

15. —Sufficient.

There was ample evidence from which a rational trier of fact could conclude that appellant was guilty beyond a reasonable doubt of aggravated assault in a head-on collision with another car where the defendant was driving on the wrong side of the street, the day was clear, the roadway was dry, just a block or two prior to the collision, the defendant was seen, if not driving recklessly, at least driving in a careless, hurried, and anxious manner, the defendant had a blood alcohol level of .02 percent at 1:40 p.m. which would support a finding that his blood alcohol level would have been between .04 percent and .07 percent at the time of the collision (10:00 a.m.); the defendant falsely told a police officer at the scene that a friend was driving; and the defendant's explanation for driving on the wrong side of the road might well have been disbelieved by the jury. State v. Norris, 874 S.W.2d 590, 1993 Tenn. Crim. App. LEXIS 286 (Tenn. Crim. App. 1993), overruled in part, State v. Imfeld, 70 S.W.3d 698, 2002 Tenn. LEXIS 119 (Tenn. 2002).

Evidence was sufficient to support defendant's conviction of first-degree premeditated murder, as it showed that: (1) Defendant and his co-defendant decided to rob the victims instead of paying for the weapons; (2) Defendant was overheard saying that if they robbed the victims they would have to kill them because they knew defendants; (3) They carried handcuffs, rope, and duct tape to the meeting; (4) When defendants returned to the co-defendant's apartment they had numerous assault weapons and one of the victim's cars; (5) Defendant told a friend that he had killed one victim because his co-defendant had been unable to do so; (6) Defendants burned and abandoned the victim's car in a remote location, then spent the night in a motel away from their usual abode; (7) When confronted by police the next day, both defendants fled; and (8) Following defendant's arrest, he admitted to being at the scene. 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 convict defendant of premeditated first degree murder under T.C.A. § 39-13-202(a)(1) and T.C.A. § 39-11-106(a)(18) where the evidence showed that defendant had been physically and mentally abusive toward the victim during their relationship; defendant beat the victim with a pistol; defendant threatened to kill the victim, and these actions were filmed by a surveillance camera; a passenger in the car with the victim when she was shot five times identified defendant as the shooter; another witness said the shooter resembled defendant; and several witnesses saw a car resembling defendant's car speeding from the scene. State v. Ivy, 188 S.W.3d 132, 2006 Tenn. LEXIS 137 (Tenn. 2006), cert. denied, Ivy v. Tennessee, 549 U.S. 914, 127 S. Ct. 258, 166 L. Ed. 2d 200, 2006 U.S. LEXIS 6153 (2006).

Evidence was sufficient to sustain defendant's attempted extortion convictions because defendant admitted that he was attempting to obtain a more satisfactory divorce settlement, defendant sent a list of demands connected to the divorce to the attorney who was handling the divorce for defendant's ex-wife, and the list of demands was addressed to the attorney's husband, who was a judge seeking re-election; the list included a draft of a complaint against the attorney, and defendant stated that he would campaign against the husband/judge in the upcoming election if the divorce was not settled to his satisfaction. Parris v. State, 236 S.W.3d 173, 2007 Tenn. Crim. App. LEXIS 241 (Tenn. Crim. App. Mar. 15, 2007).

Evidence was sufficient to sustain a first degree murder conviction because, prior to the murder, the victim's wife saw defendant “peeping” over at her house, on the day of the murder a witness encountered defendant at 7:40 a.m. walking near the victim's home, and the murder occurred between 8:30 a.m. and 9:20 a.m.; after 10:00 a.m., a witness picked up defendant at a location near a trail leading from the victim's home, and the ammunition found in defendant's home was consistent with the unusual combination of power piston wads and “double aught buckshot” found at the crime scene. State v. Stephens, 264 S.W.3d 719, 2007 Tenn. Crim. App. LEXIS 748 (Tenn. Crim. App. Sept. 21, 2007), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 300 (Tenn. Apr. 14, 2008), overruled in part, State v. Beaty, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 842 (Tenn. Crim. App. Nov. 8, 2016).

Evidence was sufficient to prove that defendant knowingly killed a victim, as expert testimony detailing three separate skull fractures and eleven fractures to eight different ribs established that defendant violently beat the victim, and defendant admitted that defendant threw the victim to the ground in what defendant described as a “body-slam.” State v. Pruitt, 415 S.W.3d 180, 2013 Tenn. LEXIS 778 (Tenn. Oct. 8, 2013), cert. denied, Pruitt v. Tennessee, 189 L. Ed. 2d 839, 134 S. Ct. 2874, — U.S. —, 2014 U.S. LEXIS 4624 (U.S. 2014).

Evidence was sufficient to establish the element of premeditation in defendant's convictions for first degree murder and attempted first degree murder because: (1) defendant shot the adult victims multiple times and then repeatedly stabbed and beat the young children, moving from room to room to do so; and (2) defendant altered the scene to make it appear as if the murders were drug or gang-related, moved bodies, disposed of or hid kitchen knives and handles, and collected the cartridge casings. State v. Dotson, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 584 (Tenn. Crim. App. June 25, 2013), aff'd, 450 S.W.3d 1, 2014 Tenn. LEXIS 694 (Tenn. Sept. 30, 2014).

Evidence was sufficient to convict defendant of aggravated assault because he admitted to hitting the victim in the face, breaking her nose; he hit the victim on the head with the butt of a gun; he pushed the victim into the bathroom with tremendous force, causing her to collide with the vanity; the victim testified concerning her loss of consciousness, pain, scars, and permanent physical conditions; and medical personnel discussed the severity of the victim's injuries. State v. Feaster, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 485 (Tenn. Crim. App. May 23, 2014), aff'd, 466 S.W.3d 80, 2015 Tenn. LEXIS 514 (Tenn. June 25, 2015).

Evidence was sufficient to support defendant's convictions of vandalism because the proof established that defendant had, over at least 16 months, dumped massive amounts of construction and demolition debris on the victims'  properties without the consent of any of the victims. The State presented sufficient proof of the value of the damaged properties because a geologist testified about the cost to remove and dispose of the debris defendant dumped on the victims'  property and the cost to fill the pits on the properties, and an operations manager for an industrial and environmental contractor testified that one victim's property no longer held any value due to the amount of damage caused by the dumping. State v. Bolton, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 1196 (Tenn. Crim. App. Jan. 31, 2014).

Evidence was sufficient to convict defendant of first degree murder because the jury could infer that defendant traveled about one-fourth of one mile on foot from a church to the victim's house, where he placed a barrel under a window, removed the screen, entered the house through the open window, shot the victim in the head with a .22 caliber weapon, left through the front door, went to his mother's house, and waited until the body had been discovered the next day before initiating any contact with the authorities; and because defendant's actions were inconsistent with a conclusion he was incapable, due to intoxication, of premeditating the victim's killing. State v. Rayfield, 507 S.W.3d 682, 2015 Tenn. Crim. App. LEXIS 780 (Tenn. Crim. App. Sept. 28, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 146 (Tenn. Feb. 18, 2016).

Defendant was properly convicted of theft of property valued at more than $500 but less than $1000 because the evidence was sufficient to establish the value of the property defendant stole from a department store because loss prevention officers at the store testified as to observing defendant shoplift items from the store, a computer-generated report of stolen items was created by scanning the price tags of the items in defendant's possession, and defendant signed a statement of admission which listed the same items and the total price. State v. Shotwell, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 44 (Tenn. Crim. App. Jan. 21, 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 was sufficient to convict defendant of aggravated assault because the victim testified that she remained in the hospital for two days following the attack, that she sustained numerous cuts and stab wounds, that she was heavily medicated for weeks following the assault, and that she was still unable to bend her thumbs due to the severity of the injury to her hands. State v. Freeman, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 179 (Tenn. Crim. App. Mar. 10, 2016).

Evidence was sufficient to support defendant's conviction for attempted aggravated rape because a jury could have found beyond a reasonable doubt that defendant attempted to penetrate the victim's vagina with his penis without her consent and caused bodily injury to the victim; defendant demanded sexual intercourse from the victim, and when she refused defendant grabbed her throat, punched her in the head, climbed on top of her, and penetrated the victim's vagina with his penis. State v. Patterson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 250 (Tenn. Crim. App. Apr. 1, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 562 (Tenn. Aug. 18, 2016).

Evidence was sufficient to support defendant's conviction for aggravated assault because defendant struck the victim with a wooden beam multiple times, and the victim sustained bodily injury; the victim testified in detail about his injuries, and his testimony was supported by the photographs received as an exhibit. State v. Tiger, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 253 (Tenn. Crim. App. Apr. 4, 2016).

Evidence was sufficient to convict defendant of theft of property valued at $1000 or more but less than $10,000 as defendant intended to deprive the victims of their property because the first victim observed defendant walking alone in the street wearing his son's baseball cap, which was distinctive due to its custom lettering; when an officer approached defendant, the first victim looked inside defendant's bags and identified his items; defendant had a store receipt for perishable goods; and the last four digits of the debit card used in the store transaction matched the last four digits of the second victim's missing debit card. State v. Leonard, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 275 (Tenn. Crim. App. Apr. 12, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 619 (Tenn. Aug. 19, 2016).

Evidence was sufficient to convict defendant of aggravated assault because defendant involved himself in an altercation between the victim and defendant's friend; during the altercation, defendant left the friend's porch, approached the victim, and struck him in the head with a brick; once the victim was on the ground, defendant struck him an additional three or four times; as a result of the incident, the victim suffered multiple facial fractures, requiring three surgical procedures; and the trial court charged the jury on the issue of self-defense, and the jury chose to reject that defense, as was its prerogative. State v. Benfield, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 329 (Tenn. Crim. App. May 3, 2016).

Evidence was sufficient to support defendant's conviction of reckless endangerment against his two-month-old daughter where it showed that he shot into the driver's car while his daughter was strapped in her infant carrier in the backseat, defendant knew that the victim was in the vehicle because he had placed her there, he recklessly shot through the window of the car on the passenger side, and he walked around to the driver's side and fired multiple shots into the car. State v. Bailey, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 468 (Tenn. Crim. App. June 29, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 770 (Tenn. Oct. 20, 2016).

Evidence was sufficient to convict defendant of reckless endangerment with a deadly weapon because whether defendant intended to harm the investigator was immaterial as defendant used his vehicle in a manner capable of inflicting serious bodily injury to the investigator because defendant swerved into the investigator's lane at the moment of their passing; the investigator's testimony evinced that defendant looked directly ahead as he shifted half of his vehicle into the investigator's lane; had it not been for the investigator's evasive action, it could be reasonably concluded that the vehicles would have collided head-on; and defendant's act undoubtedly placed the investigator in imminent danger of serious bodily injury. State v. Boaz, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 581 (Tenn. Crim. App. Aug. 9, 2016).

Evidence was sufficient to support defendant's convictions of rape, aggravated assault, aggravated burglary, sexual battery, and assault where it showed that he broke into his estranged wife's house, choked her, repeatedly threatened to kill her, coerced her into having oral sex and sexual intercourse with him multiple times, the wife had bruises and marks on her throat, a DNA swab from the victim was consistent with defendant's DNA profile, and defendant had a bite mark on his forearm, marks on his cheeks, and scrapes on his head and elbow. State v. Blanton, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 623 (Tenn. Crim. App. Aug. 22, 2016).

Evidence was sufficient to support defendant's conviction of especially aggravated robbery where his girlfriend testified that on the night of the crimes, defendant went into the victims'  motel room with a gun and she heard two pops, the victims died from gunshot wounds to the head, even though one victim had a considerable amount of money earlier that evening when his body was found he had none, the girlfriend saw defendant with a cell phone after the crimes which he later disposed of, and the victim's cell phone was never found. State v. Wade, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 734 (Tenn. Crim. App. Sept. 28, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 47 (Tenn. Jan. 19, 2017).

Evidence was sufficient to support defendant's convictions of assault and domestic assault where it showed that the victim had a slight abrasion on her nose and slight discoloration on her neck, the jury heard the victim's testimony and saw photographs of her injuries, the jury could have found that the victim reasonably feared bodily injury when defendant charged her and forced her to the ground, and the victim and defendant had a child together. State v. Freitas, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 762 (Tenn. Crim. App. Oct. 7, 2016).

Evidence strongly supported defendant's convictions for the lesser included offenses of reckless endangerment and attempted especially aggravated robbery because the proof adduced at trial established that defendant accosted the victim, pointed a handgun at him, shot him once in the lower left leg, and stole his cellular telephone and cash; both the victim and a witness positively identified defendant in a photographic lineup one month after the incident. State v. Thaxton, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 818 (Tenn. Crim. App. Nov. 2, 2016).

Evidence was sufficient to support defendant's conviction of resisting official detention because the new charge of felony murder was considered a new arrest, he was taken into custody at the jail and was subjected to new booking procedures, and by refusing to provide a fingerprint he resisted the arrest for the new charges. State v. Brown, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 839 (Tenn. Crim. App. Nov. 7, 2016).

Evidence at defendant's trial was sufficient because, viewing all reasonable inferences in favor of the State, the evidence showed defendant murdered a victim during an attempted especially aggravated robbery. State v. Greer, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 406 (Tenn. Crim. App. May 17, 2017).

There was sufficient evidence to convict defendant of aggravated assault because the State's evidence established that he assaulted a correctional officer by striking the officer over thirty time; the proof powerfully established that defendant's attack on the officer resulted in serious bodily injury and that defendant assaulted the officer with intent and knowledge that his actions would result in serious bodily injury; State v. Armstrong, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 587 (Tenn. Crim. App. July 5, 2017).

Evidence supported defendant's conviction for reckless aggravated assault because defendant was aware of but consciously disregarded the substantial and unjustifiable risk that the victim would be seriously injured; defendant, while being repositioned in his hospital bed, looked the victim directly in the eye, lifted both legs, and kicked her beneath her chin, and a nurse and officer testified that defendant stated he intended to kick the male nurse rather than the victim. State v. Day, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 656 (Tenn. Crim. App. July 27, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 873 (Tenn. Dec. 6, 2017).

Evidence was sufficient to convict defendant of aggravated assault and child abuse because defendant and the child's mother were the sole caretakers of the one-month-old victim; defendant solely cared for the victim while the mother worked; both defendant and the mother admitted to becoming frustrated with the victim when he became fussy; at two-months-old, x-rays revealed numerous fractures throughout the victim's body; a doctor testified about the 23 fractures in various stages of healing to the victim's rib cage, legs, and arms and opined that the injuries were sustained through abuse; and defendant admitted to the police that he handled the victim roughly when frustrated and even heard a “pop” sound during one such incident. State v. Crawford, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 791 (Tenn. Crim. App. Aug. 31, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 870 (Tenn. Dec. 6, 2017).

Evidence was sufficient to convict defendant of aggravated child abuse of the three-month-old victim because, other than some slight congestion, the victim was healthy when her mother dropped her off with defendant; a video recorded on defendant's phone at 12:45 that afternoon showed the victim appearing unharmed and not displaying any symptoms of a severe brain injury; the victim's injuries were discovered around 2:03 p.m. when defendant's neighbor called 911; a child abuse pediatrician classified the injuries as non-accidental; and it was reasonable for the jury to conclude that defendant knowingly inflicted the injuries as she was the only person capable of inflicting such injuries on the victim at the time they were sustained. State v. Humphrey, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 854 (Tenn. Crim. App. Sept. 19, 2017).

Evidence was sufficient to support defendant's convictions for three counts of aggravated child abuse because defendant knowingly engaged in the conduct that resulted in the victim's bone fractures; the two-month-old victim had nine bone fractures, a doctor concluded that the fractures were the result of blunt force trauma to the chest or any type of squeezing mechanism, and defendant admitted to becoming frustrated with the victim and squeezing him. State v. McDuffie, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 865 (Tenn. Crim. App. Sept. 26, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 807 (Tenn. Nov. 16, 2017).

Evidence was sufficient to support defendant's conviction of carrying a firearm with the intent to go armed because defendant placed a loaded handgun into a cooler and then placed the cooler on the front seat of his vehicle, and defendant acknowledged that he carried the weapon for the purpose of defending himself. State v. Hirsch, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 887 (Tenn. Crim. App. Sept. 28, 2017).

Evidence was sufficient to convict defendant of theft of property valued over $10,000 but less than $60,000 because defendant was driving the truck that had been reported stolen by the owner; when stopped near a repair shop, defendant told officers that he thought the truck belonged to another individual and that he was taking it for repairs; and the reasons given by defendant for driving the truck were contradicted by the other individual's testimony at trial that he did not operate a trucking company at the time and did not employ defendant as a driver or repairman. State v. Richards, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 956 (Tenn. Crim. App. Nov. 14, 2017).

Sufficient evidence supported defendant's conviction for theft of property valued at $1,000 or more than but less than $10,000 because defendant was defendant's paramour and asset protection managers for a retail store identified defendant in the store's video surveillance recording removing items from the store without playing for them in two incidents. The asset protection managers'  testimony sufficiently established the aggregate value of the items that were taken during the two incidents. State v. Keese, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 193 (Tenn. Crim. App. Mar. 15, 2018).

Evidence that the 90-year-old victim was very bruised, with lots of facial trauma, was very uncomfortable and in pain due to the repeated blows to her face, and faced the possibility for intracranial bleeding due to her being on a blood thinner was sufficient to support a finding that she suffered serious injury involving a substantial risk of death and to support first defendant's conviction for aggravated robbery. State v. Brooks, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 461 (Tenn. Crim. App. June 25, 2018).

Evidence was sufficient to support defendant's conviction for theft of property valued at $ 1,000 or more because witnesses'  testimony established the total value of all the fitness trackers taken during the five thefts; both witnesses testified that they were charged with keeping track of the fitness trackers and that they maintained logs of the items, and both testified to the manufacturer's suggested retail price of the fitness trackers at the time they were taken. State v. Jones, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 479 (Tenn. Crim. App. June 28, 2018).

Evidence was sufficient to support defendant's convictions of reckless homicide and aggravated child abuse because it showed that defendant was alone in the room with the five-year-old victim who suffered injuries that medical experts equated with having been injured in a car accident or while skydiving. State v. Cooke, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 550 (Tenn. Crim. App. July 23, 2018).

Evidence was sufficient to convict defendant of especially aggravated robbery as the victim suffered serious bodily injury based on both an obvious disfigurement and the substantial impairment of a function of a bodily member because the victim testified that he was unable to fully perform his work duties for a year after the shooting and even needed help turning a screwdriver; he had a scar on his neck from the shooting that would continue to expand as time progressed; and he suffered a spinal fracture to his C4 vertebra. State v. Nelson, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 718 (Tenn. Crim. App. Sept. 21, 2018).

Evidence was sufficient to convict defendant of two counts of attempted second degree murder because defendant knowingly fired at least four rounds into the tow truck containing the two victims; the evidence presented at trial established that defendant was not standing in front of the tow truck when he fired his weapon; the jury rightfully rejected defendant's argument that his actions were justified because he was in state of passion caused by the towing of his brother's truck; one victim was permanently paralyzed from the armpits down; and it was apparent from the record that the jury heard and rejected defendant's self-defense argument at trial. State v. Proffitt, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 901 (Tenn. Crim. App. Dec. 13, 2018).

Evidence was sufficient to support defendant's conviction for possession of a firearm with the intent to go armed during the commission of a dangerous felony because a trooper recovered a firearm and a baggy containing marijuana and pills from defendant's person during a search of his vehicle. State v. Barnett, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 142 (Tenn. Crim. App. Mar. 6, 2019).

Evidence was sufficient to support defendant's conviction of attempted first-degree murder because it showed that both before and after a drug transaction defendant and the victim argued, defendant shot the victim in the face, and he disposed of the gun by throwing it from a bridge. Defendant also failed to render aid to the victim and fled the scene. State v. Ward, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 202 (Tenn. Crim. App. Apr. 1, 2019), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 331 (Tenn. July 18, 2019).

Evidence was sufficient to support defendant's conviction of aggravated kidnapping because it showed that he choked the victim from behind, he did not attempt to retrieve any of her scattered belongings, he threatened to snap her neck unless she stopped screaming and got into the vehicle, the victim briefly lost consciousness and when she came to she was partially inside the vehicle, an eyewitness saw two men trying push a woman into a vehicle, the victim did not escape until defendant fled, and she sustained injuries to her head, and scratches, and bruises. State v. Green, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 376 (Tenn. Crim. App. June 28, 2019).

Evidence was sufficient to support defendant's first degree premeditated murder conviction because defendant requested a witness to drive defendant to the scene of a fight where the victim and a group of men were fighting, defendant spoke angrily to the victim and provoked the fighting, defendant admitted to chasing the victim into the woods, defendant admitted to shooting once at the victim who died from a gunshot wound, and defendant appeared to lack emotion after the shooting, disposed of the weapon, and fled the jurisdiction. State v. Frazier, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 385 (Tenn. Crim. App. July 1, 2019).

Evidence was sufficient for a rational juror to have determined that defendant entered a store and committed a theft because an asset protection associate of the store observed defendant select five pairs of scrubs, conceal them in his pants, and proceed to the exit. State v. Hefner, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 381 (Tenn. Crim. App. July 2, 2019).

Evidence was sufficient to support defendants'  convictions of first-degree murder because it showed that they fired multiple shots into a house after calling the home to see if a particular person was at the house, and the fact that they did not kill their intended victim was irrelevant. State v. Avant, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 415 (Tenn. Crim. App. July 12, 2019).

Evidence was sufficient to support defendants'  convictions of attempted first-degree murder resulting in serious bodily injury because they opened fire on a home with people inside and were seen by an eyewitness firing shots from the car, and while the proof did not indicate which defendant actually fired the shot that injured the victim both defendants were criminally responsible for the conduct of the other. The proof also supported the finding that the victim suffered the loss of a bodily organ. State v. Avant, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 415 (Tenn. Crim. App. July 12, 2019).

Evidence was sufficient to support defendant's convictions of two counts of second-degree murder, reckless homicide, and criminally negligent homicide because her friend's testimony established that defendant pulled the trigger on the gun that killed the three victims, the testimony was corroborated by the fact that defendant's fingerprint was on a receipt recovered from one victim's vehicle, a witness testified that defendant entered his home with blood on her clothes and a pistol that was not fully loaded, and the pistol was one of the types of pistol that could have fire the bullets recovered from the crime scene. State v. Isaac, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 733 (Tenn. Crim. App. Nov. 13, 2019).

Evidence was sufficient to support defendant's convictions of aggravated rape because the two victims each testified that defendant held them down on the bed and took turns vaginally penetrating them, physical evidence matching defendant's DNA profile and one of the victim's DNA profile was found at the scene, and each victim testified that they felt pain during the rape. State v. Johnson, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 312 (Tenn. Crim. App. Apr. 30, 2020).

Evidence was sufficient to support defendant's conviction of aggravated child abuse because the physician testified that all of the victim's injuries were recent and non-accidental and the overwhelming evidence showed that the victim was in the sole care of defendant when he received his injuries. State v. Groves, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 332 (Tenn. Crim. App. May 12, 2020).

Evidence was sufficient to support defendant's conviction of child neglect because defendant, knowing that victim was injured, failed to immediately contact the mother or seek medical assistance for the victim. State v. Groves, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 332 (Tenn. Crim. App. May 12, 2020).

Evidence was sufficient to convict defendant of reckless homicide because she consciously disregarded a substantial and justifiable risk that the baby would suffocate by placing her hand over the baby's mouth and nose after birth, and the risk was of such a nature and degree that its disregard constituted a gross deviation from the ordinary standard of care. State v. Brown, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 441 (Tenn. Crim. App. June 25, 2020).

16. —Insufficient.

Evidence was insufficient to sustain a criminally negligent homicide conviction because defendant's act of holding her child on her lap in the front passenger seat was not a gross deviation from the standard of care at the time of the accident; articles entered into evidence illustrated how new the risk of air bags was at the time of the accident, in 1998, and the fact that there was a need for a large-scale public information campaign aimed at educating parents about child car safety indicated how many people were not using child safety restraints at the time of the accident. State v. Jones, 151 S.W.3d 494, 2004 Tenn. LEXIS 992 (Tenn. 2004).

No reasonable fact finder could conclude that defendant's entry of the residence was without the victim's “effective consent,” and, therefore, the evidence is insufficient to establish defendant's guilt of aggravated burglary or burglary; no rational trier of fact could have concluded that defendant deceived the victim either by reinforcing a false impression of intent to enter the residence in order to purchase a drink, or by failing to correct a false impression that he was a legitimate customer. State v. Pope, 427 S.W.3d 363, 2013 Tenn. LEXIS 1086 (Tenn. Dec. 30, 2013).

Evidence was insufficient to sustain defendant's conviction for disorderly conduct because the proof did not establish beyond a reasonable doubt that defendant's refusal to exit the vehicle created a “hazardous” condition. State v. Webber, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 894 (Tenn. Crim. App. Nov. 6, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 266 (Tenn. Mar. 30, 2016).

Defendant's trial counsel provided deficient performance by failing to challenge the sufficiency of the evidence of defendant's especially aggravated robbery conviction on the basis that the act of violence or force, which resulted in serious bodily injury to the victim and elevated the charged offense to especially aggravated robbery, occurred after the taking was complete. Boatwright v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 178 (Tenn. Crim. App. Mar. 10, 2020).

17. Reckless.

Evidence supported defendant's vehicular homicide by reckless conduct and reckless aggravated assault convictions because defendant acted recklessly as a witness testified that defendant was driving in the wrong direction on an interstate highway when defendant's SUV hit the victims'  car head-on and crash reconstructionists testified that defendant's SUV was driving in the wrong direction and that the SUV's crash data recording system reflected that the SUV accelerated just before impact. State v. Pena, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 761 (Tenn. Crim. App. Oct. 8, 2018).

Evidence was sufficient to support defendant's conviction of reckless endangerment because it showed that he fired two shots from a handgun at the boyfriend, who was standing behind and near the ex-wife, which placed her in imminent danger of death or serious bodily injury. In so doing, defendant consciously disregarded a substantial and unjustifiable risk that the ex-wife would be injured or killed by a stray bullet. State v. Myers, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 285 (Tenn. Crim. App. Apr. 30, 2019).

Sufficient evidence supported defendant's reckless homicide conviction because the evidence showed defendant mishandled a firearm defendant knew was loaded, resulting in a victim's death. State v. Lane, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 600 (Tenn. Crim. App. Sept. 20, 2019).

Evidence was sufficient to convict defendant of misdemeanor reckless endangerment as he showed a complete disregard for the victim's well-being because she testified that she lost consciousness after being assaulted by defendant; he left her lying injured in the middle of the highway in the dark with impaired vision and no shoes or cell phone; there were no street lights for 2.4 miles; and she walked 3.8 miles barefooted to a restaurant to get help. State v. Porter, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 654 (Tenn. Crim. App. Oct. 6, 2020).

Evidence was sufficient to support a conviction for the lesser-included offense of reckless homicide because defendant was a perpetrator of the offense under a theory of criminal responsibility; and defendant acted recklessly with respect to circumstances surrounding the conduct or the result of the conduct as he was aware of but consciously disregarded a substantial and unjustifiable risk that the circumstances existed or the result would occur. State v. Lumpkin, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 809 (Tenn. Crim. App. Dec. 23, 2020).

18. Benefit.

Trial court erred in granting defendant, a corrections officer, judgments of acquittal on three counts of official misconduct because, while he had no relationship with the three inmates at issue, did not try to confer a benefit or do harm to them, and did not receive anything from them in exchange for entering unearned work credits, the benefit was not required to accrue to defendant, but could benefit “any other person in whose welfare” he had an interest, and whether he “was interested” in the welfare of a third party for whom a benefit was obtained was a question for a properly instructed jury. State v. Stoner, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 390 (Tenn. Crim. App. July 3, 2019).

39-11-107, 39-11-108. [Reserved.]

  1. When the same conduct may be defined under both a specific statute and a general statute, the person may be prosecuted under either statute, unless the specific statute precludes prosecution under the general statute.
  2. When the same conduct may be defined under two (2) or more specific statutes, the person may be prosecuted under either statute unless one (1) specific statute precludes prosecution under another.

Acts 1989, ch. 591, § 1.

39-11-110. Felonies and misdemeanors distinguished.

All violations of law that may be punished by one (1) year or more of confinement or by the infliction of the death penalty are denominated felonies, and all violations of law punishable by fine or confinement for less than one (1) year, or both, are denominated misdemeanors.

Acts 1989, ch. 591, § 1.

Cross-References. Classification of felony offenses occurring prior to November 1, 1989, § 40-35-118.

Classification of misdemeanors and felonies, § 40-35-110.

Criminal Sentencing Reform Act, title 40, ch. 35.

Penalties for misdemeanors and felonies, § 40-35-111.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 25.62, 27.194.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, §§ 4, 25; 16 Tenn. Juris., Intoxicating Liquors, § 3; 17 Tenn. Juris., Justices of Peace and General Sessions Courts, § 22.

Tennessee Law of Evidence (2nd ed., Cohen, Paine and Sheppeard), § 803(22).1.

NOTES TO DECISIONS

1. Construction.

Because the penalties for a violation of the D.U.I. statute provided for a maximum punishment of 11 months and 29 days under T.C.A. § 55-10-403(a)(1)(A) (see now § 55-10-402), defendant's charge for D.U.I. in his arrest warrant was classified as a “misdemeanor” under T.C.A. § 39-11-110 for purposes of determining the proper statute of limitations. State v. Tait, 114 S.W.3d 518, 2003 Tenn. LEXIS 826 (Tenn. 2003).

Definition of “felony” provided in T.C.A. § 39-11-110 controls the determination of whether an out-of-state conviction constitutes a “felony drug offense.” State v. Smith, 495 S.W.3d 271, 2016 Tenn. Crim. App. LEXIS 112 (Tenn. Crim. App. Feb. 12, 2016).

Applying the definition of “felony” in T.C.A. § 39-11-110 allows courts to determine whether a prior conviction qualifies as a “felony drug offense,” regardless of the classification system used by the other jurisdiction. State v. Smith, 495 S.W.3d 271, 2016 Tenn. Crim. App. LEXIS 112 (Tenn. Crim. App. Feb. 12, 2016).

2. Misdemeanors.

Where attorney was charged with criminal contempt in an underlying divorce suit, because an unfavorable ruling could have resulted in punishment by the assessment of a fine or imprisonment for less than a year, the charge was actually a misdemeanor charge. Robinson v. Fulliton, 140 S.W.3d 304, 2003 Tenn. App. LEXIS 789 (Tenn. Ct. App. 2003).

Denial of the attorney's request that the trial court expunge the public records relating to the charge of criminal contempt was improper, where T.C.A. § 40-32-101(a)(1) applied insofar as the contempt charges were criminal in nature; further, criminal contempt was a misdemeanor under T.C.A. § 39-11-110, and a charge of a “misdemeanor” in T.C.A. § 40-32-101(a)(1) included the contempt proceedings in the case. Robinson v. Fulliton, 140 S.W.3d 304, 2003 Tenn. App. LEXIS 789 (Tenn. Ct. App. 2003).

39-11-111. Prohibited act when no penalty prescribed is misdemeanor.

When the performance or nonperformance of any act is made criminal by statute, and no penalty, punishment or forfeiture for the violation of that statute is imposed, the doing of the act is a misdemeanor.

Acts 1989, ch. 591, § 1.

Cross-References. Felonies and misdemeanors distinguished, § 39-11-110.

Penalty for misdemeanor where punishment not prescribed, § 39-11-114.

Law Reviews.

Tennessee Civil Disabilities: A Systemic Approach (Neil P. Cohen), 41 Tenn. L. Rev. 253 (1974).

39-11-112. Repealed or amended laws — Application in prosecution for offense.

When a penal statute or penal legislative act of the state is repealed or amended by a subsequent legislative act, the offense, as defined by the statute or act being repealed or amended, committed while the statute or act was in full force and effect shall be prosecuted under the act or statute in effect at the time of the commission of the offense. Except as provided under § 40-35-117, in the event the subsequent act provides for a lesser penalty, any punishment imposed shall be in accordance with the subsequent act.

Acts 1989, ch. 591, § 1.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 16.65, 32.12.

NOTES TO DECISIONS

1. Applicability.

The criminal savings statute has never been interpreted to apply to convictions and sentences which were already received when a subsequent act or amendment provided for a lesser penalty. State ex rel. Stewart v. McWherter, 857 S.W.2d 875, 1992 Tenn. Crim. App. LEXIS 877 (Tenn. Crim. App. 1992).

T.C.A. § 39-11-112, not T.C.A. § 40-35-117, governs the issue whether changes in capital sentencing by the 1989 amendments, as contained in T.C.A. § 39-13-204, apply to persons who committed offenses prior to November 1, 1989; thus, since the amendments did not provide for a lesser penalty, but merely changed the procedures to be followed at the sentencing hearing, where the offense occurred prior to the amendments, a jury instruction under the pre-1989 was appropriate. State v. Smith, 893 S.W.2d 908, 1994 Tenn. LEXIS 278 (Tenn. 1994), rehearing denied, 893 S.W.2d 908, 1995 Tenn. LEXIS 48 (Tenn. 1995), cert. denied, Smith v. Tennessee, 516 U.S. 829, 116 S. Ct. 99, 133 L. Ed. 2d 53, 1995 U.S. LEXIS 5601 (1995).

Defendant failed to establish that his trial counsel was ineffective, pursuant to former T.C.A. § 40-30-210(f), in setting out the range of punishment for the offense charged, when the conspiracy to which defendant pled guilty, delivery of over 300 pounds of marijuana, continued beyond the effective date of the statute designating the offense as a Class A felony, T.C.A § 39-17-417(j)(13), and defendant could properly be convicted of a Class A felony without violating the ex post facto provisions of U.S. Const. art. I, § 10, cl. 1, Tenn. Const. art. I, § 11, and T.C.A. § 39-11-112. Agee v. State, 111 S.W.3d 571, 2003 Tenn. Crim. App. LEXIS 7 (Tenn. Crim. App. 2003), appeal denied, — S.W.3d —, 2003 Tenn. LEXIS 331 (Tenn. Apr. 28, 2003).

Court's erroneous application of the 1998 amendment to T.C.A. § 39-13-204 in defendant's 1992 felony murder case was not harmless where it led directly to the prosecution's introduction of detailed and graphic evidence of prior violent felonies committed by defendant. The law as it existed at the time of the offense prohibited such evidence, and moreover, the prosecution heavily relied upon the inadmissible evidence underlying defendant's prior felonies in arguing that the jury should impose the death penalty for defendant's offense. State v. Odom, 137 S.W.3d 572, 2004 Tenn. LEXIS 452 (Tenn. 2004).

The amendment of T.C.A. § 39-11-501(c) in 1995, which operated to prohibit expert testimony on the ultimate issue of sanity, did not apply to defendant's offenses because they were committed before the amendment's effective date of July 1, 1995. State v. Thompson, 151 S.W.3d 434, 2004 Tenn. LEXIS 995 (Tenn. 2004).

Trial court incorrectly sentenced defendant for possession of marijuana as a Class E felony instead of a Class A misdemeanor; although defendant was charged and tried under prior law, T.C.A. § 39-17-418(e) had been amended by the time of his sentencing hearing and resulted in a lesser penalty, for purposes of T.C.A. § 39-11-112, and therefore, the imposition of a Class E sentence had to be reversed. State v. Hester, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 978 (Tenn. Crim. App. Nov. 21, 2017).

Trial court exceeded its authority by the application of the amended version of a sentencing statute, which provided for the grading of theft offenses, before the effective date in calculating defendant's sentence. Because the conviction offense was committed before the effective date of the amendment, and the sentencing occurred before the effective date of the statute, not even the date of the sentencing supplanted the date of the offenses as the controlling date in the case. State v. Keese, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 193 (Tenn. Crim. App. Mar. 15, 2018).

Trial court erred by applying the amended version of a sentencing statute, which provided the grading of theft offenses, to modify the class of defendant's conviction offense following the revocation of defendant's probation. Accordingly, the sentence imposed by the trial court was vacated and the case was remanded for further proceedings. State v. Tolle, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 203 (Tenn. Crim. App. Mar. 19, 2018).

Trial court appropriately sentenced defendant for a Class E felony after applying the criminal saving's statute to the vandalism conviction because the punishment applicable to defendant's vandalism conviction moved from a Class D felony to a Class E felony under the amended theft statute, which provided defendant with a “lesser penalty” for his vandalism conviction; the victim stated defendant inflicted $ 2,000 in damages on her van. State v. Swinford, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 292 (Tenn. Crim. App. Apr. 17, 2018).

Grading defendant's theft conviction as a Class E felony and imposing a Class E felony, Range II offender sentence of two years constituted plain error because prior to his sentencing hearing, the statute was amended to provide that the theft of property valued at $ 1,000 or less was a Class A misdemeanor. The sentence was vacated and modified. State v. Odom, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 160 (Tenn. Crim. App. Mar. 12, 2019).

Defendant's conviction for theft was to be modified from a Class D felony to a Class E felony because the Tennessee Public Safety Act of 2016, 2016 Tenn. Pub. Acts ch. 906, modified the grading of theft offenses to provide for a lesser penalty. While at the time of defendant's crime and indictment defendant's actions amounted to a charge and conviction of a Class D felony for theft, by the time of defendant's sentencing hearing, the Act had taken effect, and therefore, defendant's actions constituted a Class E felony for theft. State v. Cole-Pugh, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 176 (Tenn. Crim. App. Mar. 18, 2019).

Savings statute was applicable to the revisions in T.C.A. § 39-41-105 providing for penalties for violation of the theft statute and thus, defendant's offense was reduced to a Class E felony rather than a Class D felony. State v. Goldberg, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 180 (Tenn. Crim. App. Mar. 20, 2019).

T.C.A. § 39-11-112, the criminal savings statute, applies to the amendments of the theft grading statute. State v. Ruben, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 116 (Tenn. Crim. App. Feb. 19, 2020).

State's claim that the trial court erred in applying the Criminal Savings Statute to defendant's conviction for theft over $500 lacked merit because the amended version of the theft grading statute provided for a lesser penalty for defendant's theft conviction than the prior version of the statute and thus, the condition provided in the Criminal Savings Statute was satisfied. State v. Crosland, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 134 (Tenn. Crim. App. Feb. 24, 2020).

Inasmuch as defendant's sentencing hearing was held after the enactment of the amended theft grading statute, the trial court should have classified defendant's theft convictions in counts 3 and 4 as Class A misdemeanors. The trial court's failure to apply the amended theft grading statute at sentencing was plain error, requiring that defendant's six-year, Class E felony sentences be vacated. State v. Moats, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 705 (Tenn. Crim. App. Nov. 2, 2020).

2. Construction with Other Statutes.

The enabling provision of the 1993 act amending T.C.A. § 39-13-202(b), which expressly states that the amendment applies to offenses committed after July 1, 1993, controls over the more general provisions of this statute and the option of sentencing a defendant to life in prison without parole was thus not available to the jury where the crime was committed before July 1, 1993. State v. Cauthern, 967 S.W.2d 726, 1998 Tenn. LEXIS 161 (Tenn. 1998), cert. denied, Cauthern v. Tennessee, 525 U.S. 967, 119 S. Ct. 414, 142 L. Ed. 2d 336, 1998 U.S. LEXIS 6941 (1998).

Trial court properly denied the State's Tenn. R. Crim. P. 36.1 motion to correct defendant's sentence for two merged convictions of theft of property valued at $1,000 or more but less than $10,000 where the grading of theft statute had been amended after defendant's conviction, the amended statute, T.C.A. § 39-14-105(a) (2018), was effective at the time of the sentencing hearing, under judicial precedent, the amended version of the grading of theft statute applied even where the offense occurred before the amendment's effective date, as long as the amended version was effective at the time of sentencing, and the record reflected that the trial court imposed Range III sentences for a Class E felony. As a result, the corrected judgments did not reflect illegal sentences, and the trial court did not err by denying the State's Rule 36.1 motion. State v. Jones, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 804 (Tenn. Crim. App. Dec. 27, 2019).

3. Purpose.

T.C.A. § 39-11-112 is the general saving statute by which prosecutions are preserved after the statute proscribing the offense has been amended or repealed. State v. Davis, 825 S.W.2d 109, 1991 Tenn. Crim. App. LEXIS 728 (Tenn. Crim. App. 1991), appeal denied, — S.W.2d —, 1992 Tenn. LEXIS 125 (Tenn. Jan. 27, 1992).

4 Proper Sentence.

By agreeing to entry of a judgment of conviction sentencing defendant to a six-year sentence for a Class E felony, defendant rendered his argument that the trial court, defense counsel, and prosecutor were confused about the sentence moot; defendant faced a twelve-year sentence and should not have received the lesser six-year sentence under the criminal savings statute. State v. Birdwell, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 711 (Tenn. Crim. App. Nov. 7, 2019).

39-11-113. Penalty for felony where punishment not prescribed.

Every person who is convicted of a felony, the punishment for which is not otherwise prescribed by a statute of this state, shall be sentenced as for a Class E felony.

Acts 1989, ch. 591, § 1.

Cross-References. Classification of felony offenses occurring prior to November 1, 1989, § 40-35-118.

Felonies and misdemeanors distinguished, § 39-11-110.

Jury may provide for punishment in county jail or workhouse for less than twelve months, § 40-20-103.

Penalty for Class E felony, § 40-35-111.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 27.194, 32.3.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, § 44.

Law Reviews.

Evidence — Admissibility of Prior Convictions to Impeach a Witness (Doris C. Allen), 44 Tenn. L. Rev. (2) 401 (1977).

39-11-114. Penalty for misdemeanor where punishment not prescribed.

Every person who is convicted of a misdemeanor, the punishment for which is not otherwise prescribed by a statute of this state, shall be sentenced as for a Class A misdemeanor.

Acts 1989, ch. 591, § 1.

Cross-References. Felonies and misdemeanors distinguished, § 39-11-110.

Penalty for Class A misdemeanor, § 40-35-111.

Prohibited act when no penalty prescribed is misdemeanor, § 39-11-111.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 27.194, 32.3.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, § 44.

Law Reviews.

Jail Fees and Court Costs for the Indigent Criminal Defendant: An Examination of the Tennessee Procedure, 35 Tenn. L. Rev. 74 (1968).

39-11-115. Determination of value.

Whenever a determination of value is necessary to assess the class of an offense in this code or the level of punishment, the determination of value shall be made by the trier of fact beyond a reasonable doubt.

Acts 1989, ch. 591, § 1.

Cross-References. Value, definition, § 39-11-106.

39-11-116. [Repealed.]

Compiler's Notes. Former § 39-11-116 (Acts 1989, ch. 591, § 1), concerning disposition of forfeited property, was repealed by Acts 1998, ch. 979, § 1, effective June 27, 1998. For new law concerning forfeited property, see part 7 of this chapter.

39-11-117. Classification of first degree murder.

    1. For the purposes of classification of other offenses, first degree murder is one (1) class above Class A.
    2. Attempted first degree murder and conspiracy to commit first degree murder are Class A felonies.
    3. Solicitation to commit first degree murder is a Class B felony.
  1. For the sole and exclusive purpose of determining the classification of prior offenses under sentencing guidelines, first degree murder is considered a Class A offense.

Acts 1989, ch. 591, § 1.

Sentencing Commission Comments.

Because first degree murder is punished by either life imprisonment or death, first degree murder is not punished according to the sentencing structure provided in § 40-35-105 et seq. However, first degree murder is classified for two purposes only: (1) first degree murder is considered one class above a Class A felony for the purpose of classifying the preparatory offenses that are punished pursuant to § 39-12-107 and (2) first degree murder is classified as a Class A felony for the sole and exclusive purpose of calculating prior convictions under the sentencing structure where the defendant is convicted of a new offense.

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. Criminal Sentencing Reform Act, title 40, ch. 35.

Immediate revocation of bail for certain offenses, § 40-11-113.

Penalties for Class A and B felonies, § 40-35-111.

NOTES TO DECISIONS

1. Sentence Upheld.

Trial court did not abuse its discretion when sentencing defendant to the maximum sentences of incarceration available for each of defendant's attempted first degree murder convictions because the trial court relied heavily on defendant's criminal history and noted defendant could have been sentenced as a Range II offender. In addition, the trial court found the facts established at trial indicated defendant was the leader in the commission of the offenses and that defendant acted without hesitation when the risk to human life was high. State v. Sims, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 814 (Tenn. Crim. App. Sept. 5, 2017).

39-11-118. Restitution to victims of crime.

  1. In addition to the punishment authorized by the specific statute prohibiting the conduct, it is a part of the punishment for any offense committed in this state that the person committing the offense may be sentenced by the court to pay restitution to the victim or victims of the offense in accordance with §§ 40-35-104(c)(2) and 40-35-304.
  2. In addition to the punishment authorized by the specific statute prohibiting the conduct, it is a part of the punishment for the offenses named in this subsection (b) that the defendant be sentenced by the court to pay restitution to the victim or victims of §§ 39-13-309, 39-13-514, 39-17-1005(a), 39-13-528(a), and 39-13-529(a) in accordance with §§ 40-35-104(c)(2) and 40-35-304.

Acts 1996, ch. 699, § 1; 2013, ch. 242, § 1.

Compiler's Notes. Acts 1996, ch. 699, § 4 provided that nothing in that act, which added this section and amended §§ 40-35-104 and 40-35-304, shall be construed to prohibit or delay a victim from applying for and receiving any compensation to which such victim is entitled under the Criminal Injuries Compensation Act, compiled in title 29, chapter 13. If the court orders the defendant to pay restitution pursuant to Acts 1996, ch. 699, the state shall have a subrogation interest in such restitution payments for the full amount paid the victim under the Criminal Injuries Compensation Act.

Acts 1996, ch. 699, § 5 provided that that act shall apply to any defendant sentenced on or after July 1, 1996.

Acts 2013, ch. 242, § 2 provided that the act, which added subsection (b), shall apply to all applicable offenses committed on or after July 1, 2013.

Part 2
Burden of Proof

39-11-201. Burden of proof.

  1. No person may be convicted of an offense unless each of the following is proven beyond a reasonable doubt:
    1. The conduct, circumstances surrounding the conduct, or a result of the conduct described in the definition of the offense;
    2. The culpable mental state required;
    3. The negation of any defense to an offense defined in this title if admissible evidence is introduced supporting the defense; and
    4. The offense was committed prior to the return of the formal charge.
  2. In the absence of the proof required by subsection (a), the innocence of the person is presumed.
  3. A person charged with an offense has no burden to prove innocence.
  4. Evidence produced at trial, whether presented on direct or cross-examination of state or defense witnesses, may be utilized by either party.
  5. No person may be convicted of an offense unless venue is proven by a preponderance of the evidence.
  6. If the issue is raised in defense, no person shall be convicted of an offense unless jurisdiction and the commission of the offense within the time period specified in title 40, chapter 2 are proven by a preponderance of the evidence.

Acts 1989, ch. 591, § 1; 1990, ch. 1030, § 3.

Sentencing Commission Comments.

This section codifies the prior Tennessee principles regarding burdens of proof. The presumption of innocence and reasonable doubt doctrines remain unaltered and a defendant is entitled to a jury charge on those issues. Hardin v. State, 210 Tenn. 116, 355 S.W.2d 105 (1962); Gentry v. State, 184 Tenn. 299, 198 S.W.2d 643 (1947); Owen v. State, 89 Tenn. 698, 16 S.W. 114 (1891).

Note that subsection (d) is a new provision of the law. The burden regarding issues of jurisdiction and time limitations have not been altered from prior law. Under subsection (e), proof of venue by a preponderance of the evidence is required in every case. The burden of proof for venue was previously “beyond a reasonable doubt”. Subsection (f) states that jurisdiction and time limitations need be proven only in cases where those issues are raised by the defendant. Once these issues are raised, the state must prove proper jurisdiction and timely prosecution by a preponderance of the evidence.

Cross-References. Civil procedure, process, title 20, ch. 2.

Culpability, title 39, ch. 11, part 3.

Definitions for title, § 39-11-106.

Evidence and witnesses, title 24.

General defenses, title 39, ch. 11, part 5.

Jurisdiction, long-arm statutes, title 20, ch. 2, part 2.

Notice of charge, § 40-10-101.

Venue, title 20, ch. 4.

NOTES TO DECISIONS

1. Defenses.

The state has the burden of proving beyond a reasonable doubt that defendant did not act in self-defense. State v. Belser, 945 S.W.2d 776, 1996 Tenn. Crim. App. LEXIS 568 (Tenn. Crim. App. 1996).

Trial court erred in admitting into evidence the prior acquittals of two men defendant claimed were the individuals responsible for a murder because defendant had a right to suggest that the men were responsible for the murder; because the jurors in defendant's case could come to a different conclusion concerning the responsibility of the men, the evidence of the acquittals did not demonstrate that it was more or less probable that the men committed the crime and under T.C.A. § 39-11-201(a) was inadmissible to demonstrate their innocence. State v. Turner, 352 S.W.3d 425, 2011 Tenn. LEXIS 960 (Tenn. Oct. 12, 2011).

Although the trial court should not have included in the jury instructions the prefatory phrase that, “If evidence is introduced supporting self-defense,” because that was not a proper determination for the jury but for the court itself; however, the error was harmless because the prosecution in effect conceded to the jury that evidence was introduced supporting self-defense and that the jurors had to determine whether the State had negated the defense beyond a reasonable doubt. Accordingly, there was simply no possibility of jury confusion regarding the fact that evidence of self-defense had been introduced and that the jury was required to consider the issue. State v. Slimick, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 1016 (Tenn. Crim. App. Dec. 17, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 299 (Tenn. Apr. 6, 2016).

Evidence was sufficient to convict defendant of aggravated assault because defendant involved himself in an altercation between the victim and defendant's friend; during the altercation, defendant left the friend's porch, approached the victim, and struck him in the head with a brick; once the victim was on the ground, defendant struck him an additional three or four times; as a result of the incident, the victim suffered multiple facial fractures, requiring three surgical procedures; and the trial court charged the jury on the issue of self-defense, and the jury chose to reject that defense, as was its prerogative. State v. Benfield, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 329 (Tenn. Crim. App. May 3, 2016).

Sufficient evidence supported defendant's aggravated assault conviction because it showed defendant (1) intentionally or knowingly caused a victim to reasonably fear imminent bodily injury by pointing a gun at the victim, and (2) did not act in self-defense. State v. Howard, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 839 (Tenn. Crim. App. Sept. 13, 2017).

Defendant's contention that the State's proof failed to rebut his self-defense theory was rejected because the State offered evidence that defendant got out of the car, pulled the victim from the car while she was injecting drugs, initiated the assault that culminated in the shooting, and had the only weapon involved. A rational jury could conclude that if the victim had been shot with a gun she possessed, defendant would have had no reason to dispose of either his gun, which he claimed had not been fired, or the victim's gun, which would have supported his claims that she had pointed a gun at him and that they had struggled for control of it. State v. Ward, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 202 (Tenn. Crim. App. Apr. 1, 2019), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 331 (Tenn. July 18, 2019).

Defendant's claim that defendant fatally shot the victim in self-defense and in defense of defendant's adult child failed because the strongest legitimate view of the evidence was that defendant's child was not struck and injured by the victim, defendant had the wherewithal to record officers'  radio communications in response to the shooting, defendant could not explain the parties'  orientation at the time of the shooting, and defendant later calmly discussed the shooting and mocked the victim's surviving spouse after talking to the police. State v. Waggoner, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 595 (Tenn. Crim. App. Sept. 24, 2019).

Evidence was sufficient to support defendant's conviction for aggravated assault because the jury clearly chose to credit the victim's version of events, rejecting defendant's testimony supporting self-defense; the victim testified specifically about the manner in which defendant and co-defendant began to follow him, about his attempts to get help through 911, about the shooting, about his fleeing the scene, and about his abandoning his own weapon to seek. State v. Manning, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 615 (Tenn. Crim. App. Sept. 17, 2020).

2. Mitigating Circumstances.

There is no provision in the capital sentencing scheme requiring a jury instruction that the state has the burden to disprove mitigating circumstances beyond a reasonable doubt. State v. Hodges, 944 S.W.2d 346, 1997 Tenn. LEXIS 234 (Tenn. 1997), rehearing denied, — S.W.3d —, 1997 Tenn. LEXIS 265 (Tenn. 1997), cert. denied, State v. Hodges, 522 U.S. 999, 118 S. Ct. 567, 139 L. Ed. 2d 407, 1997 U.S. LEXIS 7140 (1997).

3. Time of Offense.

Under T.C.A. § 39-11-201, the legislature has mandated that before a person can be convicted of a criminal offense, the state must prove beyond a reasonable doubt that the person committed the offense prior to the time he was formally charged with the offense; while it seems obvious that no person would be indicted or otherwise formally charged with the commission of the offense of murder before the victim was actually killed, the legislature has chosen to require the state to prove that fact beyond a reasonable doubt. State v. Brown, 53 S.W.3d 264, 2000 Tenn. Crim. App. LEXIS 962 (Tenn. Crim. App. 2000), appeal denied, — S.W.3d —, 2001 Tenn. LEXIS 434 (Tenn. May 14, 2001), review denied, — S.W.3d —, 2002 Tenn. LEXIS 415 (Tenn. Sept. 23, 2002).

The rule requiring the state to prove that the offense occurred prior to the return of the indictment was a result of the rule that the exact time of the offense is not material and an indictment need only allege that the offense occurred prior to the indictment. State v. Brown, 53 S.W.3d 264, 2000 Tenn. Crim. App. LEXIS 962 (Tenn. Crim. App. 2000), appeal denied, — S.W.3d —, 2001 Tenn. LEXIS 434 (Tenn. May 14, 2001), review denied, — S.W.3d —, 2002 Tenn. LEXIS 415 (Tenn. Sept. 23, 2002).

The indictment is not to be considered evidence of a defendant's guilt, but the indictment itself can establish the date upon which it was returned; thus, the reading of the indictment to the jury, coupled with evidence of when the offense was committed, would establish that the offense was committed prior to the return of the indictment. State v. Brown, 53 S.W.3d 264, 2000 Tenn. Crim. App. LEXIS 962 (Tenn. Crim. App. 2000), appeal denied, — S.W.3d —, 2001 Tenn. LEXIS 434 (Tenn. May 14, 2001), review denied, — S.W.3d —, 2002 Tenn. LEXIS 415 (Tenn. Sept. 23, 2002).

Where the trial court instructed the jury regarding the indictment but there was no evidence that it gave the jury the indictment, and the state did not otherwise offer proof of the date of the indictment or proof that offense was committed before the return of the indictment, the defendant's convictions were reversed for lack of proof; although it was obvious that the murder was committed prior to the return of the indictment, the state did not prove this fact. State v. Brown, 53 S.W.3d 264, 2000 Tenn. Crim. App. LEXIS 962 (Tenn. Crim. App. 2000), appeal denied, — S.W.3d —, 2001 Tenn. LEXIS 434 (Tenn. May 14, 2001), review denied, — S.W.3d —, 2002 Tenn. LEXIS 415 (Tenn. Sept. 23, 2002).

4. Culpable Mental State.

Defendant's fear of his brother was not the type of mental disease or defect contemplated by a diminished capacity defense. State v. Hatcher, 310 S.W.3d 788, 2010 Tenn. LEXIS 419 (Tenn. May 4, 2010).

Failure to consult a mental health expert and to obtain an evaluation of petitioner was deficient performance, as the State was required to prove a premeditated, intentional killing, but defendant was not prejudiced because the doctor's testimony was not admissible and prompt consultation would not have affected the defense; he only said it was a possibility that due to a mental disease, petitioner lacked capacity, and evidence of certain diagnoses was not relevant and admissible without an opinion regarding the ultimate issue of petitioner's capacity to form the required mens rea, such that he was not entitled to post-conviction relief. Williamson v. State, 476 S.W.3d 405, 2015 Tenn. Crim. App. LEXIS 267 (Tenn. Crim. App. Apr. 14, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 595 (Tenn. July 21, 2015).

Trial court's instruction on diminished capacity required defendant to negate his mental state, an essential element of the offense, by clear and convincing evidence, erroneously shifting the burden of proof regarding an essential element of the offense to defendant. State v. Bonsky, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 314 (Tenn. Crim. App. Apr. 27, 2016).

Although defendant asserted that because of a mental disease or defect he was unable to form the requisite culpable mental states for the offense of attempted first degree premeditated murder, the State presented substantial proof showing defendant was capable of forming the culpable mental states required because defendant and victim had been arguing about their divorce the day of the attack; just before the attack, defendant, in a very calm, rational voice told the unarmed victim that when he started hitting her she was not going to get up and that he was going to kill her; and defendant's protracted 9-1-1 call showed his calmness immediately after the attack. State v. Halliburton, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 907 (Tenn. Crim. App. Dec. 6, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 219 (Tenn. Apr. 13, 2017).

5. Admissibility of Evidence.

State may utilize evidence of state of passion offered by the defense when proving the offense of voluntary manslaughter; although a defendant may choose to present evidence of state of passion produced by adequate provocation, which indicates a lesser degree of culpability, in order to obtain a conviction for voluntary manslaughter, the State bears the burden of proving the mental state for the charged offense and any lesser included offenses, and the instruction, which properly placed the burden of proof on the State to prove the elements of voluntary manslaughter, was not in error. State v. Moore, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 356 (Tenn. Crim. App. May 12, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 692 (Tenn. Sept. 22, 2016), cert. denied, Moore v. Tennessee, 197 L. Ed. 2d 711, 137 S. Ct. 1580, — U.S. —, 2017 U.S. LEXIS 2514 (U.S. Apr. 17, 2017).

6. Jury Instruction.

Trial court did not err in rejecting defendant's requests for special jury instructions on the issue of self-defense because the court used the applicable Tennessee Pattern Jury Instructions, the jury instruction regarding the State of Tennessee's burden to negate defendant's claim of self-defense was given to the jury before it began deliberating, and the prefatory phrase “if evidence has been introduced supporting self-defense” did not improperly shift the burden to defendant to present the defense. State v. Floyd, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 233 (Tenn. Crim. App. Mar. 29, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 452 (Tenn. July 18, 2018).

7. Venue.

Minor victim's testimony that the massages of the victim which defendant performed and videotaped occurred in certain apartments where the parties lived and in a hotel room where defendant later lived, along with testimony from the victim's mother, police officers, and defendant, which indicated that the parties lived in the county during the events that transpired, was sufficient for the jury to find that venue for both the aggravated sexual battery and especially aggravated sexual exploitation of a minor offenses was in the county. Wilson v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 806 (Tenn. Crim. App. Dec. 22, 2020).

39-11-202. Exception.

  1. An exception to an offense in this title is so labeled by the phrase: “It is an exception to the application of …,” or words of similar import.
    1. Unless the statute defining an offense states to the contrary, the state need not negate the existence of an exception in the charge alleging commission of the offense.
    2. An exception to be relied upon by a person must be proven by a preponderance of the evidence.

Acts 1989, ch. 591, § 1; 1990, ch. 1030, § 4.

Sentencing Commission Comments.

The following sections in this part describe procedural effects of the many exceptions (this section), defenses (§ 39-11-203), and affirmative defenses (§ 39-11-204), provided in Tennessee criminal law.

This section deals with exceptions to criminal liability. These exceptions are noted in the law defining the offenses.

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

39-11-203. Defense.

  1. A defense to prosecution for an offense in this title is so labeled by the phrase: “It is a defense to prosecution under … that …”
  2. The state is not required to negate the existence of a defense in the charge alleging commission of the offense.
  3. The issue of the existence of a defense is not submitted to the jury unless it is fairly raised by the proof.
  4. If the issue of the existence of a defense is submitted to the jury, the court shall instruct the jury that any reasonable doubt on the issue requires the defendant to be acquitted.
    1. A ground of defense, other than one (1) negating an element of the offense or an affirmative defense, that is not plainly labeled in accordance with this part has the procedural and evidentiary consequences of a defense.
    2. Defenses available under common law are hereby abolished.

Acts 1989, ch. 591, § 1.

Sentencing Commission Comments.

This section describes the procedural consequences of criminal defenses. The defendant has the burden of introducing admissible evidence that a defense is applicable. If the defense is at issue, the state must prove beyond a reasonable doubt that the defense does not apply.

Subsection (d) outlines the content of a jury charge on a defense and codifies prior case law. King v. State, 91 Tenn. 617, 20 S.W. 169 (1892).

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. Defenses excluded, § 39-11-407.

General defenses, title 39, ch. 11, part 5.

Law Reviews.

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

NOTES TO DECISIONS

1. Diminished Capacity.

Evidence of diminished capacity is relevant not to excuse or defeat a criminal charge but to lessen the offense when it serves to negate mens rea. State v. Phipps, 883 S.W.2d 138, 1994 Tenn. Crim. App. LEXIS 298 (Tenn. Crim. App. 1994).

“Diminished capacity” is not an enumerated defense under the 1989 revision of the criminal code, but negation of an element of a criminal offense is recognized as a defense in Tennessee. State v. Hall, 958 S.W.2d 679, 1997 Tenn. LEXIS 617 (Tenn. 1997), cert. denied, Hall v. Tennessee, 524 U.S. 941, 118 S. Ct. 2348, 141 L. Ed. 2d 718, 1998 U.S. LEXIS 4097 (1998).

Failure to consult a mental health expert and to obtain an evaluation of petitioner was deficient performance, as the State was required to prove a premeditated, intentional killing, but defendant was not prejudiced because the doctor's testimony was not admissible and prompt consultation would not have affected the defense; he only said it was a possibility that due to a mental disease, petitioner lacked capacity, and evidence of certain diagnoses was not relevant and admissible without an opinion regarding the ultimate issue of petitioner's capacity to form the required mens rea, such that he was not entitled to post-conviction relief. Williamson v. State, 476 S.W.3d 405, 2015 Tenn. Crim. App. LEXIS 267 (Tenn. Crim. App. Apr. 14, 2015), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 595 (Tenn. July 21, 2015).

2. Duress or Necessity.

Neither duress nor necessity are affirmative defenses; both are “defenses” and, if admissible evidence fairly raises either defense, the trial court must submit the defense to the jury and the prosecution must prove beyond a reasonable doubt that the defense does not apply. State v. Culp, 900 S.W.2d 707, 1994 Tenn. Crim. App. LEXIS 858 (Tenn. Crim. App. 1994).

Trial court's failure to instruct the jury on the defense of duress under T.C.A. § 39-11-504 did not constitute plain error under former Tenn. R. Crim. P. 52(b) (see now T.R.A.P. 36(b)), and therefore his conviction of unlawful possession of a handgun by a convicted felon in violation of T.C.A. § 39-17-1307(b)(1)(A) was reinstated, even though the evidence, including defendant's testimony, may have been sufficient to warrant such an instruction, because duress was never discussed as a theory of the defense and defendant expressly declined a jury instruction on self-defense, a defense closely related to duress. State v. Bledsoe, 226 S.W.3d 349, 2007 Tenn. LEXIS 368 (Tenn. Apr. 26, 2007).

Defense of duress failed because there was no proof that defendant's brother threatened defendant in order to achieve his assistance in the attack upon the victims. State v. Hatcher, 310 S.W.3d 788, 2010 Tenn. LEXIS 419 (Tenn. May 4, 2010).

Trial counsel's performance was not deficient by failing to request jury instructions on the defenses of duress and necessity because the defenses were not raised by the proof at trial. Counsel researched the possibility of arguing the defenses of necessity or duress at trial, but was unable to corroborate defendant's story, while abandoned this theory of the case when defendant informed counsel that defendant had never entered the building that was vandalized and burglarized and by testifying to living in a hotel at the time of the offense. Walton v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 363 (Tenn. Crim. App. May 10, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 601 (Tenn. Sept. 22, 2017).

Petitioner failed to prove that trial counsel's failure to request jury instructions on duress and necessity was below an objective standard of reasonableness under prevailing professional norms; the defense of duress was inapplicable to petitioner's charge of first degree murder because the urgency of harm to petitioner would not have outweighed the harm to the deceased victim, and the statutory defense of necessity arguably had no application in the case of homicide. Hendricks v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 651 (Tenn. Crim. App. July 26, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 810 (Tenn. Nov. 16, 2017).

3. Self-defense.

Vacation of petitioner's, an inmate's, convictions was improper because the courts below erred in concluding that counsel performed deficiently by exclusively pursuing a theory of self-defense because, if successful, the self-defense strategy trial counsel pursued would have resulted in a complete acquittal of the attempted first-degree murder charge, T.C.A. § 39-11-203(d), and likely would have resulted in an acquittal of the aggravated burglary charge by negating an essential element of the offense, T.C.A. §§ 39-14-402 and 39-14-403. Felts v. State, 354 S.W.3d 266, 2011 Tenn. LEXIS 1060 (Tenn. Nov. 10, 2011).

Petition for post-conviction relief was properly denied because appellate counsel was not ineffective for failing to raise the issue of trial counsel's alleged failure to request a self-defense instruction on appeal as the proof at trial did not fairly raise the issue of self-defense because the victim, an unarmed security guard, responded to an emergency call related to a gang fight in the mall; the victim was able to pin defendant against a booth; defendant's friend then told the victim to let defendant go; the victim released defendant; defendant then pulled out a handgun and fired a fatal shot into the victim's chest; and a witness testified that the victim was standing still with his hands at his side when defendant fired his weapon. Loverson v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 71 (Tenn. Crim. App. Jan. 30, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 347 (Tenn. May 22, 2017).

Sufficient evidence supported defendant's aggravated assault conviction because it showed defendant (1) intentionally or knowingly caused a victim to reasonably fear imminent bodily injury by pointing a gun at the victim, and (2) did not act in self-defense. State v. Howard, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 839 (Tenn. Crim. App. Sept. 13, 2017).

Defendant was not entitled to a self-defense instruction because the evidence showed defendant did not attempt to retreat before using deadly force. State v. Toles, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 315 (Tenn. Crim. App. May 17, 2019).

Trial court did not err by denying defendant's request for a jury instruction on self-defense because it was not fairly raised by the evidence, as the evidence showed that defendant already had a gun in his hand before the victim exited the market, defendant got out of his vehicle with a gun after blocking the victim's car, and the victim walked out of the market unaware of defendant's presence until defendant ran up and shot him. State v. Thompson, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 573 (Tenn. Crim. App. Aug. 20, 2020).

4. Burden of Proof.

There is no provision in the capital sentencing scheme requiring a jury instruction that the state has the burden to disprove mitigating circumstances beyond a reasonable doubt. State v. Hodges, 944 S.W.2d 346, 1997 Tenn. LEXIS 234 (Tenn. 1997), rehearing denied, — S.W.3d —, 1997 Tenn. LEXIS 265 (Tenn. 1997), cert. denied, State v. Hodges, 522 U.S. 999, 118 S. Ct. 567, 139 L. Ed. 2d 407, 1997 U.S. LEXIS 7140 (1997).

5. Year and a Day Rule.

The common law year and a day rule requiring that a murder victim's death must occur within a year and a day of the fatal wound was not abolished by the provisions of the Criminal Sentencing Reform Act of 1989, but has been abolished by the Tennessee Supreme Court. State v. Rogers, 992 S.W.2d 393, 1999 Tenn. LEXIS 276 (Tenn. 1999), rehearing denied, — S.W.2d —, 1999 Tenn. LEXIS 314 (Tenn. June 21, 1999), aff'd, Rogers v. Tennessee, 532 U.S. 451, 121 S. Ct. 1693, 149 L. Ed. 2d 697, 2001 U.S. LEXIS 3519 (2001).

Retroactive application of the abolition of the year and a day rule as it existed at common law in Tennessee, did not deny defendant due process of law; the court's abolition of the year and a day rule was not unexpected and indefensible as the year and a day rule is widely viewed as an outdated relic of the common law. Rogers v. Tennessee, 532 U.S. 451, 121 S. Ct. 1693, 149 L. Ed. 2d 697, 2001 U.S. LEXIS 3519 (2001).

6. Mistake of Fact.

Reasonable minds could accept ignorance or mistake of fact as a defense to premeditated first degree murder and counsel were deficient by failing to request a jury instruction on ignorance or mistake of fact where: (1) Petitioner testified that he believed he removed all of the bullets from the gun and that the gun fired as he was “fumbling” with it; and (2) Petitioner's theory at the trial was that he was mistaken in his belief that the gun was unloaded and that he did not intend to shoot the victim. Nesbit v. State, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 292 (Tenn. Crim. App. Mar. 28, 2013), aff'd, 452 S.W.3d 779, 2014 Tenn. LEXIS 917 (Tenn. Nov. 14, 2014).

7. Jury Instructions.

Without evidence either that the victim acted in a manner causing defendant to believe that the victim presented an imminent danger of death or serious bodily injury, there was no evidence that defendant's force was immediately necessary to protect against the victim; there was no basis to find that the evidence fairly raised an issue as to whether defendant acted in defense of either self or another, and the trial court's refusal to instruct the jury on self-defense and defense of person was not error. State v. Estrada, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 896 (Tenn. Crim. App. Nov. 30, 2016).

Trial court did not err by refusing to instruct the jury on self-defense because the only evidence defendant presented was a witness's testimony that she heard what she believed to be the victim rummaging through a knife drawer and leaving after defendant, but she did not see the act take place. State v. Rahman, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 180 (Tenn. Crim. App. Mar. 9, 2017).

Trial court erred by failing to instruct the jury on the defense of necessity during defendant's trial for being a felon in possession of a handgun because it was fairly raised by the evidence, as it showed that defendant became involved in a physical altercation with two men inside a convenience store, a gun from the jacket of one of the men, the two men grappled with defendant for the gun but defendant reached it first, a jury could have inferred that defendant reasonably believed that obtaining the gun was immediately necessary for him to avoid imminent harm, and defendant's girlfriend was shot with another gun very shortly thereafter. State v. Cole-pugh, — S.W.3d —, 2019 Tenn. LEXIS 498 (Tenn. Oct. 25, 2019).

Where the general defense of necessity is fairly raised by the evidence, the trial court is obligated to instruct the jury accordingly, regardless of whether the instruction is requested. A defendant need not testify that he reasonably feared imminent bodily harm; the trial court may draw this inference from the evidence as it is viewed in the light most favorable to the defendant, together with all reasonable inferences therefrom. In addition, a request for a jury instruction on a general defense is not subject to waiver for failure to submit the request in writing. State v. Cole-pugh, — S.W.3d —, 2019 Tenn. LEXIS 498 (Tenn. Oct. 25, 2019).

Trial court properly refused to instruct the jury on duress and defense of a third person with regard to the charge of the attempted first degree premeditated murder because defendant was not charged with that offense for shooting the victim in a club when the victim allegedly pulled a gun on defendants'  sibling as defendant allegedly shot the victim in the parking lot after pursuing the victim. By that time, defendant's brother was no longer in imminent danger of death or serious bodily injury by the victim. State v. Pettis, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 314 (Tenn. Crim. App. May 17, 2019).

Evidence was sufficient to support a flight instruction because, after the shooting of the victim, defendant fled the scene in a jeep driven by another person, defendant was no longer inside the jeep when police officers conducted a traffic stop, and defendant travelled to another city after the shooting and was arrested in that city. Although defendant argued that defendant fled to the other city because defendant feared for defendant's life, defendant's specific intent for fleeing was a jury question. State v. Frazier, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 385 (Tenn. Crim. App. July 1, 2019).

An instruction on self-defense was warranted because there was some evidence from which the jury could have determined that defendant's use of force was only for protection against police officers who were using more force than was necessary to place defendant under arrest. Defendant testified that defendant was sitting in a car at night when someone with a blinding light from a flashlight approached, began hitting the window, pulled defendant out, and began hitting defendant as defendant attempted to comply with the officer's demands. State v. Wilson, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 797 (Tenn. Crim. App. Dec. 20, 2019).

Trial court did not breach a clear and unequivocal rule of law by declining to give a jury instruction on the defense of duress because the danger of death could not reasonably outweigh the harm of causing a death; therefore, duress in a homicide case could not be fairly raised by the proof, regardless of whether defendant was being threatened at the time he shot the victim. State v. Kelso, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 316 (Tenn. Crim. App. May 4, 2020).

8. Construction.

Statute does not identify state of passion as a defense to first or second degree murder and does no more than generally describe defenses within the context of the State's burden of proof; the legislature plainly intended for state of passion produced by adequate provocation to be an element of the separate offense of voluntary manslaughter, not a defense to second degree murder. State v. Moore, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 356 (Tenn. Crim. App. May 12, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 692 (Tenn. Sept. 22, 2016), cert. denied, Moore v. Tennessee, 197 L. Ed. 2d 711, 137 S. Ct. 1580, — U.S. —, 2017 U.S. LEXIS 2514 (U.S. Apr. 17, 2017).

39-11-204. Affirmative defense.

  1. An affirmative defense in this title is so labeled by the phrase: “It is an affirmative defense to prosecution under …, which must be proven by a preponderance of the evidence, that …” or words of similar import.
  2. The state is not required to negate the existence of an affirmative defense in the charge alleging commission of the offense.
    1. If a person intends to rely upon an affirmative defense, the person shall, no later than ten (10) days before trial, notify the district attorney general in writing of the intention, or at such time as the court may direct naming the affirmative defense or defenses to be asserted, and file a copy of the notice with the clerk.
    2. Except as provided in this title, if there is a failure to comply with this subsection (c), the affirmative defense may not be raised; provided, that this shall not limit the right of the person to testify on the person's own behalf.
    3. The court may, for cause shown, allow late filing of the notice or grant additional time to the parties to prepare for trial or make other orders as may be appropriate.
    4. Evidence of an intention to raise an affirmative defense, which is later withdrawn, is not admissible in any civil or criminal proceeding against the person who gave the notice of the intention.
    5. This subsection (c) shall only apply in courts of record.
  3. The issue of the existence of an affirmative defense may not be submitted to the jury unless it is fairly raised by the proof and notice has been provided according to subsection (c).
  4. If the issue of the existence of an affirmative defense is submitted to the jury, the court shall instruct the jury that the affirmative defense must be established by a preponderance of the evidence.

Acts 1989, ch. 591, § 1; 1990, ch. 1030, § 5.

Sentencing Commission Comments.

This section prescribes the form, and the procedural and evidentiary consequences of an affirmative defense. A defense is an “affirmative defense” only if so designated in the criminal code.

Since the matters at issue in affirmative defenses are peculiarly within the defendant's knowledge, the defendant has the burden of raising the issue and proving, by a preponderance of evidence, the existence of the affirmative defense. To ensure that the prosecution is not surprised by the defendant's use of an affirmative defense, subsection (d) requires the defendant to provide the prosecutors with written notice of the intent to use an affirmative defense. Under subsection (c), good cause for late filing is intended to include failure of or delays in discovery.

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. Affirmative defense of claim of right to property, § 39-14-107.

Affirmative defense of insanity, § 39-11-501.

Affirmative defense of renunciation, § 39-12-104.

Affirmative defense to carrying a weapon on school property, § 39-17-1310.

Affirmative defense to criminal responsibility of a corporation, § 39-11-406.

Affirmative defenses to be asserted in answer, § 40-30-108.

Criminal exposure to HIV, HBV, HCV, affirmative defenses to, § 39-13-109.

Extortion, affirmative defenses to, § 39-14-112.

Gambling, affirmative offenses to, § 39-17-502.

Reports to law enforcement of certain injuries, affirmative defense to criminal liability, § 38-1-101.

NOTES TO DECISIONS

1. Defense Fairly Raised By Proof.

Court failed to properly instruct the jury on the affirmative defense for extortion found in T.C.A. § 39-14-112(b) because defendant inquired into the possibility of a more favorable divorce settlement, his wife's lawyer told defendant that his only option was to appeal, he then made a “list of demands,” and that evidence “fairly raised” the proposition that defendant reasonably believed that there was “harm done” to him and that his demands were “appropriate restitution”; the issue should have been submitted to the jury for them to determine if defendant proved by a preponderance of the evidence that his actions were a result of a reasonable claim for appropriate restitution for harm done. Parris v. State, 236 S.W.3d 173, 2007 Tenn. Crim. App. LEXIS 241 (Tenn. Crim. App. Mar. 15, 2007).

2. Burden of Proof.

In the case of the affirmative defense of renunciation, the burden of raising the defense rested with defendant, and, where the evidence supported the conclusion that there was no voluntary, complete renunciation on the part of defendant, he failed to carry his burden. State v. Jackson, 946 S.W.2d 329, 1996 Tenn. Crim. App. LEXIS 542 (Tenn. Crim. App. 1996).

Part 3
Culpability

39-11-301. Requirement of culpable mental state.

    1. A person commits an offense who acts intentionally, knowingly, recklessly or with criminal negligence, as the definition of the offense requires, with respect to each element of the offense.
    2. When the law provides that criminal negligence suffices to establish an element of an offense, that element is also established if a person acts intentionally, knowingly or recklessly. When recklessness suffices to establish an element, that element is also established if a person acts intentionally or knowingly. When acting knowingly suffices to establish an element, that element is also established if a person acts intentionally.
  1. A culpable mental state is required within this title unless the definition of an offense plainly dispenses with a mental element.
  2. If the definition of an offense within this title does not plainly dispense with a mental element, intent, knowledge or recklessness suffices to establish the culpable mental state.

Acts 1989, ch. 591, § 1; 1990, ch. 1030, §§ 6, 7.

Sentencing Commission Comments.

Subsection (a) reduces the number of mental elements to four. Section 39-11-302 defines each of the four. The former confusing distinction between general and specific intent has been abandoned.

The four mental elements are in a hierarchy. While each of the four elements is unique, subdivision (a)(2) provides that lesser levels of culpability are included in greater levels. For example, a person who acts “intentionally” also acts knowingly, recklessly and with criminal negligence.

Subsection (b) creates a presumption that at least one of the four mental states is required for offenses within the criminal code. See Duncan v. State, 26 Tenn. 148 (1846).

An intent to punish without the requirement of a culpable mental state must be clear from the language of the statute creating the offense. Pappas v. State, 135 Tenn. 499, 188, S.W. 52 (1916). Under subsection (c), offenses within this title which are silent regarding whether a culpable mental state is required will be presumed to require at least recklessness. The better reasoned cases from other jurisdictions have reached this result in interpreting common law authorities. See, e.g., People v. Angelo, 246 N.Y. 451, 159 N.E. 394 (1927).

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. Definitions of mental states, §§ 39-11-106, 39-11-302.

Law Reviews.

Criminal Attempt — Murder Two: The Law in Tennessee After State v. Kimbrough (Barbara Kritchevsky), 28 U. Mem. L. Rev. 3 (1997).

Rethinking Presumed Knowledge of the Law in the Regulatory Age, 82 Tenn. L. Rev. 137 (2014).

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

Invisible Bars: Adapting the Crime of False Imprisonment to Better Address Coercive Control and Domestic Violence in Tennessee, 71 Vand. L. Rev. 681 (2018).

NOTES TO DECISIONS

1. Application.

In a prosecution for aggravated rape, statutory language required that “intentional,” “knowing,” or “reckless” all should have been charged to the jury as such elements related to “reckless” behavior favored the defense and did not affect the results of the trial. State v. Jones, 889 S.W.2d 225, 1994 Tenn. Crim. App. LEXIS 309 (Tenn. Crim. App. 1994), rehearing denied, — S.W.2d —, 1994 Tenn. Crim. App. LEXIS 371 (Tenn. Crim. App. June 14, 1994), appeal denied, — S.W.2d —, 1994 Tenn. LEXIS 297 (Tenn. Oct. 10, 1994), superseded by statute as stated in, State v. Woodcock, 922 S.W.2d 904, 1995 Tenn. Crim. App. LEXIS 982 (Tenn. Crim. App. 1995).

T.C.A. § 39-11-301 applied to a prosecution for escape because the escape statute makes no reference to a requisite mental state. State v. Anderson, 894 S.W.2d 320, 1994 Tenn. Crim. App. LEXIS 823 (Tenn. Crim. App. 1994).

In a prosecution for aggravated assault, where the indictment charged a “knowing” assault, a jury instruction containing the mental element of “reckless” was not erroneous since “recklessly” is a lesser level of the mental element of “knowingly,” and if the state proved that defendant acted knowingly, it also would have proved that he acted recklessly. State v. Crowe, 914 S.W.2d 933, 1995 Tenn. Crim. App. LEXIS 623 (Tenn. Crim. App. 1995), appeal denied, — S.W.2d —, 1996 Tenn. LEXIS 43 (Tenn. Jan. 8, 1996).

Instructions that the offense of aggravated sexual battery included the mens rea element “that the defendant acted intentionally, knowingly or recklessly” were incorrect; this mental state applies to the element as to whether the victim was less than 13 years of age. Under T.C.A. § 39-13-504, the act itself — i.e., the touching — must be intentional. State v. Howard, 926 S.W.2d 579, 1996 Tenn. Crim. App. LEXIS 195 (Tenn. Crim. App. 1996), overruled, State v. Williams, 977 S.W.2d 101, 1998 Tenn. LEXIS 512 (Tenn. 1998).

No culpable mental state is required for guilt of driving under the influence. State v. Turner, 953 S.W.2d 213, 1996 Tenn. Crim. App. LEXIS 618 (Tenn. Crim. App. 1996).

Proof of intent, knowledge or recklessness is required to sustain a conviction for aggravated rape. State v. Hill, 954 S.W.2d 725, 1997 Tenn. LEXIS 524 (Tenn. 1997).

An indictment charging aggravated rape in violation of T.C.A. § 39-13-502 met constitutional requirements of notice and form and was valid, even though it failed to allege a culpable mental state. State v. Hill, 954 S.W.2d 725, 1997 Tenn. LEXIS 524 (Tenn. 1997).

An indictment need not specify a culpable mental state as long as the language of the indictment is sufficient to meet the constitutional requirements of notice to the accused of the charge against which the accused must defend. Hart v. State, 21 S.W.3d 901, 2000 Tenn. LEXIS 356 (Tenn. 2000).

An indictment is not rendered void for failing to allege a specific mental state as long as it reasonably identifies the nature of the criminal conduct alleged by the state in compliance with T.C.A. § 40-13-202 and the requisite mental state can be inferred from the alleged conduct. Hart v. State, 21 S.W.3d 901, 2000 Tenn. LEXIS 356 (Tenn. 2000).

Habeas court properly dismissed petitioner's application for writ of habeas corpus because the indictment charging petitioner with felony murder was valid since it referenced the statute defining felony murder, T.C.A. § 39-13-202, and described the offense, which provided notice to petitioner of the charged offense; because the indictment set forth the specific underlying felony supporting the felony murder charge, the requisite mental state was obtainable by reviewing the robbery statute, T.C.A. § 39-13-401, providing adequate notice to petitioner of the charge against him. Cooper v. Carlton, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 267 (Tenn. Crim. App. Apr. 30, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 560 (Tenn. Aug. 20, 2012), cert. denied, Cooper v. Sexton, 185 L. Ed. 2d 203, 133 S. Ct. 1260, 568 U.S. 1171, 2013 U.S. LEXIS 1298 (U.S. 2013).

2. Instructions.

Trial court properly instructed the jury on rape of a child where it instructed the jury that defendant could be found guilty of the crime only if the State proved beyond a reasonable doubt that he acted either intentionally, knowingly, or recklessly. State v. Clark, 452 S.W.3d 268, 2014 Tenn. LEXIS 913 (Tenn. Nov. 10, 2014), rehearing denied, — S.W.3d —, 2014 Tenn. LEXIS 1028 (Tenn. Dec. 4, 2014), cert. denied, Clark v. Tennessee, 135 S. Ct. 2846, 192 L. Ed. 2d 882, 2015 U.S. LEXIS 3937 (U.S. June 15, 2015).

Because the offense of rape did not specify a requisite mental state, it was not error for the trial court to instruct the jury that it could find defendant guilty if he acted recklessly in relation to the element of unlawful sexual penetration. State v. Jordan, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 116 (Tenn. Crim. App. Feb. 12, 2016), review denied and ordered not published, — S.W.3d —, 2016 Tenn. LEXIS 389 (Tenn. June 23, 2016).

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).

3. Evidence Sufficient.

While defendant was caring for the five-year-old victim, he consumed beer and marijuana and took the victim swimming at a lake without notifying his parents or supervising his activities, and where defendant had no knowledge of the victim's swimming abilities, defendant's conduct met the definition of criminal negligence under T.C.A. § 39-11-301(a)(2); upon the victim's death by drowning, evidence was sufficient to support defendant's conviction for criminally negligent homicide under T.C.A. § 39-13-212(a). State v. Campbell, 245 S.W.3d 331, 2008 Tenn. LEXIS 9 (Tenn. Jan. 18, 2008).

Proof that defendant intentionally caused the killing sufficed to prove that he knowingly caused the killing. State v. Short, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 290 (Tenn. Crim. App. May 7, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 693 (Tenn. Sept. 20, 2012).

4. Mutually Exclusive Offenses Not Found.

Defendant's convictions for felony murder and for aggravated criminal trespass were not mutually exclusive because the relevant offenses did not involve different mental states. For both aggravated burglary, which was the predicate felony for the felony murder conviction, and for aggravated criminal trespass, the State was required to prove that defendant acted with intent, knowledge, or recklessness. State v. Snipes, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 346 (Tenn. Crim. App. Apr. 12, 2013), cert. denied, Snipes v. Tennessee, 187 L. Ed. 2d 796, 134 S. Ct. 920, — U.S. —, 2014 U.S. LEXIS 94 (U.S. 2014).

5. Recklessly.

Because the verdict did not reflect the mens rea with which defendant acted, it was unclear whether the jury unanimously found that the he either intentionally or knowingly assaulted the victim causing serious bodily injury, and his conviction for Class C felony aggravated assault could not stand; the jury was correctly instructed as to the meaning of intentionally, knowingly, and recklessly, and because the mens rea of reckless is a lesser mens rea of intentional or knowing, the jury was unanimous in finding that defendant was guilty of reckless aggravated assault, and in order to do substantial justice, the conviction was so modified. State v. Beaty, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 491 (Tenn. Crim. App. July 8, 2016).

Because the jury's verdict did not reflect the mens with which it found defendant acted, it was unclear whether the jury unanimously found that defendant either intentionally or knowingly assaulted the victim causing serious bodily injury; because of this deficiency, defendant's conviction for Class C felony aggravated assault could not stand, but because the mens rea of reckless is a lesser mens rea of intentional or knowing, and the jury was properly instructed and was unanimous in finding, at a minimum, that defendant was guilty of reckless aggravated assault, the court imposed that conviction to do substantial justice. State v. Beaty, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 842 (Tenn. Crim. App. Nov. 8, 2016).

Defendant's aggravated assault conviction was proper, as he said he intentionally rammed the victims'  small car with his tractor-trailer because the driver pulled out in front of him and then tapped her brakes, plus defendant caused bodily injury to both victims with the use of a deadly weapon, his tractor-trailer; defendant's statement that he intentionally hit the vehicle was sufficient to establish the reckless mens rea. State v. Smith, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 632 (Tenn. Crim. App. Aug. 20, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 676 (Tenn. Nov. 14, 2018).

Trial court did not err by including recklessness as a mental state in the jury charge concerning aggravated rape and aggravated sexual battery because the indictment charged that the crimes had been committed intentionally, and therefore defendant was on notice that knowing and recklessness were contained within the statutory definition. State v. Watkins, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 184 (Tenn. Crim. App. Mar. 26, 2019).

39-11-302. Definitions of culpable mental state.

  1. “Intentional” refers to a person who acts intentionally with respect to the nature of the conduct or to a result of the conduct when it is the person's conscious objective or desire to engage in the conduct or cause the result.
  2. “Knowing” refers to a person who acts knowingly with respect to the conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist. A person acts knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result.
  3. “Reckless” refers to a person who acts recklessly with respect to circumstances surrounding the conduct or the result of the conduct when the person is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the accused person's standpoint.
  4. “Criminal negligence” refers to a person who acts with criminal negligence with respect to the circumstances surrounding that person's conduct or the result of that conduct when the person ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the accused person's standpoint.

Acts 1989, ch. 591, § 1.

Sentencing Commission Comments.

Intentional conduct or an intentional result occurs when the defendant wants to do the act or achieve the criminal objective. A defendant acts knowingly, on the other hand, when he or she is aware of the conduct or is practically certain that the conduct will cause the result, irrespective of his or her desire that the conduct or result will occur.

Subsection (c), defining “reckless” conduct, provides liability for conscious risk creation where there is no desire that the risk occur or no awareness that it is practically certain to occur.

Subsection (d) is in line with case law of Tennessee on the degree of negligence required for criminal culpability. The proposition that criminal liability be based on a higher degree of negligence than that required for civil liability is well settled. Claybrook v. State, 164 Tenn. 440, 51 S.W.2d 499 (1932); Miller v. State, 164 Tenn. 388, 50 S.W.2d 388, 50 S.W.2d 225 (1932); Copeland v. State, 154 Tenn. 7, 285 S.W. 565 (1926).

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. Culpable mental states, §§ 39-11-106, 39-11-301.

Definitions of mental states, § 39-11-106.

Requirement of culpable mental states, § 39-11-101.

Law Reviews.

Criminal Attempt — Murder Two: The Law in Tennessee After State v. Kimbrough (Barbara Kritchevsky), 28 U. Mem. L. Rev. 3 (1997).

Instructing the Jury in Murder Cases, 38 No. 7 Tenn. B.J. 30 (2002).

State v. Carson: A Misguided Attempt to Retain the Natural and Probable Consequence Doctrine of Accomplice Liability Under the Current Tennessee Code, 29 U. Mem. L. Rev. 273 (1998).

Tennessee Attempts to Tighten the Purse Strings on Punitive Damages: Hodges v. S.C. Toof & Co. (P. Steven Hacker), 60 Tenn. L. Rev. 983 (1993).

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

Invisible Bars: Adapting the Crime of False Imprisonment to Better Address Coercive Control and Domestic Violence in Tennessee, 71 Vand. L. Rev. 681 (2018).

NOTES TO DECISIONS

1. Intentionally and Knowingly.

Defendant's conviction for aggravated assault required the state to establish beyond a reasonable doubt that the defendant's actions were intentional or knowing, as defined by the criminal code; proof that occupants of a house were fearful when shots were fired into the house, while essential to establishing the actus reus, did not in any way establish this mens rea element, and defendant's conviction could not stand on the basis of such evidence. State v. Wilson, 924 S.W.2d 648, 1996 Tenn. LEXIS 361 (Tenn. 1996).

Person can act knowingly irrespective of desire that conduct or result will occur when that person is aware of nature of conduct or where conduct is reasonably certain to cause result. State v. Gray, 960 S.W.2d 598, 1997 Tenn. Crim. App. LEXIS 544 (Tenn. Crim. App. 1997).

Shooting at a car from a distance of one to one and one-half car lengths is reasonably certain to result in the death of an occupant. State v. Kelley, 34 S.W.3d 471, 2000 Tenn. Crim. App. LEXIS 166 (Tenn. Crim. App. 2000), review or rehearing denied, — S.W.3d —, 2000 Tenn. LEXIS 667 (Tenn. Nov. 20, 2000).

Second degree murder was a result-of-conduct offense, and allowing the jury to convict based upon awareness of the nature of the conduct or circumstances surrounding the conduct erroneously lessened the state's burden of proof for the offense; the error in a jury charge regarding the “knowing” element was not harmless, because the only real issue at trial was the degree of homicide committed, which in turn rested upon the mens rea and appropriate conduct element. State v. Page, 81 S.W.3d 781, 2002 Tenn. Crim. App. LEXIS 332 (Tenn. Crim. App. 2002).

Evidence was insufficient to sustain a second degree murder conviction because the only proof that defendant caused a head injury to the victim were the victim's reports that defendant “put her to the ground” and that she subsequently suffered a headache; there was no proof that defendant was aware that his treatment of the victim was “reasonably certain” to cause her death. State v. Parker, 350 S.W.3d 883, 2011 Tenn. LEXIS 881 (Tenn. Sept. 23, 2011).

Defendant's conviction for attempt to commit first-degree murder in violation of T.C.A. §§ 39-13-202(a) and 39-12-101 was appropriate because, considering the totality of the facts and circumstances surrounding the crimes committed against the victim in the course of the robbery, carjacking, and assault, the evidence was sufficient to demonstrate that a rational trier of fact could have concluded that defendant and his co-perpetrator, with premeditation, planned and intended to kill the victim, T.C.A. §§ 39-13-202(d), 39-11-302(a). State v. Davis, 354 S.W.3d 718, 2011 Tenn. LEXIS 962 (Tenn. Oct. 17, 2011).

Evidence that defendant repeatedly punched and kicked the victim all over her body, including her head, after she lost consciousness, causing the victim's brain to swell and eventually her death, was sufficient for the trier of fact to conclude defendant's knowingly killed the victim. State v. Lopez, 440 S.W.3d 601, 2014 Tenn. Crim. App. LEXIS 156 (Tenn. Crim. App. Feb. 24, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 492 (Tenn. June 20, 2014).

Evidence supported defendant's conviction because, although defendant claimed that a shotgun accidentally discharged, a law enforcement agent performed function tests on the shotgun and found that it would not accidentally discharge as defendant claimed. The doctor who performed an autopsy of the victim testified that the doctor believed that the victim was lying flat on floor when shot, and defendant held a baseball bat to demonstrate how the shotgun was pointed downward when the shot was fired. State v. Ramsey, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 985 (Tenn. Crim. App. Oct. 29, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 63 (Tenn. Jan. 16, 2015), cert. denied, Ramsey v. Tennessee, 135 S. Ct. 2809, 192 L. Ed. 2d 853, 2015 U.S. LEXIS 3727 (U.S. June 8, 2015).

Evidence was sufficient to support a conviction for first degree premeditated murder because it was within the jury's prerogative to reject testimony from experts that defendant lacked the mens rea required for this offense based on his intellect, brain injuries, and intoxication by alcohol or drugs. The evidence showed that defendant and the victim had an extremely tumultuous relationship; moreover, he fled the crime scene after the stabbing and was ultimately detained by law enforcement in another state. State v. Blocker, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 372 (Tenn. Crim. App. May 18, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 650 (Tenn. Sept. 22, 2016).

Jury could have inferred that defendant intentionally used his motor vehicle in a way that caused the victim to reasonably fear imminent harm, and thus the evidence supported defendant's convictions of aggravated assault and vandalism; defendant first encountered the victim at the mailboxes in the subdivision and parked bumper to bumper with her car, as she had parked in the wrong direction, and when she tried to back out, he rammed his car into her car, and as she drove away, he followed her and rammed her car again, and the damage to her car was more than $ 1,000. State v. Windrow, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 455 (Tenn. Crim. App. June 28, 2016).

Evidence was sufficient to sustain defendant's two convictions for aggravated assault because the State proved he intended to cause the officers to reasonably fear imminent bodily injury by the display of a deadly weapon; the officers testified that they were scared when defendant pointed a shotgun in their director, and a jury could have found that defendant was aware that his conduct caused the officers to fear injury. State v. Willis, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 675 (Tenn. Crim. App. Sept. 9, 2016).

Evidence sufficiently established that defendant engaged in a shoot-out and, acting in a state of passion produced by adequate provocation because of being shot at after attempting to stop a robbery, he shot back at the car in which four rival gang members rode, and he attempted to kill the occupants therein; his convictions of three counts of attempted voluntary manslaughter against two co-defendants and one victim was proper. 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 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).

Evidence was sufficient to support defendant's conviction for the first degree premeditated murder of defendant's spouse because defendant acted intentionally and with premeditation in that defendant, following an argument with the victim, shot the door to the victim's apartment multiple times and then kicked open the door. Once inside, defendant repeatedly fired a gun at the unarmed victim while the victim was retreating and begging for mercy, broke into the bathroom when the victim hid in the bathroom, and shot the victim multiple times. State v. Durant, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 30 (Tenn. Crim. App. Jan. 18, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 311 (Tenn. May 18, 2017).

Defendant's sole act of firing one bullet toward the occupants of an apartment was not sufficient to support three convictions for attempted second degree murder, as the evidence did not show that he acted with the objective to cause the killing of three victims or that he believed firing one bullet would cause the killing of three victims, who were spread out across two rooms, without further conduct on his part. State v. Turner, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 337 (Tenn. Crim. App. May 5, 2017), review denied and ordered not published, — S.W.3d —, 2018 Tenn. LEXIS 204 (Tenn. Apr. 19, 2018).

Evidence was sufficient to support defendant's conviction of second-degree murder, rather than voluntary manslaughter, because it showed that in the months prior to the shooting arguments between defendant and his wife had escalated, defendant admitted to policy that after escaping his wife with the knife he retrieved his loaded handgun from the shed and aimed it at his wife, an agent concluded that the handgun was not malfunctioning, and a physician testified that the gun had been fired from between six inches and three feet. State v. Langston, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 374 (Tenn. Crim. App. May 12, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 603 (Tenn. Sept. 22, 2017).

Defendant acted intentionally because witnesses testified that defendant chased seven unarmed victims, with no evidence of provocation presented, fired at least eleven gunshots at the victims, and one of the victims died as the result of a gunshot wound to the victim's neck, which was fired at the victim in relatively close proximity. State v. Sims, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 814 (Tenn. Crim. App. Sept. 5, 2017).

Evidence was sufficient to convict defendant of second degree murder because he was home with the victim, his mother, on the morning she died; defendant's wife saw him in the victim's room in the hours before her death; the wife heard a scream and, when she questioned defendant about what had happened, he responded, from the victim's room, that the victim had fallen and that he would take care of her; the victim was found hours later in her bedroom having been beaten to death; the day before her death, defendant sold the victim's jewelry for cash; the victim's blood was found on defendant's clothes; and it was defendant who was last seen with the victim in the hours shortly before she died. State v. Knight, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 881 (Tenn. Crim. App. Sept. 28, 2017).

Evidence was sufficient to find defendant guilty of violating the sexual offender registry's requirements because he was convicted of aggravated sexual battery in Kansas, which was classified in Tennessee as a violent sexual offense; as he was homeless, he was required to report to a probation and parole officer monthly; after five months, he quit reporting to the officer; he provided written acknowledgment that he was aware of and understood the requirements of the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification, and Tracking Act of 2004; and, based on his signature on the registration and forms, the law presumed he had knowledge of the Act's registration, verification, and tracking requirements. State v. Hoss, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1033 (Tenn. Crim. App. Dec. 15, 2017), review denied and ordered not published, — S.W.3d —, 2018 Tenn. LEXIS 205 (Tenn. Apr. 18, 2018).

Evidence presented at trial supported the jury's finding of premeditation in the shooting death of the victim because the victim was unarmed when the victim was killed, defendant did not render aid and immediately fled the scene after firing shots at the victim, eyewitness testified that three to four shots were fired without any provocation from the victim, and the victim was shot in the back. State v. Davis, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 54 (Tenn. Crim. App. Jan. 26, 2018).

Evidence was sufficient to support defendant's conviction of second-degree murder because it showed that he shot the victim several times after he greeted the victim at his door, the victim identified his shooter using a known nickname for defendant, the casings recovered from the crime scene matched the weapon owned by defendant, and the medical examiner testified that the victim's cause of death was the result of multiple gunshot wounds. State v. Starks, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 171 (Tenn. Crim. App. Mar. 5, 2018).

Evidence was sufficient to support defendant's conviction of possession of contraband in a penal institution; the jury could have inferred defendant's knowledge of the contraband based on his failure to take advantage of multiple opportunities to turn over the controlled substance, the manner in which it was concealed, and defendant's control over the location where the drugs were located. State v. Champion, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 392 (Tenn. Crim. App. May 18, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 642 (Tenn. Oct. 11, 2018).

Evidence was sufficient to convict defendant of two counts of aggravated sexual battery based on the allegations that he touched the victim's intimate parts with his hand and that he penetrated the victim's anus with his penis because the jury could have inferred that he intended to sexually touch the victim as the victim stated that he showed her explicit photographs of minors; the jury could have inferred that defendant intended to sexually touch the victim as the victim stated that he touched her intimate areas multiple times; the testimony of a minor victim alone was sufficient to uphold a conviction; and the jury impliedly credited the victim's statements that defendant intentionally made sexual contact with her intimate areas. State v. Freels, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 520 (Tenn. Crim. App. July 13, 2018).

Sufficient evidence supported defendant's conviction for conspiracy to possess methamphetamine with the intent to sell or deliver in a drug-free zone because a rational juror could find defendant knew a package delivered to defendant's address in a drug-free zone contained methamphetamine which defendant and defendant's associates intended to sell. State v. Cole, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 824 (Tenn. Crim. App. Nov. 5, 2018).

Evidence was sufficient to support defendant's conviction for attempted first degree murder (resulting in serious bodily injury), because the evidence showed specific intent in that defendant and the victim were involved in a physical altercation, defendant waited for the victim to return home from work, defendant walked up to the victim and told the victim, “You know you should have killed me,” and defendant pulled a bag concealing a revolver from behind defendant's back and fired multiple times and wounded the victim. State v. Rogers, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 214 (Tenn. Crim. App. Apr. 4, 2019), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 315 (Tenn. July 25, 2019).

Reasonable juror could have rejected defendant's claim of self-defense and concluded that defendant acted knowingly by being aware that stabbing the victim with a pocketknife multiple different times in the head and neck area was reasonably certain to cause death. State v. Freeman, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 329 (Tenn. Crim. App. May 24, 2019).

Evidence was sufficient to convict defendant of two counts of aggravated assault with a deadly weapon on two law enforcement officers because defendant intentionally and knowingly used his vehicle as a deadly weapon, causing both officers to reasonably fear imminent bodily injury as defendant placed his vehicle into reverse and rammed into the officers'  vehicle with enough force to cause it to spin over 90 degrees; and an automobile could be considered a deadly weapon. State v. Baker, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 341 (Tenn. Crim. App. June 7, 2019).

Evidence supported defendant's conviction for second degree murder because of defendant's varying statements about the victim's death, expert medical testimony that the victim's gunshot wounds were not self-inflicted as defendant claimed, and a police sergeant's testimony that the pistol used to kill the victim—with whom defendant was living—had likely been wiped off. The jury could have concluded that defendant knew that defendant's conduct in shooting defendant's pistol at the victim's face was reasonably certain to cause the victim's death. State v. Dodd, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 799 (Tenn. Crim. App. Dec. 23, 2019).

Evidence supported defendant's conviction for second-degree murder because defendant knowingly killed the victim beyond a reasonable doubt as defendant approached the victim when the victim was walking, defendant confronted the victim about a rumor of the victim hitting defendant's sibling, the victim put the victim's arm around defendant in a friendly way, and defendant fatally shot the victim. Although defendant claimed that he shot the victim in self-defense, the victim was neither acting aggressively towards defendant, nor carrying a gun. State v. Branch, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 79 (Tenn. Crim. App. Feb. 11, 2020).

Evidence supported defendant's conviction for possession of a Schedule II controlled substance for resale because the evidence was sufficient that defendant had actual possession of a cylinder of methamphetamine before a police officer initiated a traffic stop, that defendant directed defendant's paramour to conceal it in the paramour's vagina, and that defendant intended to re-obtain actual possession if the police failed to discover the drugs. Defendant had the power and intention to exercise dominion and control over the methamphetamine. State v. Ledet, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 224 (Tenn. Crim. App. Apr. 7, 2020).

Evidence was sufficient to establish a knowing killing because defendant stabbed the victim twice; the chest wound was five to six inches deep, and it resulted in a fractured rib, a lacerated lung, a lacerated pericardium, and penetrated the heart; the back wound was three to four inches deep; the medical examiners agreed that the chest wound required significant force to inflict; and, although defendant was trained in first aid, he failed to seek immediate medical assistance for the victim, who bled profusely, and lived for possibly 20-30 minutes after she was stabbed. State v. Robinson, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 553 (Tenn. Crim. App. Aug. 13, 2020).

2. Reckless.

Punitive damage award of $20,000,000 against automobile manufacturer in a wrongful death action did not violate manufacturer's due process rights even though the ratio between the compensatory damage award and the punitive damage award was one to 5.35 because manufacturer's conduct was reprehensible where even though it had knowledge of the danger it continued to sell its vehicles in an unreasonably dangerous condition for years; court held that punitive damage award of $125,000, the maximum fine for reckless homicide, would not adequately punish manufacturer or deter future instances of similar conduct. Flax v. DaimlerChrysler Corp., 272 S.W.3d 521, 2008 Tenn. LEXIS 505 (Tenn. July 24, 2008), rehearing denied, Flax v. Daimlerchrysler Corp., — S.W.3d —, 2008 Tenn. LEXIS 970 (Tenn. Nov. 12, 2008), cert. denied, ,, 556 U.S. 1257, 129 S. Ct. 2433, 174 L. Ed. 2d 227, 2009 U.S. LEXIS 3910 (U.S. 2009), superseded by statute as stated in, Grant v. Kia Motors Corp., — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 157325 (E.D. Tenn. May 10, 2016), superseded by statute as stated in, Cone v. Hankook Tire Co., — F. Supp. 2d —, 2017 U.S. Dist. LEXIS 8607 (W.D. Tenn. Jan. 23, 2017).

In a case where one passenger was killed and the others were injured, the evidence was sufficient to convict defendant of vehicular homicide by intoxication, vehicular assault with intoxication, and reckless endangerment because, although defendant initially asked other passengers to drive his vehicle, he later assumed control of the vehicle with the knowledge that not all of the passengers had access to seat belts; at that time, according to a passenger, defendant's speech was slurred and his eyes appeared glassy; defendant drove at a high rate of speed, clipped a culvert by a driveway, and lost control of and flipped the vehicle; and an analysis of defendant's blood showed the presence of drugs that affected his central nervous system. State v. Clark, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 601 (Tenn. Crim. App. Aug. 15, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 903 (Tenn. Nov. 22, 2016).

Evidence was sufficient to support defendant's convictions for reckless endangerment and reckless aggravated assault because the State of Tennessee presented evidence that defendant placed the numerous occupants of a home into imminent danger of death or serious bodily injury by recklessly firing a rifle through the walls of the home, causing bodily injury to the victim of the gunshot. State v. Butts, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 243 (Tenn. Crim. App. Mar. 29, 2018).

Evidence was sufficient to support defendant's conviction of reckless endangerment with a deadly weapon; the accomplice witness testimony was sufficiently corroborated, plus the evidence established that while driving past a bar, defendant handed a loaded firearm to the accomplice, who was so intoxicated he had been kicked out of the same bar minutes earlier, and signaled for him to shoot, and at the time, the bar was full of patrons, such that defendant acted recklessly. State v. Katz, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 742 (Tenn. Crim. App. Oct. 1, 2018).

Evidence was sufficient to support defendant's reckless endangerment convictions because a police officer found cartridge cases fired from the same unknown gun at the scene of a shooting in a club, defendant admitted to shooting defendant's gun—which defendant threw away—multiple times in the club, and the victims were shot in the club. A reasonable jury could have concluded that defendant recklessly engaged in conduct that placed the victims in imminent danger of death or serious bodily injury while using or displaying a deadly weapon. State v. Pettis, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 314 (Tenn. Crim. App. May 17, 2019).

Evidence was sufficient to support defendant's conviction for reckless aggravated assault because a police officer found cartridge cases fired from the same unknown gun at the scene of a shooting in a club, the victim testified that defendant shot the victim in the club, and defendant admitted to shooting defendant's gun—which defendant threw away—multiple times in the club. A reasonable jury could have concluded that defendant recklessly caused bodily injury to the victim while using or displaying a deadly weapon. State v. Pettis, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 314 (Tenn. Crim. App. May 17, 2019).

Crime of attempted reckless endangerment did not exist, and therefore defendant's conviction was vacated, because in order to find defendant guilty, defendant would have had to have the intent to act recklessly. State v. Patterson, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 408 (Tenn. Crim. App. June 15, 2020).

3. —Awareness Factor.

Defendant does not have to be aware of his conduct and aware that his conduct would cause the result of death to be convicted of second-degree murder. State v. Rutherford, 876 S.W.2d 118, 1993 Tenn. Crim. App. LEXIS 639 (Tenn. Crim. App. 1993).

What differentiates recklessness from “criminal negligence” is the degree of awareness — that is, recklessness includes awareness, but disregard, of a risk while criminal negligence involves a lack of awareness when one should be aware. State v. Gillon, 15 S.W.3d 492, 1997 Tenn. Crim. App. LEXIS 1024 (Tenn. Crim. App. 1997).

4. Criminal Negligence.

The statutory definition of criminal negligence is not unconstitutionally vague. State v. Butler, 880 S.W.2d 395, 1994 Tenn. Crim. App. LEXIS 213 (Tenn. Crim. App. 1994).

For conduct to constitute criminal negligence, the accused must know, or should know, that his or her conduct, or the result of that conduct, will imperil the life of another given the circumstances that exist when the conduct takes place. State v. Adams, 916 S.W.2d 471, 1995 Tenn. Crim. App. LEXIS 876 (Tenn. Crim. App. 1995).

Determination that defendant was reckless in the operation of his truck led to the inevitable conclusion that the defendant was also criminally negligent. State v. Gillon, 15 S.W.3d 492, 1997 Tenn. Crim. App. LEXIS 1024 (Tenn. Crim. App. 1997).

5. —Substantial and Unjustifiable Risk.

T.C.A. § 39-11-302(d) views the situation through the eyes of the suspect and whether he could have perceived and then chosen to ignore a “substantial and unjustifiable risk.” State v. Slater, 841 S.W.2d 841, 1992 Tenn. Crim. App. LEXIS 726 (Tenn. Crim. App. 1992).

When a driver disregards a stop sign and enters a four-lane, divided highway, and without slowing down, crosses through a median connector, the risk of injury is surely a “substantial and unjustifiable risk.” State v. Gillon, 15 S.W.3d 492, 1997 Tenn. Crim. App. LEXIS 1024 (Tenn. Crim. App. 1997).

6. Evidence Sufficient.

Defendant failed to show that a rational trier of fact could not have found him guilty beyond a reasonable doubt of second-degree murder; the defendant actively sought out a knife and chased his brother from corner to corner in the trailer, he stabbed victim twice while chasing him, and a reasonable trier of fact could have found that the defendant was aware of the nature of his conduct or was practically certain that the conduct would cause the result. State v. Rutherford, 876 S.W.2d 118, 1993 Tenn. Crim. App. LEXIS 639 (Tenn. Crim. App. 1993).

Evidence was sufficient for the jury reasonably to infer that the defendant committed the knowing killing of the victim. State v. Copenny, 888 S.W.2d 450, 1993 Tenn. Crim. App. LEXIS 401 (Tenn. Crim. App. 1993), appeal denied, State v. Copeny, — S.W.2d —, 1993 Tenn. LEXIS 351 (Tenn. 1993).

In a prosecution for aggravated rape and aggravated sexual battery, mere recklessness as to the age of the victim was sufficient evidence to establish defendant's guilt for either crime. State v. Parker, 887 S.W.2d 825, 1994 Tenn. Crim. App. LEXIS 314 (Tenn. Crim. App. 1994).

In a prosecution for aggravated assault, testimony that defendant looked directly at the victim when he kicked her was sufficient proof that he acted intentionally, and the state did not have to demonstrate that he intended to cause serious bodily injury to the victim. State v. Crowe, 914 S.W.2d 933, 1995 Tenn. Crim. App. LEXIS 623 (Tenn. Crim. App. 1995), appeal denied, — S.W.2d —, 1996 Tenn. LEXIS 43 (Tenn. Jan. 8, 1996).

Evidence was sufficient to enable a rational trier of fact to find the essential elements of second-degree murder, a knowing killing of another, beyond a reasonable doubt. State v. Summerall, 926 S.W.2d 272, 1995 Tenn. Crim. App. LEXIS 1009 (Tenn. Crim. App. 1995).

One who participates in beating another person over the head with a brick ought to be aware of a substantial and unjustifiable risk that death will occur and therefore would be “criminally negligent” under T.C.A. § 39-11-302(d); alternatively, an ordinary person engaging in such conduct would be aware of the substantial and unjustifiable risk that death will occur and therefore would be “reckless” under T.C.A. § 39-11-302(c); similarly, participation in beating a victim over the head with a brick is conduct reasonably certain to cause death and therefore a participant in such behavior would be “knowing” under T.C.A. § 39-11-302(b). 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).

Evidence was sufficient to show that 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. Proof of premeditation was abundant; deadly weapons were used and witnesses testified that defendants were part of the crowd beating 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 sustain defendant's reckless endangerment conviction where defendant left his shotgun, which he knew to be loaded and cocked, in woods that were 50 feet behind a house. The time he left the gun, defendant was fleeing from the police, and while there were no children or other persons in the woods at that time, defendant had seen children playing at a nearby residence. State v. Goodwin, 143 S.W.3d 771, 2004 Tenn. LEXIS 552 (Tenn. 2004), rehearing denied, — S.W.3d —, 2004 Tenn. LEXIS 696 (Tenn. 2004).

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).

Evidence was sufficient to support defendant's conviction of reckless endangerment because he temporarily pinned the officer between the victim's car and another car. State v. Wilson, 211 S.W.3d 714, 2007 Tenn. LEXIS 22 (Tenn. 2007).

Evidence was sufficient to sustain defendant's convictions for first degree premeditated murder and facilitation of attempted first degree premeditated murder, because defendant and his accomplices formed a firing line while at least two of them aimed their weapons toward a group of unarmed persons, and without provocation opened fire; two bullets struck and killed one victim, a third bullet struck and injured another victim, and defendant rendered no aid to the victims. Finch v. State, 226 S.W.3d 307, 2007 Tenn. LEXIS 534 (Tenn. June 4, 2007).

Evidence was sufficient to convict defendant of possession of cocaine with intent to sell because: (1) Defendant took off on foot and got into a scuffle with a police officer; (2) After defendant was arrested, the officer located a blue container filled with .5 grams of cocaine near the area where the scuffle took place; (3) Defendant claimed that the cocaine was for his personal use; (4) The officer testified that the amount discovered was not consistent with personal use; (5) No drug paraphernalia was found; and (6) Defendant was spotted in a location known for illegal drug sales. State v. Nelson, 275 S.W.3d 851, 2008 Tenn. Crim. App. LEXIS 346 (Tenn. Crim. App. Apr. 24, 2008).

Because the state needed to prove only that petitioner intentionally attempted to kill someone (and not necessarily anyone specifically) the evidence was plainly sufficient to support petitioner's attempted first degree murder conviction, and he was not entitled to habeas relief; the evidence produced at trial revealed that petitioner, after threatening to get a gun and return to kill either two specific individuals, or everyone, went to his house, retrieved his shotgun, and upon returning to the tavern, fired the shotgun into the tavern. Krantz v. Lindamood,  594 F.3d 896, 2010 FED App. 43P, 2010 U.S. App. LEXIS 3008 (6th Cir. Feb. 17, 2010), cert. denied, 562 U.S. 869, 131 S. Ct. 166, 178 L. Ed. 2d 98, 2010 U.S. LEXIS 6657 (U.S. 2010).

Evidence that defendant shot the victim in the abdomen at close range, which was likely to cause the victim's death, was sufficient to support defendant's convictions for second degree murder and reckless homicide. State v. Davis, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 431 (Tenn. Crim. App. May 21, 2013), aff'd, 466 S.W.3d 49, 2015 Tenn. LEXIS 463 (Tenn. June 3, 2015).

Sufficient evidence supported defendant's drug and conspiracy convictions because (1) a jury could infer from evidence that a portion of the substance defendant sold was cocaine that the entire substance was cocaine, and (2) the evidence showed defendant's implied understanding with a co-defendant. State v. Murchison, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 127 (Tenn. Crim. App. Feb. 12, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 555 (Tenn. Aug. 18, 2016).

Evidence was sufficient to support defendant's convictions for conspiracy to sell more than 26 grams of cocaine within 1,000 feet of a school and conspiracy to deliver more than 26 grams of cocaine within 1,000 feet of a school where it showed that he personally sold cocaine to the confidential informant on several occasions, he communicated with his co-defendant about selling cocaine to the informant, he was present for a buy between the co-defendant and the informant at a carwash, he discussed the co-defendant's drug prices with the informant, and acted as a drug courier between the co-defendant and the informant. State v. Graham, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 175 (Tenn. Crim. App. Mar. 8, 2016).

Evidence was sufficient to convict defendant of aggravated assault because defendant either intended to use a deadly weapon to cause bodily injury to the second victim or was aware that his conduct of shooting into the front seat of the vehicle where the second victim was sitting beside the first victim was reasonably certain to result in bodily injury to the second victim. State v. Brown, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 274 (Tenn. Crim. App. Apr. 12, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 653 (Tenn. Sept. 22, 2016).

Evidence was sufficient to convict defendant of aggravated assault because defendant acted at least knowingly in causing the two backseat passengers to reasonably fear imminent bodily injury as defendant was aware that his conduct of using a deadly weapon to shoot into the victim's vehicle was reasonably certain to cause the other passengers in the vehicle to reasonably fear imminent bodily injury. State v. Brown, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 274 (Tenn. Crim. App. Apr. 12, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 653 (Tenn. Sept. 22, 2016).

Evidence was sufficient to support defendant's conviction of reckless endangerment against his two-month-old daughter where it showed that he shot into the driver's car while his daughter was strapped in her infant carrier in the backseat, defendant knew that the victim was in the vehicle because he had placed her there, he recklessly shot through the window of the car on the passenger side, and he walked around to the driver's side and fired multiple shots into the car. State v. Bailey, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 468 (Tenn. Crim. App. June 29, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 770 (Tenn. Oct. 20, 2016).

Evidence was sufficient to support defendant's conviction of possession of 150 grams or more of heroin with the intent to sell or distribute where it showed that a package containing heroin was addressed to a fictitious person, when a detective posing as a delivery person approached the residence on the package defendant ran toward him from the other side of the duplex, defendant told the detective that it was his house, he followed the detective to the truck to retrieve the package, and he was arrested after receiving it. State v. Gonzalez-Fonesca, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 526 (Tenn. Crim. App. July 21, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 51 (Tenn. Jan. 19, 2017).

Sufficient evidence supported defendant's second-degree murder conviction because a jury could reasonably infer that defendant knowingly killed the victim. State v. Hollingsworth, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 17 (Tenn. Crim. App. Jan. 11, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 352 (Tenn. May 24, 2017).

Evidence was sufficient to support defendant's conviction of attempted second-degree murder because a witness and the victim gave accounts of witnessing defendant stab the victim multiple times after an argument, and a paramedic testified that the victim had to be transported to the hospital for immediate surgery. State v. Rahman, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 180 (Tenn. Crim. App. Mar. 9, 2017).

Evidence was sufficient to support defendants'  second-degree murder convictions where it established that defendants approached the victim and his friends at an apartment complex, produced guns, fired multiple shots at the victim, and fled the scene. State v. Flynn, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 350 (Tenn. Crim. App. May 5, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 600 (Tenn. Sept. 22, 2017).

For purposes of T.C.A. §§ 39-14-146, 39-14-105, 39-11-302(b), the evidence was sufficient to show defendant intended to deprive the store of the laptop and knowingly caused it to be removed from the store, and a jury could have found that the laptop had a fair market value of $ 750, given the testimony; defendant exited the store with a man carrying the laptop, refused the store employee's request to inspect the contents of the bag, and drove away. State v. Moore, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 567 (Tenn. Crim. App. June 29, 2017).

Evidence was sufficient to convict defendant of criminally negligent homicide and two counts of attempted aggravated robbery because defendant went to the apartment of the victim's first son in search of drugs; he was wearing a black hoodie and a cap; the victim, his wife, and his second son left the apartment to go home, but, as they were leaving in their vehicle, three men wearing black hoodies approached the vehicle to rob them; the victim's sons recognized defendant as one of the three men as he was wearing the same clothing that he wore earlier to the apartment; the second son testified that defendant shot the victim; and the first son testified that he was 100% percent sure that defendant was the person he saw committing the robbery. State v. Gergish, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 705 (Tenn. Crim. App. Aug. 11, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 857 (Tenn. Dec. 6, 2017).

Evidence was sufficient to convict defendant of aggravated child abuse of the three-month-old victim because, other than some slight congestion, the victim was healthy when her mother dropped her off with defendant; a video recorded on defendant's phone at 12:45 that afternoon showed the victim appearing unharmed and not displaying any symptoms of a severe brain injury; the victim's injuries were discovered around 2:03 p.m. when defendant's neighbor called 911; a child abuse pediatrician classified the injuries as non-accidental; and it was reasonable for the jury to conclude that defendant knowingly inflicted the injuries as she was the only person capable of inflicting such injuries on the victim at the time they were sustained. State v. Humphrey, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 854 (Tenn. Crim. App. Sept. 19, 2017).

Evidence was sufficient to support defendant's convictions for three counts of aggravated child abuse because defendant knowingly engaged in the conduct that resulted in the victim's bone fractures; the two-month-old victim had nine bone fractures, a doctor concluded that the fractures were the result of blunt force trauma to the chest or any type of squeezing mechanism, and defendant admitted to becoming frustrated with the victim and squeezing him. State v. McDuffie, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 865 (Tenn. Crim. App. Sept. 26, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 807 (Tenn. Nov. 16, 2017).

Evidence was sufficient to convict defendant of theft of property valued over $10,000 but less than $60,000 because defendant was driving the truck that had been reported stolen by the owner; when stopped near a repair shop, defendant told officers that he thought the truck belonged to another individual and that he was taking it for repairs; and the reasons given by defendant for driving the truck were contradicted by the other individual's testimony at trial that he did not operate a trucking company at the time and did not employ defendant as a driver or repairman. State v. Richards, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 956 (Tenn. Crim. App. Nov. 14, 2017).

Evidence was sufficient to convict defendant of the first-degree, felony murder of the first victim, his estranged wife, committed during the first-degree, attempted murder of the second victim because defendant's course of action in obtaining a gun in advance of the shooting, lying in wait, undetected outside of the home, attacking the first victim by grabbing her and pointing a gun to her head, threatening to shoot both victims, shooting the first victim, and then fleeing the scene established his conscious objective was to kill both victims; defendant admitted that he intended to kill the second victim; and the State established defendant committed the first-degree, attempted murder of the second victim with sufficient evidence. State v. Beverly, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1029 (Tenn. Crim. App. Nov. 28, 2017).

Evidence was sufficient to convict defendant of reckless endangerment because defendant engaged in reckless conduct that placed the victim in imminent danger of death or serious bodily injury when he used a pocketknife to slash the victim four times; the jury acted within its province if it rejected defendant's testimony that he merely acted to defend himself by reaching for and using his knife to injure the unarmed victim, who punched defendant; and the jury was within its province if it determined that defendant's use of a knife was an unreasonable response to the use or threatened use of unlawful force by the victim or that defendant's use of deadly force was not based upon reasonable beliefs. State v. Dixon, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1032 (Tenn. Crim. App. Dec. 15, 2017).

Evidence was sufficient to establish that defendant premeditatedly and intentionally killed the victim because defendant acquired a gun prior to the victim's killing, he drove around for approximately thirty minutes observing the victim before he exited his car and shot the victim in the back of the head, and he fled the scene and threw the murder weapon in a lake; defendant testified that upon seeing the victim, he knew he was going to shoot the victim. State v. Crowley, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 34 (Tenn. Crim. App. Jan. 17, 2018).

Evidence was sufficient to support defendant's conviction of attempted second degree murder because it showed that defendant approached the victims after they left a store, he pulled out his gun, the victims began walking backwards, defendant attempted to hit one victim with a glass bottle, both victims fell, and when the second victim reached for the gun defendant shot him. State v. Johnson, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 62 (Tenn. Crim. App. Jan. 30, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 369 (Tenn. June 8, 2018).Evidence was sufficient to convict defendant mother of aggravated child neglect because she acknowledged that she noticed blisters on the 10-month-old victim on a Wednesday and Thursday; defendant was told that the victim should be taken to a doctor or a children's hospital; defendant did not take the victim for medical treatment until she was forced to do so five or six days after he was injured; 15% of his total body surface was covered with second degree burns; the first two or three days of the victim's burns were the most painful; he could have been treated immediately with narcotics and steroids to lessen the swelling and decrease the pain from his eye injuries; and the lack of medical treatment caused him to suffer excruciating pain. State v. Lopez, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 188 (Tenn. Crim. App. Mar. 13, 2018).

Evidence was sufficient to convict defendant of reckless endangerment because the 12-year-old victim testified that after he ran out of the house, he observed bullets flying past him and heard bullets ricocheting off the truck he was hiding behind. State v. Grant, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 294 (Tenn. Crim. App. Jan. 4, 2018).

Defendant was not entitled to a judgment of acquittal because sufficient evidence supported defendant's conviction for attempted second-degree murder, as the evidence showed defendant approached the victim from behind and slashed the victim's throat from ear to ear. State v. Wilson, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 351 (Tenn. Crim. App. May 7, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 567 (Tenn. Sept. 13, 2018).

Evidence was sufficient to support defendant's conviction of second-degree murder because she admitted that she grabbed the rifle out of the closet and shot the victim, the medical testimony was that the victim died of a single gunshot wound to the front of his torso, defendant sent text messages to multiple people claiming that she “shot him,” a rifle was found near the victim's body, and a single shell casing was found at the end of the main hallway of the house. State v. Sherlin, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 555 (Tenn. Crim. App. July 24, 2018).

Evidence was sufficient to support defendant's conviction of first-degree murder because it showed that the victim suffered a fatal gunshot wound to the back of his head, it was a contact wound, a special agent testified that the shotgun only fired as designed, defendant was familiar with firearm safety, defendant used a deadly weapon on an unarmed, sleeping victim, and the jury could reasonably conclude that prior to killing the victim, defendant came up with a plan to cover up the crime she planned to commit by quickly asserting that it was an accident. State v. Brewer, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 579 (Tenn. Crim. App. July 31, 2018).

Evidence was sufficient to support defendant's convictions of second-degree murder because when he exited the club, someone handed him a handgun, and he immediately turned and shot the unarmed victims, killing them. State v. Taylor, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 613 (Tenn. Crim. App. Mar. 13, 2018).

Evidence was sufficient to sustain defendant's conviction for the sale of less than 0.5 grams of cocaine because he knowingly sold less than 0.5 grams of cocaine to a confidential informant; the informant indicated to defendant that he desired to purchase cocaine and gave defendant sixty dollars, and defendant eventually gave the informant a substance later determined to be cocaine. State v. Jones, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 630 (Tenn. Crim. App. Aug. 17, 2018).

Evidence was sufficient to sustain defendant's convictions for the first degree premeditated murder of one victim and the attempted first degree murder of a second victim because there was overwhelming evidence that he acted with premeditation; defendant was involved in a verbal altercation with the victims, he made phone calls to family members, who arrived armed at an apartment complex, and he lured the unarmed victims from an apartment with a challenge to fight. State v. Carter, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 647 (Tenn. Crim. App. Aug. 22, 2018).

Evidence was sufficient to support defendant's conviction of second-degree murder because it showed that after an argument, defendant fired multiple shots at the unarmed victim who was attempting to run, both of the shots into the victim's back would have been fatal, and defendant left the scene and threw away his weapon. The jury rejected defendant's argument that he had adequate provocation for the shooting. State v. Jones, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 881 (Tenn. Crim. App. Dec. 5, 2018).

Evidence was sufficient to convict defendant of two counts of attempted second degree murder because defendant knowingly fired at least four rounds into the tow truck containing the two victims; the evidence presented at trial established that defendant was not standing in front of the tow truck when he fired his weapon; the jury rightfully rejected defendant's argument that his actions were justified because he was in state of passion caused by the towing of his brother's truck; one victim was permanently paralyzed from the armpits down; and it was apparent from the record that the jury heard and rejected defendant's self-defense argument at trial. State v. Proffitt, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 901 (Tenn. Crim. App. Dec. 13, 2018).

Evidence was sufficient to support defendant's second-degree murder conviction because it showed that the night before the murder defendant had spent the night with another woman, when he returned to the victim's home she had thrown his clothes outside and told him to get out which angered defendant, he retrieved his gun and returned to the victim's apartment, they argued, and defendant shot the victim in the head. Tenn. v. Satterfield, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 17 (Tenn. Crim. App. Jan. 8, 2019).

Evidence was sufficient to support defendant's conviction of aggravated arson and other crimes because it showed that defendant, who had been drinking and using drugs, intended to set the loveseat on fire, as her boyfriend testified that she wanted him to leave, she poured lighter fluid on the chair he was sitting in before lighting the lighter fluid, and she knew her grandchildren were asleep in the house. Defendant's alleged belief that the fire on the loveseat had been extinguished before rekindling did not negate her culpability for setting the fire in the first place. State v. Dunavant, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 196 (Tenn. Crim. App. Mar. 28, 2019).

Evidence was sufficient to show that defendant had constructive possession of methamphetamine and marijuana because moments after the agent knocked at the door and was greeted by the occupant of the residence agents at the back of the house heard the flushing of the toilet and hurried movements, the occupant and defendant were the only people in the house leaving defendant as the person in possession of the drugs that were being flushed, numerous agents testified to locating scales in plain sight, agents located defendant's clothes and debit card in the house, and $2,100 was found on defendant's person. State v. Harris, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 453 (Tenn. Crim. App. July 29, 2019).

Evidence was sufficient to support defendant's convictions of possession of cocaine with the intent to sell and deliver and possession of illegal drug paraphernalia because it showed that he was found inside a residence where .32 grams of crack cocaine and a crack pipe were present, he was found in a bathroom with a digital scale commonly used for weighing drugs, and he later admitted to selling crack cocaine as a means of making money and to keeping a third of an ounce of cocaine with him at all times. State v. Ward, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 693 (Tenn. Crim. App. Oct. 25, 2019).

Evidence was sufficient to sustain a conviction of of attempted felony child neglect because defendant admitted to locking the victim in her bedroom at night and forcing her to urinate in a cooking pot, defendant admitted to removing the carpet in the victim's bedroom and leaving the tack strips exposed, a witness testified the condition of the victim's bedroom was noticeably worse than the other rooms in the house, the bedroom contained exposed wiring and mouse droppings, and the victim was dirty and “did not smell good.” State v. Smith, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 54 (Tenn. Crim. App. Jan. 31, 2020).

Evidence supported defendant's second degree murder conviction because codefendant brought a handgun to take money from the victim, an altercation occurred, defendant obtained the gun during the altercation, defendant pointed the gun at the victim and fired it multiple times, and the gunshot wounds resulted in the victim's death. Defendant acted with an awareness that defendant's conduct was reasonably certain to cause the victim's death. State v. Moore, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 352 (Tenn. Crim. App. May 15, 2020).

Evidence was sufficient to show that defendant had physical control over the methamphetamine and an intent to exercise control over it because a false-bottom can containing a substantial amount of methamphetamine was found wedged beneath the passenger seat in his vehicle and he was carrying a large amount of cash on his person. State v. Austin, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 695 (Tenn. Crim. App. Oct. 27, 2020).

Evidence was sufficient to convict defendant of second degree murder, and not voluntary manslaughter, as defendant committed a knowing killing rather than a killing due to adequate provocation because, after having sex with the victim, defendant followed the victim through the parking lot as he thought the victim had stolen his wallet; the victim confronted defendant with a knife; defendant punched the victim, and the victim dropped the knife; defendant then picked up the knife; he stabbed the victim in the neck, and then 20 more times; and he agreed that his response to the victim's aggression was not reasonable. State v. Gadsden, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 739 (Tenn. Crim. App. Nov. 19, 2020).

7. Jury Instructions.

In a prosecution for aggravated rape, statutory language required that “intentional,” “knowing,” or “reckless” all should have been charged to the jury as such elements related to “reckless” behavior favored the defense and did not affect the results of the trial. State v. Jones, 889 S.W.2d 225, 1994 Tenn. Crim. App. LEXIS 309 (Tenn. Crim. App. 1994), rehearing denied, — S.W.2d —, 1994 Tenn. Crim. App. LEXIS 371 (Tenn. Crim. App. June 14, 1994), appeal denied, — S.W.2d —, 1994 Tenn. LEXIS 297 (Tenn. Oct. 10, 1994), superseded by statute as stated in, State v. Woodcock, 922 S.W.2d 904, 1995 Tenn. Crim. App. LEXIS 982 (Tenn. Crim. App. 1995).

In a prosecution for aggravated assault, where the indictment charged a “knowing” assault, a jury instruction containing the mental element of “reckless” was not erroneous since “recklessly” is a lesser level of the mental element of “knowingly,” and if the state proved that defendant acted knowingly, it also would have proved that he acted recklessly. State v. Crowe, 914 S.W.2d 933, 1995 Tenn. Crim. App. LEXIS 623 (Tenn. Crim. App. 1995), appeal denied, — S.W.2d —, 1996 Tenn. LEXIS 43 (Tenn. Jan. 8, 1996).

Reasonable minds could accept ignorance or mistake of fact as a defense to premeditated first degree murder and counsel were deficient by failing to request a jury instruction on ignorance or mistake of fact where: (1) Petitioner testified that he believed he removed all of the bullets from the gun and that the gun fired as he was “fumbling” with it; and (2) Petitioner's theory at the trial was that he was mistaken in his belief that the gun was unloaded and that he did not intend to shoot the victim. Nesbit v. State, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 292 (Tenn. Crim. App. Mar. 28, 2013), aff'd, 452 S.W.3d 779, 2014 Tenn. LEXIS 917 (Tenn. Nov. 14, 2014).

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).

8. Willful.

Trial court did not err by holding the father in criminal contempt for returning the children two days late and failing to provide the mother with his new cell phone number for 11 days because his violations were willful. Renken v. Renken, — S.W.3d —, 2019 Tenn. App. LEXIS 92 (Tenn. Ct. App. Feb. 20, 2019).

Judgment holding the mother in criminal contempt was affirmed, as her failure to have the child in Ohio for the father's parenting time as per court order was voluntary and intentional; her failure in the time since learning of her travel restrictions in early October to make arrangements to satisfy her obligations under the order relative to the father's Thanksgiving visitation demonstrated a conscious and deliberate decision to disregard the order. In re Khrystchan D., — S.W.3d —, 2020 Tenn. App. LEXIS 297 (Tenn. Ct. App. June 26, 2020).

Part 4
Criminal Responsibility

39-11-401. Parties to offenses.

  1. A person is criminally responsible as a party to an offense, if the offense is committed by the person's own conduct, by the conduct of another for which the person is criminally responsible, or by both.
  2. Each party to an offense may be charged with commission of the offense.

Acts 1989, ch. 591, § 1.

Sentencing Commission Comments.

Sections 39-11-401 — 39-11-407, and 39-11-411 describe general principles used to assess the criminal liability of persons who act together to violate a criminal law. Sections 39-12-102 (solicitation) and 39-12-103 (criminal conspiracy) also are pertinent.

This section is a restatement of the principles of Tennessee common law which provide equal criminal liability for principals, accessories before the fact, and aiders and abettors. The revised code does not utilize these terms; instead, it provides that any person may be charged as a party if he or she is criminally responsible for the perpetration of the offense.

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

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 26.53.

Law Reviews.

State v. Carson: A Misguided Attempt to Retain the Natural and Probable Consequence Doctrine of Accomplice Liability Under the Current Tennessee Code, 29 U. Mem. L. Rev. 273 (1998).

The Death Penalty in Tennessee — Recent Developments (Roy B. Morgan, Jr.), 8 Mem. St. U.L. Rev. 107 (1978).

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).

Evidence was sufficient to corroborate a codefendant's testimony as an accomplice, as the victim's testimony established a crime had been committed independent of the codefendant's testimony, the evidence corroborated codefendant's testimony implicating third defendant, and third defendant's testimony admitting she was in the van while traveling and fleeing from the victim's home corroborated codefendant's testimony regarding her presence. State v. Morales, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 619 (Tenn. Crim. App. Sept. 18, 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).

39-11-402. Criminal responsibility for conduct of another.

A person is criminally responsible for an offense committed by the conduct of another, if:

  1. Acting with the culpability required for the offense, the person causes or aids an innocent or irresponsible person to engage in conduct prohibited by the definition of the offense;
  2. Acting with intent to promote or assist the commission of the offense, or to benefit in the proceeds or results of the offense, the person solicits, directs, aids, or attempts to aid another person to commit the offense; or
  3. Having a duty imposed by law or voluntarily undertaken to prevent commission of the offense and acting with intent to benefit in the proceeds or results of the offense, or to promote or assist its commission, the person fails to make a reasonable effort to prevent commission of the offense.

Acts 1989, ch. 591, § 1.

Sentencing Commission Comments.

This section establishes three conditions under which a person may be criminally liable for the conduct of another. Subdivision (1) codifies Tennessee common law regarding criminal responsibility for the use of an innocent or irresponsible person to commit an offense.

Subdivision (2) sets forth the conduct of defendants formerly known as accessories before the fact and aiders and abettors.

Subdivision (3) sets forth what criminal liability is imposed upon offenders who neglect their duty with intent to benefit from, promote, or assist in the commission of an offense.

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. Culpable mental states, §§ 39-11-106, 39-11-301, 39-11-302.

Incapacity, irresponsibility or immunity of party to solicitation, attempt or conspiracy, defenses, § 39-12-105.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 26.51, 26.53, 26.54.

Tennessee Jurisprudence, 1 Tenn. Juris., Accomplice and Accessories, § 7; 6 Tenn. Juris., Conspiracy, § 2; 6 Tenn. Juris., Compounding Offenses, § 3; 16 Tenn. Juris., Intoxicating Liquors, §§ 15, 16.

Law Reviews.

Accessory Liability: Acquittal of the Principal Bars Conviction of the Accessory Before the Fact — The Common Law Lives in Tennessee, 15 Mem. St. U.L. Rev. 87 (1984).

State v. Carson: A Misguided Attempt to Retain the Natural and Probable Consequence Doctrine of Accomplice Liability Under the Current Tennessee Code, 29 U. Mem. L. Rev. 273 (1998).

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).

Evidence was sufficient to find defendant guilty of especially aggravated robbery as a principle offender or under a theory of criminal responsibility because defendant and his accomplices pointed their guns at the victim; the victim gave them his wallet, and one of them took the victim's money from the victim's hand and also demanded the victim's cell phone; the victim punched the individual when he reached for the victim's cell phone, and one of the accomplices ran up to the victim and shot him in the head; and the victim suffered serious bodily injury, and later died from his wound. State v. Lumpkin, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 809 (Tenn. Crim. App. Dec. 23, 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).

39-11-403. Criminal responsibility for facilitation of felony.

  1. A person is criminally responsible for the facilitation of a felony, if, knowing that another intends to commit a specific felony, but without the intent required for criminal responsibility under § 39-11-402(2), the person knowingly furnishes substantial assistance in the commission of the felony.
  2. The facilitation of the commission of a felony is an offense of the class next below the felony facilitated by the person so charged.

Acts 1989, ch. 591, § 1.

Sentencing Commission Comments.

This section recognizes a lesser degree of criminal responsibility than that of a party under § 39-11-401. The section states a theory of vicarious responsibility because it applies to a person who facilitates criminal conduct of another by knowingly furnishing substantial assistance to the perpetrator of a felony, but who lacks the intent to promote or assist in, or benefit from, the felony's commission.

A defendant charged as a party may be found guilty of facilitation as a lesser included offense if the defendant's degree of complicity is insufficient to warrant conviction as a party. The lesser punishment is appropriate because the offender, though facilitating the offense, lacked the intent to promote, assist or benefit from the offense.

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.

Penalties for felonies, § 40-35-111.

Penalty for felony where punishment was not prescribed, § 39-11-113.

Law Reviews.

State v. Carson: A Misguided Attempt to Retain the Natural and Probable Consequence Doctrine of Accomplice Liability Under the Current Tennessee Code, 29 U. Mem. L. Rev. 273 (1998).

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).

39-11-404. Corporate liability.

  1. A corporation commits an offense when:
    1. The conduct constituting the offense consists of an intentional failure to discharge a specific duty imposed upon corporations by criminal law;
    2. The conduct constituting the offense is engaged in, authorized, commanded or knowingly tolerated by the board of directors or by a high managerial agent acting within the scope of the agent's employment on behalf of the corporation; or
    3. The conduct constituting the offense is engaged in by an agent of the corporation acting within the scope of the agent's employment and on behalf of the corporation, and:
      1. The offense is a misdemeanor; or
      2. The offense is one defined by statute which indicates a legislative intent to impose criminal liability on a corporation.
  2. The following definitions apply in this part, unless the context requires otherwise:
    1. “Agent” means any officer, director, servant or employee of the corporation or any other person authorized to act on behalf of the corporation; and
    2. “High managerial agent” means an officer of a corporation or any other agent of a corporation who has duties or such responsibility that the agent's conduct reasonably may be inferred to represent the policy of the corporation.

Acts 1989, ch. 591, § 1.

Sentencing Commission Comments.

This section specifically acknowledges corporate criminal responsibility. The commission recognizes the need to control and punish corporate involvement in economic offenses, including tax and security fraud, pollution, corporate support of pornography, gambling and other offenses.

A corporation is made liable in three situations. Subdivision (a)(1) creates criminal liability for the corporation's intentional failure to discharge a legal duty imposed by criminal law.

Subdivision (a)(2) provides liability when either the board of directors or a high managerial agent (acting for the corporation within the scope of the agent's employment) authorizes or knowingly tolerates criminal conduct.

Subdivision (a)(3) holds the corporation liable for its agent's conduct if the agent was acting for the corporation and within the scope of employment, and either the offense was minor or the statute clearly makes the corporation liable for the agent's actions.

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

39-11-405. Individual liability for corporate conduct.

A person is criminally liable for conduct constituting an offense that the person performs or causes to be performed in the name of or on behalf of a corporation to the same extent as if the conduct were performed in the person's own name or behalf.

Acts 1989, ch. 591, § 1.

Sentencing Commission Comments.

This section makes it clear that a person who commits an offense while acting for a corporation can be personally liable for the offense if he or she would have been liable if acting in his or her own behalf. Thus, the high managerial agent whose actions constitute an offense against the corporation under § 39-11-404 can also be personally responsible for the misdeeds.

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.

“Corporate Liability, Risk Shifting, and the Paradox of Compliance”, 52 Vand. L. Rev. 1343 (1999).

39-11-406. Affirmative defense to criminal responsibility of a corporation.

  1. It is an affirmative defense to prosecution of a corporation under § 39-11-404(a)(1) or (3) or § 39-11-405, which must be proven by a preponderance of the evidence, that the high managerial agent having supervisory responsibility over the subject matter of the offense employed due diligence to prevent its commission.
  2. Subsection (a) does not apply if it is plainly inconsistent with the legislative purpose expressed in the law defining the particular offense.

Acts 1989, ch. 591, § 1.

Sentencing Commission Comments.

This section is provided to encourage due diligence on the part of corporate personnel to prevent criminal conduct by employees. Subsection (b) states that the due diligence defense is not applicable if the defense is inconsistent with the clear legislative purposes in the applicable offense.

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. Burden of proof, title 39, ch. 11, part 2.

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).

39-11-407. Defenses excluded.

In a prosecution in which a person's criminal responsibility is based upon the conduct of another, the person may be convicted on proof of commission of the offense and that the person was a party to or facilitated its commission, and it is no defense that:

  1. The other belongs to a class of persons who by definition of the offense is legally incapable of committing the offense in an individual capacity; or
  2. 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.

Acts 1989, ch. 591, § 1.

Sentencing Commission Comments.

This section reflects a policy determination that, in a case involving multiple offenders, a conviction should be sustained where there is sufficient evidence to support it, regardless of whether there is a failure of proof in another case involving other people. Thus, the defendant may be convicted whether the other parties to the offense are convicted, acquitted, or incapable of criminal responsibility.

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. Affirmative defense, § 39-11-204.

General defenses, title 39, ch. 11, part 5.

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).

39-11-408 — 39-11-410. [Reserved.]

  1. A person is an accessory after the fact who, after the commission of a felony, with knowledge or reasonable ground to believe that the offender has committed the felony, and with the intent to hinder the arrest, trial, conviction or punishment of the offender:
    1. Harbors or conceals the offender;
    2. Provides or aids in providing the offender with any means of avoiding arrest, trial, conviction or punishment; or
    3. Warns the offender of impending apprehension or discovery.
  2. This section shall have no application to an attorney providing legal services as required or authorized by law.
  3. Accessory after the fact is a Class E felony.

Acts 1989, ch. 591, § 1; 1994, ch. 978, § 4; 1995, ch. 281, § 1.

Sentencing Commission Comments.

This section is similar to prior code §§ 39-1-306 and 39-1-307. While recognizing that all citizens, including families of criminal offenders, must work together to reduce crime, this section retains a portion of the traditional defense for close family members who merely harbor or conceal an offender. Under former subsection (b) [deleted in 1995], the defense was limited; any family member actively assisting an offender to escape or avoid prosecution or its consequences is beyond this defense. In 1994, this defense was abolished for family members who harbor or conceal offenders who commit the offense of aggravated child abuse of a child age 6 or less.

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.

Penalty for Class E felony, § 40-35-111.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 26.54.

Law Reviews.

Criminal Law — Accessory After the Fact — When Felony is Complete, 1 Vand. L. Rev. 127 (1947-1948).

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).

Part 5
General Defenses

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).

NOTES TO DECISIONS

1. Constitutionality.

The clear and convincing standard in T.C.A. § 39-11-501(a) is constitutional. State v. Perry, 13 S.W.3d 724, 1999 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. 1999).

This post-1995 version of T.C.A. § 39-11-501, which is patterned closely after the federal insanity defense statute, is constitutional. State v. Holder, 15 S.W.3d 905, 1999 Tenn. Crim. App. LEXIS 961 (Tenn. Crim. App. 1999), review or rehearing denied, — S.W.3d —, 2000 Tenn. LEXIS 133 (Tenn. Mar. 13, 2000).

2. Construction.

T.C.A. § 39-11-501(c) must be construed narrowly because of the interests at stake. State v. Perry, 13 S.W.3d 724, 1999 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. 1999).

Although T.C.A. § 39-11-501(c) precludes an expert from testifying that a defendant was, in fact, legally “insane” at the time of the commission of the offense, the expert may testify that the defendant suffered from a severe mental disease or defect. State v. Perry, 13 S.W.3d 724, 1999 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. 1999).

Under T.C.A. § 39-11-501(c), an expert may state whether the defendant could have appreciated the nature or wrongfulness of his conduct at the time of the offense; however, T.C.A. § 39-11-501(c) prevents the expert from stating that the severe mental disease or defect operated to prevent the defendant from appreciating the nature or wrongfulness of his conduct. State v. Perry, 13 S.W.3d 724, 1999 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. 1999).

3. Application.

Where defendant denied having mental illness problems on a gun purchase application a few weeks before the shooting, and knew why the police were arresting the defendant when they came to the defendant's home, the jury's rejection of the defendant's insanity defense was reasonable. State v. Flake, 88 S.W.3d 540, 2002 Tenn. LEXIS 375 (Tenn. 2002), rehearing denied, 88 S.W.3d 540, 2002 Tenn. LEXIS 458 (Tenn. 2002).

In a two-count premeditated first degree murder case, the appellate court's modification of the jury's guilty verdict to not guilty by reason of insanity was reversed as a reasonable trier of fact could have found defendant failed to show by clear and convincing evidence that, as a result of a severe mental illness or defect, he was unable to appreciate the wrongfulness of his actions where the evidence showed defendant was not suffering from a severe mental illness at the time of the offense, defendant's proof that he suffered from a severe mental illness was countered by testimony elicited on cross-examination suggesting that it was also plausible that defendant was malingering, and the record contained proof suggesting that defendant realized his conduct was wrongful. State v. Flake, 114 S.W.3d 487, 2003 Tenn. LEXIS 696 (Tenn. Apr. 10, 2003).

The amendment of T.C.A. § 39-11-501(c) in 1995, which operated to prohibit expert testimony on the ultimate issue of sanity, did not apply to defendant's offenses because they were committed before the amendment's effective date of July 1, 1995. State v. Thompson, 151 S.W.3d 434, 2004 Tenn. LEXIS 995 (Tenn. 2004).

Evidence was insufficient to sustain an insanity defense where neither of defendant's experts testified unequivocally that he was insane at the time of the crimes, his physician stated that on the day before the shooting defendant appeared stable, there was evidence that some of the psychological test results were invalid because defendant had fabricated his symptoms, and the state offered lay testimony which established that defendant did not have mental health problems requiring treatment for the four years preceding the shooting. State v. Thompson, 151 S.W.3d 434, 2004 Tenn. LEXIS 995 (Tenn. 2004).

Defendant failed to show insanity in his abuse of a corpse conviction because a doctor concluded that defendant never suffered from a severe mental disease or defect. Moreover, the evidence established that defendant went to methodical lengths to conceal the victim's death and dismemberment, telling her family that she left with a friend and forging a Christmas card to her sister. State v. Climer, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 914 (Tenn. Crim. App. Dec. 14, 2011), modified, 400 S.W.3d 537, 2013 Tenn. LEXIS 354 (Tenn. Apr. 19, 2013).

Jury reasonably could have found that defendant failed to establish that he was insane at the time of the offenses,as the evidence showed that defendant's delusions were not well formed and he was not out of control delusionally, in committing the offense defendant did not believe he was engaging in entirely different conduct, cleaning up the crime scene showed that defendant understood what he had done was wrong, and defendant was calm and able to communicate when he arrived at the jail. State v. Baker, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 649 (Tenn. Crim. App. June 26, 2018).

4. Burden of Proof.

Although the law presumes sanity, if the evidence raises a reasonable doubt as to the defendant's sanity, the burden of proof falls upon the state to establish the defendant's sanity beyond a reasonable doubt. State v. Jackson, 890 S.W.2d 436, 1994 Tenn. LEXIS 340 (Tenn. 1994).

In order to prove sanity the state must prove either: (1) The defendant was not “suffering from a mental illness at the time of the commission of the crime,”; or (2) The illness proved did not “prevent his knowing the wrongfulness of his act” and did not “render him substantially incapable of conforming his conduct to the requirements of the law he is charged with violating.” State v. Jackson, 890 S.W.2d 436, 1994 Tenn. LEXIS 340 (Tenn. 1994).

In attempting to meet its burden of proving sanity, where the state's evidence was consistent with sanity, it still did not establish sanity because it was not inconsistent with insanity; thus, the state failed as a matter of law to prove that the defendant while suffering from a mental illness was capable of appreciating the wrongfulness of his conduct and conforming his conduct to the requirements of the law. State v. Jackson, 890 S.W.2d 436, 1994 Tenn. LEXIS 340 (Tenn. 1994).

The evidence relied upon by the state to prove that the defendant was sane was not sufficient; the state's burden may be met by expert testimony, lay testimony based on a proper foundation, and evidence of conduct consistent with sanity and inconsistent with insanity. In this case there was no expert testimony in support of the defendant's sanity. State v. Sparks, 891 S.W.2d 607, 1995 Tenn. LEXIS 1 (Tenn. 1995).

The burden of proof is on the defendant to establish insanity by clear and convincing evidence, particularly after the 1995 amendment of T.C.A. § 39-11-501. State v. Holder, 15 S.W.3d 905, 1999 Tenn. Crim. App. LEXIS 961 (Tenn. Crim. App. 1999), review or rehearing denied, — S.W.3d —, 2000 Tenn. LEXIS 133 (Tenn. Mar. 13, 2000).

Proper standard of review, which requires proof that the defendant was insane at the time the defendant committed the crime by clear and convincing evidence, is whether, considering the evidence in the light most favorable to the prosecution, no reasonable trier of fact could have failed to find that the defendant's insanity at the time of the offense was established by clear and convincing evidence. State v. Flake, 88 S.W.3d 540, 2002 Tenn. LEXIS 375 (Tenn. 2002), rehearing denied, 88 S.W.3d 540, 2002 Tenn. LEXIS 458 (Tenn. 2002).

5. Mental Disease or Defect.

It may not be assumed that a defendant suffering from paranoid schizophrenia accompanied by delusions is necessarily incapable of premeditated murder. State v. Holder, 15 S.W.3d 905, 1999 Tenn. Crim. App. LEXIS 961 (Tenn. Crim. App. 1999), review or rehearing denied, — S.W.3d —, 2000 Tenn. LEXIS 133 (Tenn. Mar. 13, 2000).

6. Diminished Capacity.

“Diminished capacity” is a defendant's presentation of expert, psychiatric evidence aimed at negating the requisite culpable mental state. State v. Perry, 13 S.W.3d 724, 1999 Tenn. Crim. App. LEXIS 396 (Tenn. Crim. App. 1999).

7. Inability to Appreciate Wrongfulness.

In a vehicular homicide case, defendant proved by clear and convincing evidence that she was insane at the time of the wreck where experts testified that defendant was delusional and suffered from a severe mental disease, bi-polar mixed, and as a result, did not appreciate the nature or wrongfulness of her acts; an expert believed that defendant's delusions around the time of the wreck, that J.F.K. was alive and behind 9/11, and that she was pregnant with a “world leader”, were triggered by the September 11th attacks, defendant was “out of touch with reality,” and she believed that her car would fly if she pulled back on the steering wheel. State v. Kennedy, 152 S.W.3d 16, 2004 Tenn. Crim. App. LEXIS 508 (Tenn. Crim. App. 2004), appeal denied, — S.W.3d —, 2004 Tenn. LEXIS 939 (Tenn. Nov. 8, 2004).

8. Rejection of Defense.

Record supported the jury's rejection of defendant's insanity defense because an expert's testimony, along with the evidence regarding defendant's behavior before and after the murder, was sufficient to rebut another expert's opinion that defendant did not understand the nature and wrongfulness of his conduct. State v. Colvett, 481 S.W.3d 172, 2014 Tenn. Crim. App. LEXIS 1142 (Tenn. Crim. App. Dec. 19, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 302 (Tenn. Apr. 10, 2015).

Evidence was sufficient to convict defendant of one count of attempted first degree premeditated murder, two counts of aggravated assault, and one count of domestic assault because the record supported the jury's rejection of the affirmative defense of insanity because, although the State's expert witness and defendant's expert witness disagreed, the State's expert witness opined that the defendant could appreciate both the nature and wrongfulness of his actions when he attacked the victim, and his opinion was corroborated by substantial other proof offered by the State; and the victim testified that defendant calmly told her he was going to kill her before beating her and that he knew exactly what he was doing during the attack. State v. Halliburton, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 907 (Tenn. Crim. App. Dec. 6, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 219 (Tenn. Apr. 13, 2017).

It was reasonable for the jury to reject defendant's insanity defense because a physician testified that even though he had a severe mental illness, he was able to appreciate the wrongfulness of his actions, as he selected the people he was going to shoot and chose not to shoot others, he fled the scene and hid so well from the police that they were unable to find him, he fled to another state, called family members to come get him, and had a gun concealed on his person on the day of the shootings when he did not normally carry a gun. State v. Woodley, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 151 (Tenn. Crim. App. Mar. 11, 2019).

9. Jury Instructions.

Even though the trial court erred by relying on a doctor's testimony to reject defendant's request for an instruction on insanity as an affirmative defense, the error was harmless because defendant's efforts to conceal his guilt indicated that he was aware of the wrongfulness of his conduct, and the trial court did provide a jury instruction on the issue of diminished capacity which the jury rejected. State v. Parker, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 127 (Tenn. Crim. App. Feb. 25, 2019).

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).

NOTES TO DECISIONS

1. Failure to Raise Defense.

Defendant was not entitled to an instruction on the defense of mistake of fact, where it was not “fairly raised” by the evidence or asserted by the accused when he was tried for the offense of which he was convicted. State v. McPherson, 882 S.W.2d 365, 1994 Tenn. Crim. App. LEXIS 109 (Tenn. Crim. App. 1994).

Reasonable minds could accept ignorance or mistake of fact as a defense to premeditated first degree murder and counsel were deficient by failing to request a jury instruction on ignorance or mistake of fact where: (1) Petitioner testified that he believed he removed all of the bullets from the gun and that the gun fired as he was “fumbling” with it; and (2) Petitioner's theory at the trial was that he was mistaken in his belief that the gun was unloaded and that he did not intend to shoot the victim. Nesbit v. State, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 292 (Tenn. Crim. App. Mar. 28, 2013), aff'd, 452 S.W.3d 779, 2014 Tenn. LEXIS 917 (Tenn. Nov. 14, 2014).

2. Instructions.

Where a defendant's ignorance or mistake of fact constitutes a defense to the offense charged, he may still be convicted of the offense for which he would be guilty if the facts were as the defendant believed, and therefore if the defendant had believed the child to be 16 at the time they first had intercourse, a jury instruction — and, ipso facto, a conviction — on statutory rape was appropriate. State v. Ealey, 959 S.W.2d 605, 1997 Tenn. Crim. App. LEXIS 563 (Tenn. Crim. App. 1997).

Defendant was not entitled to an instruction on mistake of fact; defendant admitted he just fired his gun not knowing it was police lawfully executing a warrant, and if the jury believed him, there would be no culpable mental state to negate. Even if the jury believed defendant fired at police because he mistakenly thought they were intruders, he would still not have been entitled to a mistake of fact defense instruction because his beliefs, even if reasonable, would not have justified his actions. State v. Campbell, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 294 (Tenn. Crim. App. Apr. 24, 2020).

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).

NOTES TO DECISIONS

1. Mental State.

Expert testimony bearing on issue of whether defendant was intoxicated was relevant evidence and properly admissible because questions of whether defendant was under the influence of PCP at the time of the offense, and whether his intoxication had any bearing on his ability to premeditate and form the intent to kill were questions appropriate for the jury's consideration; thus, trial court erred by revoking funds for defendant to hire an expert effectively prevented him from presenting the defense of voluntary intoxication at his trial because this was critical to defendant's defense. State v. Vaughn, 279 S.W.3d 584, 2008 Tenn. Crim. App. LEXIS 442 (Tenn. Crim. App. June 16, 2008).

None of the evidence demonstrated that defendant's alleged intoxication was such that, hours later, it deprived him of the mental capacity to form the culpable mental state required for premeditated murder or attempted premeditated murder. State v. Hatcher, 310 S.W.3d 788, 2010 Tenn. LEXIS 419 (Tenn. May 4, 2010).

Evidence was sufficient to convict defendant of first degree murder because the jury could infer that defendant traveled about one-fourth of one mile on foot from a church to the victim's house, where he placed a barrel under a window, removed the screen, entered the house through the open window, shot the victim in the head with a .22 caliber weapon, left through the front door, went to his mother's house, and waited until the body had been discovered the next day before initiating any contact with the authorities; and because defendant's actions were inconsistent with a conclusion he was incapable, due to intoxication, of premeditating the victim's killing. State v. Rayfield, 507 S.W.3d 682, 2015 Tenn. Crim. App. LEXIS 780 (Tenn. Crim. App. Sept. 28, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 146 (Tenn. Feb. 18, 2016).

Destruction of defendant's blood sample did not violate defendant's due process rights because the State did not have a duty to preserve the blood past the date it was destroyed, as blood could not be preserved indefinitely, it had been preserved for over one year, and defendant failed in her obligation to secure the sample. The presence of the prescription drug in defendant's blood was not apparently exculpatory because it would not have been relevant to negating any mental state as DUI was a strict liability offense and defendant, who voluntarily ingested alcohol and the prescription drug, could not claim that her subsequent actions were involuntary. State v. Blair, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 863 (Tenn. Crim. App. Nov. 16, 2016).

2. Rejection of Defense.

Defendant claimed he was so intoxicated that he was incapable of premeditation and that he should have been convicted of voluntary manslaughter, but there was evidence to the contrary regarding his intoxication, and by the jury's verdict of guilty to the charge of first degree murder, the jury necessarily rejected the claim that defendant acted in a state of passion produced by adequate provocation sufficient to lead a reasonable person to act in an irrational manner. State v. Hudgins, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 612 (Tenn. Crim. App. Aug. 18, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 753 (Tenn. Oct. 19, 2016).

3. Driving While Intoxicated.

Because driving under the influence of a drug or intoxicant is a strict liability offense, a defendant whose intoxication results from knowingly ingesting a prescription drug and alcohol cannot use the involuntary intoxication defense under T.C.A. § 39-11-503. State v. Kain, 24 S.W.3d 816, 2000 Tenn. Crim. App. LEXIS 130 (Tenn. Crim. App. 2000), review or rehearing denied, — S.W.3d —, 2000 Tenn. LEXIS 405 (Tenn. July 17, 2000).

4. Jury Instructions.

Since the culpable mental state of a person who aids and abets another in a criminal offense is intentional, the trial court should have included an instruction of intoxication as it pertained to the facts of the case. State v. Williamson, 919 S.W.2d 69, 1995 Tenn. Crim. App. LEXIS 989 (Tenn. Crim. App. 1995).

The court allowed evidence of defendant's use of cocaine and properly instructed the jury that a defendant's voluntary intoxication could negate a culpable mental state, in accordance with T.C.A. § 39-11-503(a). State v. Morris, 24 S.W.3d 788, 2000 Tenn. LEXIS 391 (Tenn. 2000), cert. denied, Morris v. Tennessee, 531 U.S. 1082, 121 S. Ct. 786, 148 L. Ed. 2d 682, 2001 U.S. LEXIS 301 (2001), cert. denied, Brown v. Utah, 148 L. Ed. 2d 676, 121 S. Ct. 778, 531 U.S. 1079, 2001 U.S. LEXIS 250 (2001).

Defendant did not present any proof that the marijuana he smoked impacted his ability to form the mental state required for first degree murder, and he testified in detail about what happened and that he shot the victim for raping his girlfriend; thus, the trial court did not err by refusing to give the instruction regarding voluntary intoxication. State v. Reynolds, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 174 (Tenn. Crim. App. Mar. 9, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 496 (Tenn. Aug. 16, 2017).

Trial court erred in its determination that the instruction on intoxication was proper because defendant did not testify that he was intoxicated to the extent that he was unaware of his conduct; no evidence showed that intoxication affected his capacity to form the culpable mental state required to commit second degree murder; an agent and an investigator testified that defendant did not appear intoxicated; and defendant told the agent that he was not intoxicated. Therefore, the trial court's inadvertence in failing to give the instruction was not erroneous. State v. Simpson, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 173 (Tenn. Crim. App. Mar. 18, 2019).

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).

NOTES TO DECISIONS

1. Construction.

Neither duress nor necessity are affirmative defenses; both are “defenses” and, if admissible evidence fairly raises either defense, the trial court must submit the defense to the jury and the prosecution must prove beyond a reasonable doubt that the defense does not apply. State v. Culp, 900 S.W.2d 707, 1994 Tenn. Crim. App. LEXIS 858 (Tenn. Crim. App. 1994).

2. Instructions.

Trial court's failure to instruct the jury on the defense of duress under T.C.A. § 39-11-504 did not constitute plain error under former Tenn. R. Crim. P. 52(b) (see now T.R.A.P. 36(b)) even though the evidence, including defendant's testimony, may have been sufficient to warrant such an instruction, because duress was never discussed as a theory of the defense and defendant expressly declined a jury instruction on self-defense, a defense closely related to duress. State v. Bledsoe, 226 S.W.3d 349, 2007 Tenn. LEXIS 368 (Tenn. Apr. 26, 2007).

Defense of duress failed because there was no proof that defendant's brother threatened defendant in order to achieve his assistance in the attack upon the victims. State v. Hatcher, 310 S.W.3d 788, 2010 Tenn. LEXIS 419 (Tenn. May 4, 2010).

Post-conviction court properly dismissed petitioner's application for post-conviction relief because petitioner failed to prove that trial counsel's failure to request a jury instruction on duress was below an objective standard of reasonableness under prevailing professional norms; defense of duress would clearly have been inapplicable to petitioner's charge of first degree murder because the urgency of harm to petitioner would not have outweighed the harm to the deceased victim. Hendricks v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 651 (Tenn. Crim. App. July 26, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 810 (Tenn. Nov. 16, 2017).

Trial court properly refused to instruct the jury on duress and defense of a third person with regard to the charge of the attempted first degree premeditated murder because defendant was not charged with that offense for shooting the victim in a club when the victim allegedly pulled a gun on defendants'  sibling as defendant allegedly shot the victim in the parking lot after pursuing the victim. By that time, defendant's brother was no longer in imminent danger of death or serious bodily injury by the victim. State v. Pettis, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 314 (Tenn. Crim. App. May 17, 2019).

Trial court did not breach a clear and unequivocal rule of law by declining to give a jury instruction on the defense of duress because the danger of death could not reasonably outweigh the harm of causing a death; therefore, duress in a homicide case could not be fairly raised by the proof, regardless of whether defendant was being threatened at the time he shot the victim. State v. Kelso, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 316 (Tenn. Crim. App. May 4, 2020).

3. Evidence.

Defendant's petition for post-conviction relief alleging ineffective assistance of counsel was properly denied as trial counsel's performance was not deficient for failing to obtain an expert witness to testify on the defense of duress because defendant failed to produce an expert witness on duress to testify at the post-conviction hearing or to introduce evidence on what an expert witness might have presented and how it would have aided his defense. Mims v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 127 (Tenn. Crim. App. Feb. 24, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 375 (Tenn. June 9, 2017).

Trial counsel's performance was not deficient by failing to request jury instructions on the defenses of duress and necessity because the defenses were not raised by the proof at trial. Counsel researched the possibility of arguing the defenses of necessity or duress at trial, but was unable to corroborate defendant's story, while abandoned this theory of the case when defendant informed counsel that defendant had never entered the building that was vandalized and burglarized and by testifying to living in a hotel at the time of the offense. Walton v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 363 (Tenn. Crim. App. May 10, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 601 (Tenn. Sept. 22, 2017).

State met its burden of proof regarding defendant's defense of duress because the record made clear that defendant walked into the bedroom on his own and received oral sex from the victim while they were the only two in the room and no evidence existed to suggest that defendant was forced or threatened into entering the bedroom by a co-defendant. 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).

State met its burden of proof regarding defendant's defense of duress because no testimony existed indicating that a co-defendant pointed a gun at defendant during the rape or robbery of the victims, the three victims testified that the men took their cell phones along with a laptop and two TV's, and two co-defendants testified that defendant took a TV as they exited the apartment, absent any threats from the co-defendant. 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).

There was no error in the rulings related to the defense of duress because the proffered evidence describing the culture of the football team was not relevant to the defense of duress and the defense was discounted by several witnesses at trial. State v. Banks, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 626 (Tenn. Crim. App. Oct. 4, 2019), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 181 (Tenn. Mar. 26, 2020).

Jury could have rejected his defense of duress because it could have determined that by agreeing to come to Nashville for a job with the co-defendant, who defendant knew had a violent past, and staying with him for several days that he did not have a well-grounded apprehension of death or serious bodily injury, and based on defendant's own testimony the jury could have determined that he had many opportunities to escape and he armed was during the offense. State v. Wyche, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 712 (Tenn. Crim. App. Nov. 7, 2019).

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).

NOTES TO DECISIONS

1. Applicability.

By abolishing common law defenses, the 1989 Criminal Code superseded the definition of entrapment as announced in State v. Jones, 598 S.W.2d 209, 1980 Tenn. LEXIS 437 (Tenn. 1980), including the solicitation exception, and replaced it with T.C.A. § 39-11-505; thus, the defense of entrapment applied to the crime of solicitation to commit murder. State v. Latham, 910 S.W.2d 892, 1995 Tenn. Crim. App. LEXIS 247 (Tenn. Crim. App. 1995).

Entrapment defense is not a matter of law or right based solely upon the fact that a state agent furnishes contraband to a defendant by means of sale or delivery; the fact that the state furnished the contraband is a point of evidentiary value only. State v. Blackmon, 78 S.W.3d 322, 2001 Tenn. Crim. App. LEXIS 895 (Tenn. Crim. App. 2001), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 611 (Tenn. June 30, 2003).

Where defendant was charged with possession of cocaine with intent to sell after negotiating a cocaine transaction with an undercover detective and paying for the cocaine, the trial court properly refused defendant's request for a jury instruction on entrapment, as it was clear that defendant was predisposed to commit the crime. State v. Blackmon, 78 S.W.3d 322, 2001 Tenn. Crim. App. LEXIS 895 (Tenn. Crim. App. 2001), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 611 (Tenn. June 30, 2003).

Defense of “sentencing entrapment” is not recognized in Tennessee. State v. Blackmon, 78 S.W.3d 322, 2001 Tenn. Crim. App. LEXIS 895 (Tenn. Crim. App. 2001), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 611 (Tenn. June 30, 2003).

Because the record did not show that petitioner informed counsel of the factual basis for asserting entrapment, he had not demonstrated deficiency in counsel's failure to file a pretrial notice; furthermore, petitioner could not establish a reasonable probability that a properly preserved entrapment defense would have changed the outcome of trial, as he did not accidentally and unexpectedly find rocks of crack cocaine in his pocket and then give them to law enforcement only because he was persuaded to do so. Jamison v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 773 (Tenn. Crim. App. July 16, 2018).

2. Evidence.

In a prosecution for sexual battery by means of fraud, where the victim reasonably relied upon a belief that defendant's touching was for medical purposes, his allowing the touching would not constitute such a consent that would make the contact lawful so as to preclude a conviction. State v. Tizard, 897 S.W.2d 732, 1994 Tenn. Crim. App. LEXIS 750 (Tenn. Crim. App. 1994).

Expert testimony about defendant's susceptibility to inducement, proffered to establish an entrapment defense, was admissible even though it embraced an ultimate issue to be decided by the trier of fact. State v. Shuck, 953 S.W.2d 662, 1997 Tenn. LEXIS 487, 70 A.L.R.5th 743 (Tenn. 1997).

Evidence was sufficient for the jury to reject defendant's defense of entrapment, as defendant agreed to bring cocaine to a trailer on three separate occasions, and during one of the three transactions, defendant urged two individuals to purchase a larger amount of cocaine from him the next time. State v. Keys, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 84 (Tenn. Crim. App. Jan. 29, 2014), appeal denied, — S.W.3d —, 2014 Tenn. LEXIS 493 (Tenn. June 20, 2014), cert. denied, Keys v. Tennessee, 190 L. Ed. 2d 345, 135 S. Ct. 459, — U.S. —, 2014 U.S. LEXIS 7281 (U.S. 2014).

Circuit court properly denied defendant's petition for post-conviction relief because trial counsel's background search of a confidential informant's criminal history was more than reasonable and counsel was not ineffective for failing to raise the defense of entrapment where the informant testified at trial that it was defendant's idea, not his, to conduct an exchange of drugs for guns at the informant's mobile trailer, which happened to be within a protected school zone. Clanton v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 211 (Tenn. Crim. App. Mar. 19, 2018).

Part 6
Justification Excluding Criminal Responsibility

39-11-601. Justification a defense.

It is a defense to prosecution that the conduct of the person is justified under this part.

Acts 1989, ch. 591, § 1.

Sentencing Commission Comments.

This part enunciates the various principles of Tennessee law which excuse or justify otherwise unlawful conduct. Justification as a defense is consistent with Tennessee case law. See May v. State, 220 Tenn. 541, 420 S.W.2d 647 (1967).

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. General defenses, title 39, ch. 11, part 5.

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).

NOTES TO DECISIONS

1. Duress or Necessity.

Neither duress nor necessity are affirmative defenses; both are “defenses” and, if admissible evidence fairly raises either defense, the trial court must submit the defense to the jury and the prosecution must prove beyond a reasonable doubt that the defense does not apply. State v. Culp, 900 S.W.2d 707, 1994 Tenn. Crim. App. LEXIS 858 (Tenn. Crim. App. 1994).

2. Self-Defense.

Instruction that the victim was acting in defense of his residence in order to justify his conduct was error since the plain language of T.C.A. § 39-11-611 is that self-defense may be utilized in defense of the prosecution, not as justification for a victim's conduct. State v. Belser, 945 S.W.2d 776, 1996 Tenn. Crim. App. LEXIS 568 (Tenn. Crim. App. 1996).

The state has the burden of proving beyond a reasonable doubt that defendant did not act in self-defense. State v. Belser, 945 S.W.2d 776, 1996 Tenn. Crim. App. LEXIS 568 (Tenn. Crim. App. 1996).

Defendant's recitation about engaging in a struggle with victim over victim's gun rather than retreating negated the defendant's theory of any attempt to abandon the burglary; thus, the trial court was correct in finding that the evidence did not support the requested instruction on self defense. State v. Sims, 45 S.W.3d 1, 2001 Tenn. LEXIS 349 (Tenn. 2001), cert. denied, Sims v. Tennessee, 534 U.S. 956, 122 S. Ct. 357, 151 L. Ed. 2d 270, 2001 U.S. LEXIS 9558 (2001).

Evidence was sufficient to support defendant's conviction for aggravated assault because the jury clearly chose to credit the victim's version of events, rejecting defendant's testimony supporting self-defense; the victim testified specifically about the manner in which defendant and co-defendant began to follow him, about his attempts to get help through 911, about the shooting, about his fleeing the scene, and about his abandoning his own weapon to seek. State v. Manning, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 615 (Tenn. Crim. App. Sept. 17, 2020).

39-11-602. Justification definitions.

As used in this part, unless the context otherwise requires:

  1. “Custody” means under arrest by a law enforcement officer, or under restraint by an officer, employee or agent of government pursuant to an order of a court;
  2. “Deadly force” means force that is intended or known by the defendant to cause or, in the manner of its use or intended use, is capable of causing death or serious bodily injury; and
  3. “Escape” means unauthorized departure from custody or failure to return to custody following temporary leave for a specific purpose of limited period, but does not include a violation of conditions of probation or parole.

Acts 1989, ch. 591, § 1.

39-11-603. Confinement as justifiable force.

Confinement is justified when force is justified by this part, if the person takes reasonable measures to terminate the confinement as soon as the person knows it can be done safely, unless the individual confined has been arrested for an offense.

Acts 1989, ch. 591, § 1.

Sentencing Commission Comments.

This section recognizes confinement as a form of force which may be used whenever justifiable. This concept is based on present Tennessee law which relieves merchants, employees, and officers from both civil and criminal liability for false arrest, false imprisonment or unlawful detention if the arrest or detention was based on probable cause. § 40-7-116(a), (b), (c). This section is intended to authorize reasonable alternatives to the use of force. Confinement is recognized as a form of justifiable force; restrictions on the use of force contained elsewhere in this part also apply to confinement.

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

39-11-604. Reckless injury of innocent third person.

Even though a person is justified under this part in threatening or using force or deadly force against another, the justification afforded by this part is unavailable in a prosecution for harm to an innocent third person who is recklessly injured or recklessly killed by the use of such force.

Acts 1989, ch. 591, § 1.

Sentencing Commission Comments.

This section provides that a defendant may be justified in using force against another person but criminally responsible if that use of force recklessly injures a third person. The underlying principle is that a defendant's culpability is to be measured independently for each victim. The section is designed to deter reckless conduct that could harm innocent third persons.

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

39-11-605. Civil remedies unaffected.

The fact that conduct is justified under this part does not abolish or impair any remedy for the conduct that is or may be available in a civil suit.

Acts 1989, ch. 591, § 1.

Sentencing Commission Comments.

This section creates a distinction between justifications for criminal and civil law. The defenses in this chapter apply only to criminal law and are not intended to affect civil liability. See also § 39-11-102(c).

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

39-11-606 — 39-11-608. [Reserved.]

Except as provided in §§ 39-11-61139-11-616, 39-11-620 and 39-11-621, conduct is justified, if:

  1. The person reasonably believes the conduct is immediately necessary to avoid imminent harm; and
  2. The desirability and urgency of avoiding the harm clearly outweigh the harm sought to be prevented by the law proscribing the conduct, according to ordinary standards of reasonableness.

Acts 1989, ch. 591, § 1.

Sentencing Commission Comments.

This section codifies the common law defense of necessity. It excuses criminal liability in those exceedingly rare situations where criminal activity is an objectively reasonable response to an extreme situation. For example, the necessity defense would bar a trespass conviction for a hiker, stranded in a snowstorm, who spends the night in a vacant cabin rather than risking death sleeping in the open.

The defense is limited to situations: (1) where the defendant acts upon a reasonable belief that the action is necessary to avoid harm; and (2) where the harm sought to be avoided is clearly greater than the harm caused by the criminal act. The defense is further limited in application to those offenses where it is not expressly excluded by statute.

Subdivisions (1) and (2) contemplate a balancing between the harm caused by the conduct constituting an offense, and the harm the defendant sought to avoid by the conduct. If the harm sought to be avoided was, by ordinary standards of reasonableness, clearly greater than the harm actually caused (the offense), the defendant's conduct causing the offense is justified.

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.

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).

NOTES TO DECISIONS

1. Construction.

Neither duress nor necessity are affirmative defenses; both are “defenses” and, if admissible evidence fairly raises either defense, the trial court must submit the defense to the jury and the prosecution must prove beyond a reasonable doubt that the defense does not apply. State v. Culp, 900 S.W.2d 707, 1994 Tenn. Crim. App. LEXIS 858 (Tenn. Crim. App. 1994).

Trial court properly refused to instruct jury on the defense of necessity where defendant first claimed the money he stole was to buy drugs for himself and only later claimed to need the money to protect his grandchildren from drug dealers, defense witnesses only marginally corroborated his story of threats to the children and defendant provided no proof that robbery was the only alternative available to protect the children. State v. Davenport, 973 S.W.2d 283, 1998 Tenn. Crim. App. LEXIS 212 (Tenn. Crim. App. 1998).

Jury instruction on duress adequately conveyed the general policies supporting the existence of both the duress and necessity defenses; therefore, the trial court did not err in denying the defendant's request for an instruction on necessity. State v. Green, 995 S.W.2d 591, 1998 Tenn. Crim. App. LEXIS 1079 (Tenn. Crim. App. 1998).

To be entitled to the defense of necessity, defendant must show an immediately necessary action, justifiable because of an imminent threat, where the action is the only means to avoid the harm. State v. Watson, 1 S.W.3d 676, 1999 Tenn. Crim. App. LEXIS 204 (Tenn. Crim. App. 1999).

2. Jury Instructions.

Trial court did not err in rejecting request for a jury instruction on the defense of necessity where the record did not demonstrate that defendant's actions in driving with a revoked license were the only means of avoiding an imminent threat to her passenger's health and safety. State v. Watson, 1 S.W.3d 676, 1999 Tenn. Crim. App. LEXIS 204 (Tenn. Crim. App. 1999).

Trial court did not err by failing to charge the jury on the defense of necessity where defendant failed to show that a non-human act caused him to fire the shots or that the harm sought to be avoided was greater than the harm caused by his criminal act. State v. Perrier, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 666 (Tenn. Crim. App. Sept. 6, 2016), aff'd, 536 S.W.3d 388, 2017 Tenn. LEXIS 724 (Tenn. Nov. 21, 2017).

Trial counsel's performance was not deficient by failing to request jury instructions on the defenses of duress and necessity because the defenses were not raised by the proof at trial. Counsel researched the possibility of arguing the defenses of necessity or duress at trial, but was unable to corroborate defendant's story, while abandoned this theory of the case when defendant informed counsel that defendant had never entered the building that was vandalized and burglarized and by testifying to living in a hotel at the time of the offense. Walton v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 363 (Tenn. Crim. App. May 10, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 601 (Tenn. Sept. 22, 2017).

Post-conviction court properly dismissed petitioner's application for post-conviction relief because petitioner failed to prove that trial counsel's failure to request a jury instruction on necessity; the statutory defense of necessity arguably had no application in the case of homicide, and trial counsel's strategy claiming petitioner acted in self-defense was reasonable and sound. Hendricks v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 651 (Tenn. Crim. App. July 26, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 810 (Tenn. Nov. 16, 2017).

In a prosecution of defendant for being a felon in possession of a handgun, the trial court did not err in denying defendant's request for an instruction on the defense of necessity. Nothing in the record indicated defendant's action of possessing the gun in any way delayed or hindered the subsequent violence, and the trial court was correct in finding the evidence produced at trial did not fairly raise the defense of necessity as to defendant's actions. State v. Cole-Pugh, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 111 (Tenn. Crim. App. Feb. 15, 2018).

Where the general defense of necessity is fairly raised by the evidence, the trial court is obligated to instruct the jury accordingly, regardless of whether the instruction is requested. A defendant need not testify that he reasonably feared imminent bodily harm; the trial court may draw this inference from the evidence as it is viewed in the light most favorable to the defendant, together with all reasonable inferences therefrom. In addition, a request for a jury instruction on a general defense is not subject to waiver for failure to submit the request in writing. State v. Cole-pugh, — S.W.3d —, 2019 Tenn. LEXIS 498 (Tenn. Oct. 25, 2019).

Trial court erred by failing to instruct the jury on the defense of necessity during defendant's trial for being a felon in possession of a handgun because it was fairly raised by the evidence, as it showed that defendant became involved in a physical altercation with two men inside a convenience store, a gun from the jacket of one of the men, the two men grappled with defendant for the gun but defendant reached it first, a jury could have inferred that defendant reasonably believed that obtaining the gun was immediately necessary for him to avoid imminent harm, and defendant's girlfriend was shot with another gun very shortly thereafter. State v. Cole-pugh, — S.W.3d —, 2019 Tenn. LEXIS 498 (Tenn. Oct. 25, 2019).

3. Defense to Escape.

In order to establish defense of necessity in an escape case: (1) The person must reasonably believe the conduct is immediately necessary to avoid imminent harm; (2) The desirability and urgency of avoiding the harm clearly outweighs, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; (3) There is no time for a complaint to the authorities or there exists a history of futile complaints which make any result from such compliance illusory; and (4) The prisoner must immediately report to the proper authorities when he has attained a position of safety from the immediate threat. State v. Culp, 900 S.W.2d 707, 1994 Tenn. Crim. App. LEXIS 858 (Tenn. Crim. App. 1994).

In a prosecution for escape, where defendant's offer of proof tended to establish several of the necessary elements of necessity, the evidence was relevant and should have been admitted. State v. Culp, 900 S.W.2d 707, 1994 Tenn. Crim. App. LEXIS 858 (Tenn. Crim. App. 1994).

4. Defense Rejected.

Even if someone had been threatening to shoot defendant, his firing toward the convenience store where three people were outside and at least three people were inside was a far greater harm; therefore, the proof did not fairly raise the defense of necessity. State v. Perrier, 536 S.W.3d 388, 2017 Tenn. LEXIS 724 (Tenn. Nov. 21, 2017).

Evidence was sufficient to support defendant's convictions for operating a motor vehicle after having been declared a motor vehicle habitual offender and driving on a revoked license because the jury heard the evidence and, irrespective of whether it believed defendant's claim that she thought she was having a stroke, chose to reject her defense of necessity, as was its prerogative. State v. Hottiman, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 159 (Tenn. Crim. App. Feb. 28, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 455 (Tenn. July 19, 2018).

39-11-610. Public duty.

  1. Except as qualified by subsections (b) and (c), conduct is justified if the person reasonably believes the conduct is required or authorized by law, by the judgment or order of a competent court or other tribunal, or in the execution of legal process.
  2. The following sections of this part control:
    1. When force is threatened or used against a person to protect persons, pursuant to §§ 39-11-611 — 39-11-613;
    2. To protect property, pursuant to §§ 39-11-614 — 39-11-616; or
    3. For law enforcement, pursuant to § 39-11-620.
  3. The justification afforded by this section is available if:
    1. The person reasonably believes the court or tribunal has jurisdiction or the process is lawful, even though the court or tribunal lacks jurisdiction or the process is unlawful; or
    2. The person reasonably believes the conduct is required or authorized to assist a public servant in the performance of the public servant's official duty, even though the public servant exceeds the public servant's lawful authority.

Acts 1989, ch. 591, § 1.

Sentencing Commission Comments.

This section codifies the defense of public duty, allowing justification under certain limited circumstances while preventing a blanket “following orders” defense. The justification allowed under this section requires a reasonable belief in the legality of the actions taken, so that defendants who knowingly disregard the law or exceed their authority are denied the defense.

Subsection (a) limits the defense to situations where the defendant reasonably believes his or her conduct is lawful. For example, under some circumstances, Tennessee law authorizes law enforcement officers to enter buildings to execute search warrants or to seize goods. This section protects law enforcement officers who perform these duties under a reasonable belief that their actions are lawful.

Subsection (b) clarifies that where force is used, the code sections governing justification of force control. Thus, this section does not apply to the use of force.

Subsection (c) protects persons who act under a reasonable (though incorrect) belief of the lawfulness of an authority granted by a court or tribunal (any official adjudicatory body) and private citizens who assist public servants under a reasonable belief the conduct is necessary or authorized to assist the public servant in carrying out the public servant's official duties.

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

39-11-611. Self-defense.

  1. As used in this section, unless the context otherwise requires:
    1. “Business” means a commercial enterprise or establishment owned by a person as all or part of the person's livelihood or is under the owner's control or who is an employee or agent of the owner with responsibility for protecting persons and property and shall include the interior and exterior premises of the business;
    2. “Category I nuclear facility” means a facility that possesses a formula quantity of strategic special nuclear material, as defined and licensed by the United States nuclear regulatory commission, and that must comply with the requirements of 10 CFR Part 73;
    3. “Curtilage” means the area surrounding a dwelling that is necessary, convenient and habitually used for family purposes and for those activities associated with the sanctity of a person's home;
    4. “Deadly force” means the use of force intended or likely to cause death or serious bodily injury;
    5. “Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, that has a roof over it, including a tent, and is designed for or capable of use by people;
    6. “Nuclear power reactor facility” means a reactor designed to produce heat for electric generation, for producing radiation or fissionable materials, or for reactor component testing, and does not include a reactor used for research purposes;
    7. “Nuclear security officer” means a person who meets the requirements of 10 CFR Part 73, Appendix B, who is an employee or an employee of a contractor of the owner of a category I nuclear facility or nuclear power reactor facility, and who has been appointed or designated by the owner of a category I nuclear facility or nuclear power reactor facility to provide security for the facility;
    8. “Residence” means a dwelling in which a person resides, either temporarily or permanently, or is visiting as an invited guest, or any dwelling, building or other appurtenance within the curtilage of the residence; and
    9. “Vehicle” means any motorized vehicle that is self-propelled and designed for use on public highways to transport people or property.
    1. Notwithstanding § 39-17-1322, a person who is not engaged in unlawful activity and is in a place where the person has a right to be has no duty to retreat before threatening or using force against another person when and to the degree the person reasonably believes the force is immediately necessary to protect against the other's use or attempted use of unlawful force.
    2. Notwithstanding § 39-17-1322, a person who is not engaged in unlawful activity and is in a place where the person has a right to be has no duty to retreat before threatening or using force intended or likely to cause death or serious bodily injury, if:
      1. The person has a reasonable belief that there is an imminent danger of death or serious bodily injury;
      2. The danger creating the belief of imminent death or serious bodily injury is real, or honestly believed to be real at the time; and
      3. The belief of danger is founded upon reasonable grounds.
  2. Any person using force intended or likely to cause death or serious bodily injury within a residence, business, dwelling or vehicle is presumed to have held a reasonable belief of imminent death or serious bodily injury to self, family, a member of the household or a person visiting as an invited guest, when that force is used against another person, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence, business, dwelling or vehicle, and the person using defensive force knew or had reason to believe that an unlawful and forcible entry occurred.
  3. The presumption established in subsection (c) shall not apply, if:
    1. The person against whom the force is used has the right to be in or is a lawful resident of the dwelling, business, residence, or vehicle, such as an owner, lessee, or titleholder; provided, that the person is not prohibited from entering the dwelling, business, residence, or occupied vehicle by an order of protection, injunction for protection from domestic abuse, or a court order of no contact against that person;
    2. The person against whom the force is used is attempting to remove a person or persons who is a child or grandchild of, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used;
    3. Notwithstanding § 39-17-1322, the person using force is engaged in an unlawful activity or is using the dwelling, business, residence, or occupied vehicle to further an unlawful activity; or
    4. The person against whom force is used is a law enforcement officer, as defined in § 39-11-106, who enters or attempts to enter a dwelling, business, residence, or vehicle in the performance of the officer's official duties, and the officer identified the officer in accordance with any applicable law, or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.
  4. The threat or use of force against another is not justified:
    1. If the person using force consented to the exact force used or attempted by the other individual;
    2. If the person using force provoked the other individual's use or attempted use of unlawful force, unless:
      1. The person using force abandons the encounter or clearly communicates to the other the intent to do so; and
      2. The other person nevertheless continues or attempts to use unlawful force against the person; or
    3. To resist a halt at a roadblock, arrest, search, or stop and frisk that the person using force knows is being made by a law enforcement officer, unless:
      1. The law enforcement officer uses or attempts to use greater force than necessary to make the arrest, search, stop and frisk, or halt; and
      2. The person using force reasonably believes that the force is immediately necessary to protect against the law enforcement officer's use or attempted use of greater force than necessary.
  5. A nuclear security officer is authorized to use deadly force under the following circumstances:
    1. Deadly force appears reasonably necessary to prevent or impede an act, or attempted act, of radiological sabotage at a category I nuclear facility or nuclear power reactor facility, including, but not limited to, situations where a person is attempting to, or has, unlawfully or forcefully entered a category I nuclear facility or nuclear power reactor facility, and where adversary tactics are employed to attempt an act of radiological sabotage, such as, but not limited to:
      1. Use of firearms or small arms;
      2. Use of explosive devices;
      3. Use of incendiary devices;
      4. Use of vehicle borne improvised explosive devices;
      5. Use of water borne improvised explosive devices;
      6. Breaching of barriers; and
      7. Use of other adversary or terrorist tactics which could be employed to attempt an act of radiological sabotage;
    2. Deadly force appears reasonably necessary to protect the nuclear security officer or another person if the nuclear security officer reasonably believes there is an imminent danger of death or serious bodily injury;
    3. Deadly force appears reasonably necessary to prevent the imminent infliction or threatened infliction of death or serious bodily harm or the sabotage of an occupied facility by explosives;
    4. Deadly force appears reasonably necessary to prevent the theft, sabotage, or unauthorized control of special nuclear material from a nuclear power reactor facility or of a nuclear weapon or nuclear explosive device or special nuclear material from a category I nuclear facility; or
    5. Deadly force reasonably appears to be necessary to apprehend or prevent the escape of a person reasonably believed to:
      1. Have committed an offense of the nature specified under this subsection (f); or
      2. Be escaping by use of a weapon or explosive or who otherwise poses an imminent danger of death or serious bodily harm to nuclear security officers or others unless apprehended without delay.

Acts 1989, ch. 591, § 1; 1990, ch. 1030, § 8; 2007, ch. 210, § 1; 2008, ch. 1012, § 1; 2009, ch. 194, § 2; 2012, ch. 627, §§ 1, 2; 2016, ch. 701, §§ 1-5; 2017, ch. 80, §§ 1-4.

Sentencing Commission Comments.

This section codifies much of the common law doctrine of self defense. The defense is applicable to the use or threatened use of force and to both ordinary force and deadly force. Threats are included because under some circumstances they constitute offenses.

Subsection (a) allows the justification of self defense to persons who reasonably believe they are imminently threatened with force or are actually attacked and who react with the force reasonably necessary to protect themselves. The test of “reasonable belief” places the emphasis on the defendant's reliance upon reasonable appearances rather than exposing the defendant to the peril of criminal liability where appearances were deceiving and no actual danger existed. The test is threefold: the defendant must reasonably believe he is threatened with imminent loss of life or serious bodily injury; the danger creating the belief must be real or honestly believed to be real at the time of the action; and the belief must be founded on reasonable grounds. Under this section, there is no duty to retreat, which changes Tennessee law.

Subsection (b) is a restatement of a prior Tennessee statute which created a presumption that a person using force against an intruder in the residence held a reasonable fear of imminent death or serious injury.

Subsections (c), (d) and (e) are restrictions to the defense. Subsections (c) and (d) continue the traditional rule that the defendant claiming justification should be free from fault in bringing on the necessity of using force. Subsection (c) recognizes that persons who consent to the force used against them are prohibited from utilizing self defense in responding to that use of force. Examples would be mutual combatants or participants in contact sports. The defense, however, is available if the force used against the defendant exceeded the scope of the defendant's consent.

Subsection (d) also restricts the defense by codifying the traditional concept of the initial aggressor. In order to use the defense, the initial aggressor must withdraw or communicate an intent to withdraw and the force must continue despite this communication. See Irvine v. State, 104 Tenn. 132, 56 S.W. 845 (1900); Gann v. State, 214 Tenn. 711, 383 S.W.2d 32 (1964).

Subsection (e) represents a policy decision by the commission that the street is not the proper forum for determining the legality of an arrest. To a large extent, the rule is designed to protect citizens from being harmed by law enforcement officers. Research has shown that citizens who resist arrest frequently are injured by trained officers who use their skills and weapons to protect themselves and effectuate the arrest. If the defendant knows it is a law enforcement officer who has stopped or arrested him or her, respect for the rule of law requires the defendant to submit to apparent authority. The justification is restored if the law enforcement officer uses greater force than necessary under the circumstances and the defendant acts under reasonable belief that his or her acts are necessary for self-protection.

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

Attorney General Opinions. Retaliation by gang members subjected to armed attack, OAG 99-009 (1/25/99).

NOTES TO DECISIONS

1. Deadly Force.

A person is not justified in using deadly force to prevent or terminate another's trespass on real estate which is not the person's residence or to prevent or terminate unlawful interference with personal property. State v. Clifton, 880 S.W.2d 737, 1994 Tenn. Crim. App. LEXIS 146 (Tenn. Crim. App. 1994).

Because the jury found that defendant did not employ the handgun in justifiable self-defense pursuant to T.C.A. § 39-17-1322, it was able to consider his commission of the employment of a firearm offense in determining whether he was engaged in unlawful activity pursuant to the self-defense statute. The defeat of a weapons charge pursuant to § 39-17-1322 meant that the jury could not consider the conduct that was the subject of the weapons charge in determining whether defendant was engaged in unlawful activity for purposes of this section. State v. Perrier, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 666 (Tenn. Crim. App. Sept. 6, 2016), aff'd, 536 S.W.3d 388, 2017 Tenn. LEXIS 724 (Tenn. Nov. 21, 2017).

2. —Duty to Retreat.

Under the “true man” doctrine, one need not retreat from the threatened attack of another even though one may safely do so; neither must one pause and consider whether a reasonable person might think it possible to safely flee rather than to attack and disable or kill the assailant. The doctrine applies only when the defendant is without fault in provoking the confrontation, and when the defendant is in a place where he has a lawful right to be and is there placed in reasonably apparent danger of imminent bodily harm or death. State v. Renner, 912 S.W.2d 701, 1995 Tenn. LEXIS 745 (Tenn. 1995).

Mutual combat and situations where the initial use of force is provoked by the defendant may negate the availability of the defense of self defense. State v. Inlow, 52 S.W.3d 101, 2001 Tenn. Crim. App. LEXIS 40 (Tenn. Crim. App. 2001).

Defendant's recitation about engaging in a struggle with victim over victim's gun rather than retreating negated the defendant's theory of any attempt to abandon the burglary; thus, the trial court was correct in finding that the evidence did not support the requested instruction on self defense. State v. Sims, 45 S.W.3d 1, 2001 Tenn. LEXIS 349 (Tenn. 2001), cert. denied, Sims v. Tennessee, 534 U.S. 956, 122 S. Ct. 357, 151 L. Ed. 2d 270, 2001 U.S. LEXIS 9558 (2001).

Phrase “engaged in unlawful activity” in the self-defense statute applies only to a person's duty to retreat. State v. Perrier, 536 S.W.3d 388, 2017 Tenn. LEXIS 724 (Tenn. Nov. 21, 2017).

For purposes of self-defense, the duty to retreat does not mean that a person cannot defend herself or himself as a defendant may still defend himself even to the point of using deadly force, and may be acquitted of a weapons offense if a jury finds that his self-defense was justifiable; those provisions are not mutually exclusive. State v. Perrier, 536 S.W.3d 388, 2017 Tenn. LEXIS 724 (Tenn. Nov. 21, 2017).

3. —True Man Doctrine.

As in all cases of self defense, the force used must be reasonable and, moreover, the “true man” rule implies no license for the initiation of a confrontation or an unreasonable escalation of a confrontation in progress. State v. Renner, 912 S.W.2d 701, 1995 Tenn. LEXIS 745 (Tenn. 1995).

4. Defense of Residence.

Instruction that the victim was acting in defense of his residence in order to justify his conduct was error since the plain language of T.C.A. § 39-11-611 is that self-defense may be utilized in defense of the prosecution, not as justification for a victim's conduct. State v. Belser, 945 S.W.2d 776, 1996 Tenn. Crim. App. LEXIS 568 (Tenn. Crim. App. 1996).

5. Burden of Proof.

The state has the burden of proving beyond a reasonable doubt that defendant did not act in self-defense. State v. Belser, 945 S.W.2d 776, 1996 Tenn. Crim. App. LEXIS 568 (Tenn. Crim. App. 1996).

6. Evidence.

Evidence was sufficient to convict defendant of aggravated assault because defendant involved himself in an altercation between the victim and defendant's friend; during the altercation, defendant left the friend's porch, approached the victim, and struck him in the head with a brick; once the victim was on the ground, defendant struck him an additional three or four times; as a result of the incident, the victim suffered multiple facial fractures, requiring three surgical procedures; and the trial court charged the jury on the issue of self-defense, and the jury chose to reject that defense, as was its prerogative. State v. Benfield, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 329 (Tenn. Crim. App. May 3, 2016).

Evidence was sufficient to support the rejection of defendant's self-defense claim because none of the shooting victims were armed, the evidence showed that all of the victims were shot from more than five feet away, and two of the victims could not have been involved in any confrontation, even if one believed defendant's story about the third victim's threat to defendant. In addition, even if true, defendant's confession showed that defendant escalated any confrontation. State v. Pruitt, 510 S.W.3d 398, 2016 Tenn. LEXIS 980 (Tenn. Dec. 30, 2016).

Evidence was sufficient to convict defendant of reckless endangerment because defendant engaged in reckless conduct that placed the victim in imminent danger of death or serious bodily injury when he used a pocketknife to slash the victim four times; the jury acted within its province if it rejected defendant's testimony that he merely acted to defend himself by reaching for and using his knife to injure the unarmed victim, who punched defendant; and the jury was within its province if it determined that defendant's use of a knife was an unreasonable response to the use or threatened use of unlawful force by the victim or that defendant's use of deadly force was not based upon reasonable beliefs. State v. Dixon, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1032 (Tenn. Crim. App. Dec. 15, 2017).

Once defendant shot the victim, he had committed a knowing killing and his actions and those of the officers after that point were not relevant to defendant's claim of self-defense; the trial court did not abuse its discretion in excluding the officer's statements. State v. Campbell, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 294 (Tenn. Crim. App. Apr. 24, 2020).

Evidence was sufficient to support defendant's conviction for aggravated assault because the jury clearly chose to credit the victim's version of events, rejecting defendant's testimony supporting self-defense; the victim testified specifically about the manner in which defendant and co-defendant began to follow him, about his attempts to get help through 911, about the shooting, about his fleeing the scene, and about his abandoning his own weapon to seek. State v. Manning, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 615 (Tenn. Crim. App. Sept. 17, 2020).

7. Necessary Force.

There was sufficient evidence from which a jury might conclude that, despite the victim's having thrown the initial punch and having pulled the defendant's coat over the defendant's head, the defense of self-defense did not excuse the defendant's actions. State v. Inlow, 52 S.W.3d 101, 2001 Tenn. Crim. App. LEXIS 40 (Tenn. Crim. App. 2001).

Uncommunicated threat made by a victim is admissible as an exception to the rule excluding hearsay statements as an indication of the victim's state of mind, and evidence establishing the victim's status as an aggressor is not excluded under Tenn. R. Evid. 403, even if there is substantial evidence (including a stipulation) that the victim was in fact the aggressor; however, a trial court's failure to admit such a statement did not constitute reversible error because the outcome of the trial was not affected where the evidence showed that defendant used more force than necessary to show self-defense. State v. Saylor, 117 S.W.3d 239, 2003 Tenn. LEXIS 861 (Tenn. 2003), cert. denied, Saylor v. Tennessee, 540 U.S. 1208, 124 S. Ct. 1483, 158 L. Ed. 2d 133, 2004 U.S. LEXIS 1500 (2004).

8. Defense Rejected.

In a felony murder case, a witness's testimony that he saw defendant pointing a rifle at the victim, who held his hands in the air, and heard three shots fired from a .22 caliber weapon, followed by a single shot from a higher caliber gun, along with evidence that defendant used a .22 rifle and that a single shot was fired from the victim's .38 caliber revolver, was sufficient to allow the jury to reject defendant's claim of self-defense. State v. Echols, 382 S.W.3d 266, 2012 Tenn. LEXIS 738 (Tenn. Oct. 10, 2012).

Defendant's conviction for second-degree murder was supported by sufficient evidence where: (1) four witnesses testified that they saw defendant's altercation with the victim and that the victim did not have a gun; (2) law enforcement officers testified that they did not find a weapon on the victim's person or near his body; and (3) defendant's claims that the victim had a gun and that he acted in self defense under T.C.A. § 39-11-611(b) were rejected by the jury. State v. Webster, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 986 (Tenn. Crim. App. Dec. 5, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 374 (Tenn. Apr. 9, 2013), dismissed, Webster v. Phillips, — F. Supp. 2d —, 2017 U.S. Dist. LEXIS 166130 (M.D. Tenn. Oct. 5, 2017).

Evidence that defendant had no injuries despite her claim that the victim choked her and tried to snap her neck, and testimony from the 9-1-1 operator that she did not hear anything to indicate that an attack was occurred was sufficient to defeat defendant's claim of self-defense. State v. Taylor, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 920 (Tenn. Crim. App. Sept. 30, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 70 (Tenn. Jan. 16, 2015), cert. denied, Taylor v. Tennessee, 192 L. Ed. 2d 158, 135 S. Ct. 2368, — U.S. —, 2015 U.S. LEXIS 3523 (U.S. 2015).

Defendant violated T.C.A. § 39-13-102 as: (1) he did not object to the victim's statement that he displayed the gun, pointed it at the victim and threatened to kill him; (2) defendant's statement supported a finding that he displayed the gun to the victim; (3) he was not justified in using force as he armed himself, went to the victim's home and instigated a confrontation with the victim during which he reached for and partially displayed his gun; (4) he did not act in self-defense as he provoked the victim's father into pointing a gun at him and he did not abandon the encounter before he pulled his gun; and (5) as he was not justified in using force under this section, he was not justified in using force in defense of others. United States v. Neal, 627 Fed. Appx. 543, — F.3d —, 2015 U.S. App. LEXIS 17722, 2015 FED App. 681N (6th Cir.).

Since defendant was in possession of at least one, if not two, weapons, the victim's were unarmed, and the lack of gunpowder on the victims'  clothes indicated that they were shot from a distance, the jury did not err in rejecting defendant's claim of self-defense. State v. Pruitt, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 688 (Tenn. Crim. App. Aug. 26, 2015), aff'd, 510 S.W.3d 398, 2016 Tenn. LEXIS 980 (Tenn. Dec. 30, 2016).

Jury was free to discredit defendant's testimony that he used force to protect himself, as other witnesses testified that the victim was unarmed and did not threaten defendant, and the evidence showed that defendant returned to the victim after initially turning away, uttered a threat, and used a knife on an unarmed man. State v. Moffitt, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 67 (Tenn. Crim. App. Jan. 29, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 429 (Tenn. June 24, 2016).

Evidence was sufficient to support defendant's conviction for aggravated assault because the jury was instructed on self-defense and rejected the notion that defendant's striking the victim repeatedly with a wooden beam after the victim fell on the ground was justified as self-defense; any threat the victim posed to defendant ended once the victim fell on the ground. State v. Tiger, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 253 (Tenn. Crim. App. Apr. 4, 2016).

Evidence did not support a finding that defendant killed the victim in self-defense; the evidence did not reflect that a reasonable person could have believed the victim's attempting to gather shopping bags and exit a car posed an imminent danger of death or serious bodily injury, the victim was unarmed at the time of the shooting, defendant had no legal right to be on the property, and the jury could have found that he was waiting in the dark for the victim to return. State v. Johnson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 338 (Tenn. Crim. App. May 4, 2016).

Evidence was sufficient to support defendant's convictions for attempted voluntary manslaughter because defendant and a codefendant in the car which defendant was driving exchanged gunfire with codefendants in another car. Several eyewitnesses testified that the first shots came from defendant's car, while the jury chose not to credit defendant's theory of self-defense or defense of a youth on a sidewalk that was stopped by codefendants in the other car. 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).

Eyewitnesses testified that the first shots came from the defendant's car, the forensic evidence established that the victim was likely hit by a bullet that came from defendant's car, and the jury chose not to credit defendant's theory of self-defense or defense of others, which was not second-guessed on appeal; thus, the evidence was sufficient to support the convictions of attempted voluntary manslaughter and the corresponding counts of employing a firearm during the commission of a dangerous felony. 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).

It was within the jury's province to reject defendant's claim of self-defense, given that the unarmed victim was shot in the back of the head as he attempted to leave a bar, his repeated verbal threats to kill defendant alone did not justify defendant's actions, and the victim's throwing down a glass and breaking it was not evidence of his attempt to put his threats into execution, nor was the simple act of turning towards defendant. State v. Ferrell, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 871 (Tenn. Crim. App. Nov. 18, 2016).

Evidence was sufficient to support defendant's first-degree murder conviction and to reject his claim of self-defense because it showed that he was angry with the victim for taking his gun, defendant forced his way into the apartment and shot the victim several times, defendant testified that the victim fell after the first gunshot, and defendant's gun was still in the victim's waistband after the shooting. State v. Hill-Williams, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 360 (Tenn. Crim. App. May 9, 2017), appeal denied, State v. Hill-Williams, — S.W.3d —, 2017 Tenn. LEXIS 489 (Tenn. Aug. 18, 2017).

In a case in which defendant was charged with aggravated assault by the use of a deadly weapon, the evidence was sufficient to convict defendant of the lesser-included offense of assault because, although defendant testified that the victim became violent, shoved and choked him, and beat him with a fan, and he used a knife to fend off the victim's attacks, the jury was free to reject defendant's testimony that he acted in self-defense; and the victim testified that defendant threatened and stabbed him with a knife, and he defended himself with a fan. State v. Parvin, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 703 (Tenn. Crim. App. Aug. 10, 2017).

Sufficient evidence supported defendant's aggravated assault conviction because it showed defendant (1) intentionally or knowingly caused a victim to reasonably fear imminent bodily injury by pointing a gun at the victim, and (2) did not act in self-defense. State v. Howard, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 839 (Tenn. Crim. App. Sept. 13, 2017).

Proof at trial established that defendant did not act in self-defense when he shot the victim because a witness testified that when she entered the victim's apartment she saw the victim on the floor clutching keys in her hands, another witness testified that the knives on the floor had blood splatter on the handles, and a doctor testified that because of the similarity between the droplets of blood on the knives and on the floor, he believed that the knives were already lying on the floor when the victim was shot. Tenn. v. Satterfield, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 17 (Tenn. Crim. App. Jan. 8, 2019).

Evidence supported defendant's conviction for aggravated assault because defendant became upset with the victim at a party, when the victim approached defendant and asked for the return of the victim's keys, defendant threatened the victim and lunged toward the victim, during the altercation defendant pulled out a knife and stabbed the victim, defendant chased the victim while still holding the knife, and defendant yelled that defendant was going to kill the victim. Furthermore, the jury rejected defendant's claim of self-defense. State v. Wood, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 55 (Tenn. Crim. App. Jan. 28, 2019).

Defendant's contention that the State's proof failed to rebut his self-defense theory was rejected because the State offered evidence that defendant got out of the car, pulled the victim from the car while she was injecting drugs, initiated the assault that culminated in the shooting, and had the only weapon involved. A rational jury could conclude that if the victim had been shot with a gun she possessed, defendant would have had no reason to dispose of either his gun, which he claimed had not been fired, or the victim's gun, which would have supported his claims that she had pointed a gun at him and that they had struggled for control of it. State v. Ward, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 202 (Tenn. Crim. App. Apr. 1, 2019), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 331 (Tenn. July 18, 2019).

Evidence was sufficient to support the jury's rejection of defendant's claim of self-defense for the first-degree murder charge because it showed that he caught one victim by surprise and shot him mid-sentence, another victim testified that defendant put a gun to her head, pulled the trigger, and calmly walked away after the gun jammed, and the victim suffered two gunshot wounds to the back. State v. Burrow, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 227 (Tenn. Crim. App. Apr. 9, 2019).

There was sufficient evidence for a rational trier of fact to have found beyond a reasonable doubt that defendant did not shoot the victim in self-defense, including eye-witness testimony that the victim was sitting on the couch unarmed when defendant came into the residence and shot the victim multiple times State v. Davenport, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 513 (Tenn. Crim. App. Aug. 23, 2019).

Defendant's claim that defendant fatally shot the victim in self-defense when the victim attacked defendant and defendant's child failed because the strongest legitimate view of the evidence was that defendant's child was not struck and injured by the victim, defendant could not explain defendant's orientation to victim, defendant had the wherewithal to record officers'  radio communications in response to the shooting, and defendant calmly discussed the shooting and mocked the victim's surviving spouse after talking with the police. State v. Waggoner, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 595 (Tenn. Crim. App. Sept. 24, 2019).

Evidence supported defendant's conviction for second-degree murder because defendant knowingly killed the victim beyond a reasonable doubt as defendant approached the victim when the victim was walking, defendant confronted the victim about a rumor of the victim hitting defendant's sibling, the victim put the victim's arm around defendant in a friendly way, and defendant fatally shot the victim. Although defendant claimed that he shot the victim in self-defense, the victim was neither acting aggressively towards defendant, nor carrying a gun. State v. Branch, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 79 (Tenn. Crim. App. Feb. 11, 2020).

Sufficient evidence supported defendant's second-degree murder conviction and the jury properly rejected his self-defense claim; despite defendant's claim that he never heard the numerous police announcements of a search warrant, he also admitted that he could not see what was going on and just grabbed his gun and shot, and the jury could have found that defendant did not have a reasonable belief of imminent danger of death or serious bodily. State v. Campbell, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 294 (Tenn. Crim. App. Apr. 24, 2020).

Evidence was sufficient to support defendant's convictions of second degree murder and unlawful possession of a handgun because the surveillance video showed defendant near the sidewalk outside the club when he started shooting the victim, there were no witnesses that testified the victim made any threats, verbal or otherwise, toward defendant, and the surveillance video did not show the victim in the possession of a weapon, and the only weapon found near the scene was the handgun which contained defendant's DNA. State v. Patterson, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 408 (Tenn. Crim. App. June 15, 2020).

Trial court had sufficient evidence upon which to reject the Defendant's claim of self-defense because nothing in the video or the officer's testimony suggested that they used excessive force when they placed the handcuffs on defendant, and the officers'  merely advising him that he was being detained and attempted to handcuff him, which did not amount to greater force than necessary to make an arrest. State v. Forkpa, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 724 (Tenn. Crim. App. Nov. 16, 2020).

9. Instructions.

In petitioner's felony murder case, counsel was deficient in failing to investigate and assert self-defense because counsel admitted that he knew that the petitioner told police that he and the victim had argued, that the victim had “rushed” him, and that he and the victim had fallen into a dresser; although the petitioner did not mention his bloody nose, reasonably diligent counsel would have inferred grounds for self-defense from the argument between the petitioner and the victim and from the petitioner's consistent allegation that he had been “rushed” by the victim. Wiley v. State, 183 S.W.3d 317, 2006 Tenn. LEXIS 20 (Tenn. 2006).

Trial court's failure to instruct the jury on the defense of duress under T.C.A. § 39-11-504 did not constitute plain error under former Tenn. R. Crim. P. 52(b) (see now T.R.A.P. 36(b)), and therefore his conviction of unlawful possession of a handgun by a convicted felon in violation of T.C.A. § 39-17-1307(b)(1)(A) was reinstated, even though the evidence, including defendant's testimony, may have been sufficient to warrant such an instruction, because duress was never discussed as a theory of the defense and defendant expressly declined a jury instruction on self-defense, a defense closely related to duress. State v. Bledsoe, 226 S.W.3d 349, 2007 Tenn. LEXIS 368 (Tenn. Apr. 26, 2007).

Court did not err in declining to give a third person defense instruction and giving a self defense instruction because defendant saw his best friend fighting, he exited the truck with his shotgun and walked toward the friend, the victim approached defendant and defendant shot the victim, allegedly to “protect” himself. Moreover, defendant testified that he shot the victim to protect himself. State v. Hawkins, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 112 (Tenn. Crim. App. Feb. 16, 2012), aff'd in part, rev'd in part, 406 S.W.3d 121, 2013 Tenn. LEXIS 497 (Tenn. June 20, 2013).

Trial court committed plain error by failing to instruct the jury on self-defense because it was fairly raised by the testimony, where defendant picked up the intoxicated victim, they argued, the victim reached down to her ankle holster where defendant saw a gun, defendant fired his gun to prevent the victim from using her gun, in doing so he caused property damage but no physical damage to anyone, he remained at the scene and cooperated fully when approached by authorities, and the jury's verdict of attempted voluntary manslaughter indicated the jury's belief that defendant acted under adequate provocation. State v. Lunsford, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 321 (Tenn. Crim. App. Apr. 29, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 721 (Tenn. Sept. 27, 2016).

Trial court did not improperly advised defendant that if he testified that he had acted in self-defense, the jury would be instructed that he was engaged in unlawful activity by being a felon in possession of a firearm because, at the time of the trial, being a felon in possession of a firearm could constitute unlawful activity for purposes of the self-defense statute. State v. Tate, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 402 (Tenn. Crim. App. May 31, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 782 (Tenn. Oct. 21, 2016).

Trial court did not err by refusing to provide a jury instruction on self-defense because reasonable minds could not have accepted a theory of self-defense based on the State's proof as all of the evidence indicated that defendant was the initial aggressor in the confrontation and that his display of a weapon was what provoked the victim to also display a weapon; there was no evidence that defendant attempted to abandon the encounter once he saw the victim's weapon; and defendant could not claim that he acted in self-defense when his conduct provoked the opposing threat, and he made no effort to retreat. State v. Tate, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 402 (Tenn. Crim. App. May 31, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 782 (Tenn. Oct. 21, 2016).

Trial court did not err in declining to give a self-defense instruction, as the uncontested proof showed that the unarmed victim was asleep when defendant shot him. State v. Self, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 639 (Tenn. Crim. App. Aug. 29, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 30 (Tenn. Jan. 19, 2017), cert. denied, Self v. Tennessee, 198 L. Ed. 2d 666, 137 S. Ct. 2224, — U.S. —, 2017 U.S. LEXIS 3666 (U.S. June 5, 2017).

Even though the trial court erred by charging the jury on self-defense by including in the instruction offenses that were not charged in the indictment and requiring the jury to determine whether defendant was committing any of the uncharged offenses at the time he used deadly force, the error was harmless because the jury convicted defendant of employing a firearm during the attempt to commit a dangerous felony. State v. Perrier, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 666 (Tenn. Crim. App. Sept. 6, 2016), aff'd, 536 S.W.3d 388, 2017 Tenn. LEXIS 724 (Tenn. Nov. 21, 2017).

Trial court stated the applicable Tennessee pattern jury instructions provided a correct and complete charge of the law on self-defense, plus the jury instruction regarding the State's burden to negate defendant's claim of self-defense was given to the jury before it began deliberating, and no error was found; the prefatory phrase did not shift the burden of proof, plus any error in including the prefatory phase would have been harmless because it was clear that evidence of self-defense had been raised and that the issue was squarely before the jury. State v. Ferrell, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 871 (Tenn. Crim. App. Nov. 18, 2016).

Without evidence either that the victim acted in a manner causing defendant to believe that the victim presented an imminent danger of death or serious bodily injury, there was no evidence that defendant's force was immediately necessary to protect against the victim; there was no basis to find that the evidence fairly raised an issue as to whether defendant acted in defense of either self or another, and the trial court's refusal to instruct the jury on self-defense and defense of person was not error. State v. Estrada, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 896 (Tenn. Crim. App. Nov. 30, 2016).

Trial court did not err by refusing to instruct the jury on self-defense because the only evidence defendant presented was a witness's testimony that she heard what she believed to be the victim rummaging through a knife drawer and leaving after defendant, but she did not see the act take place. State v. Rahman, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 180 (Tenn. Crim. App. Mar. 9, 2017).

For purposes of self-defense, a defendant is entitled to a jury instruction that he or she did not have to retreat from an alleged attack only when the person was not engaged in unlawful activity and was in a place the person had a right to be. State v. Perrier, 536 S.W.3d 388, 2017 Tenn. LEXIS 724 (Tenn. Nov. 21, 2017).

Trial court makes the threshold determination whether to charge the jury with self-defense, and the trial court, as part of that threshold determination, should decide whether to charge the jury that a defendant did not have a duty to retreat; as part of that decision, the trial court should consider whether the State has produced clear and convincing evidence that the defendant was engaged in unlawful activity such that the no duty to retreat instruction would not apply. Because the allegedly unlawful activity will oftentimes be uncharged conduct similar to evidence of prior bad acts, the procedure outlined in Tenn. R. Evid. 404(b) should be utilized by the parties. State v. Perrier, 536 S.W.3d 388, 2017 Tenn. LEXIS 724 (Tenn. Nov. 21, 2017).

Because defendant's engagement in unlawful activity for the purpose of the self-defense statute was a threshold determination to be made by the trial court, the trial court's jury instructions in defendant's case were erroneous; however, the error was harmless because defendant's possession of a firearm when he was a convicted felon amounted to engaging in unlawful activity; and no reasonable jury would have accepted his self-defense theory as the evidence showed that any belief on defendant's part that he was in imminent danger of death or serious bodily injury was not reasonable considering the testimony by multiple witnesses that only words had been exchanged and that no one had used or attempted to use unlawful force on defendant. State v. Perrier, 536 S.W.3d 388, 2017 Tenn. LEXIS 724 (Tenn. Nov. 21, 2017).

Trial court did not err by failing to give a jury instruction on self-defense because defendant conceded that he was engaged in unlawful activity by breaking into the owner's vehicle, the victim's use of force against defendant was clearly provoked by defendant's unlawful activity as the victim testified that he tackled defendant in an attempt to prevent him from stealing anything, and there was no evidence that defendant abandoned the encounter, communicated his intent to do so, or otherwise attempted to retreat prior to stabbing the unarmed victim. State v. Schipp, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 182 (Tenn. Crim. App. Mar. 7, 2018).

Trial court did not err in rejecting defendant's requests for special jury instructions on the issue of self-defense because the court used the applicable Tennessee Pattern Jury Instructions, the jury instruction regarding the State of Tennessee's burden to negate defendant's claim of self-defense was given to the jury before it began deliberating, and the prefatory phrase – “if evidence has been introduced supporting self-defense” – did not improperly shift the burden to defendant to present the defense. State v. Floyd, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 233 (Tenn. Crim. App. Mar. 29, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 452 (Tenn. July 18, 2018).

Defendant was not entitled to a jury instruction on self-defense, because he consented to the victim's use of force when he re-entered the victim's residence after being locked out. State v. Sanders, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 585 (Tenn. Crim. App. Aug. 6, 2018).

Because the trial court's failure to give the jury a self-defense instruction lowered the State's burden of proof because it removed the requirement that the State prove beyond a reasonable doubt that defendant did not act in self-defense, his conviction was reversed and the case was remanded for a new trial. State v. Benson, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 825 (Tenn. Crim. App. Nov. 5, 2018), rev'd, — S.W.3d —, 2020 Tenn. LEXIS 155 (Tenn. Apr. 30, 2019).

When the issue of self-defense has been fairly raised by the evidence, it is up to the jury, not the trial court, to determine whether the defendant's belief in imminent danger or the amount of force used by the defendant were reasonable; as self-defense was fairly raised by the proof in this case, the trial court erred by failing to instruct the jury on the defense. State v. Benson, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 825 (Tenn. Crim. App. Nov. 5, 2018), rev'd, — S.W.3d —, 2020 Tenn. LEXIS 155 (Tenn. Apr. 30, 2019).

Evidence did not fairly raise an issue as to the existence of self-defense; the elements of aggravated rape were established and the offense was completed before the victim grabbed defendant's testicles, and defendant was not acting in self-defense when he engaged in what he claimed was a consensual sexual encounter with the victim. State v. Smartt, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 620 (Tenn. Crim. App. Oct. 3, 2019).

An instruction on self-defense was warranted because there was some evidence from which the jury could have determined that defendant's use of force was only for protection against police officers who were using more force than was necessary to place defendant under arrest. Defendant testified that defendant was sitting in a car at night when someone with a blinding light from a flashlight approached, began hitting the window, pulled defendant out, and began hitting defendant as defendant attempted to comply with the officer's demands. State v. Wilson, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 797 (Tenn. Crim. App. Dec. 20, 2019).

Causal nexus between a defendant's unlawful activity and his or her need to engage in self-defense is necessary before the trial court can instruct the jury that the defendant had a duty to retreat. State v. Booker, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 226 (Tenn. Crim. App. Apr. 8, 2020).

Trial court did not err in instructing the jury that defendant had a duty to retreat because he was engaged in robbery at the time of the offense. The proof overwhelmingly established a causal connection between defendant's robbery of the victim and defendant's perceived need to engage in self-defense. State v. Booker, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 226 (Tenn. Crim. App. Apr. 8, 2020).

Trial court instructed the jury concerning self-defense pursuant to the pattern jury instruction but did not, as required by case law, make the initial determination of whether or not defendant was engaged in unlawful activity, which was error; however, the evidence overwhelmingly established that defendant was engaged in unlawful activity such that the no duty to retreat instruction would not apply, and any error was harmless beyond a reasonable doubt. State v. Campbell, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 294 (Tenn. Crim. App. Apr. 24, 2020).

Trial court did not err by denying defendant's requests for special jury instructions on self-defense and adequate provocation because the instruction given closely tracked the language of the pattern jury instructions and was consistent with this section and therefore the trial court was not obligated to give the special instruction. State v. Donaldson, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 342 (Tenn. Crim. App. May 14, 2020).

Defendant was not entitled to relief on the basis that the trial court erred by not amending the pattern jury instruction on self-defense because the court did not breach a clear and unequivocal rule of law by denying the request when defendant was accused of shooting the unarmed victim before the victim set foot on defendant's property. The jury had the benefit of both an accurate description of the law in the pattern instruction and counsel's highlighting the sections of those instructions benefitting the defense theory. State v. Manis, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 375 (Tenn. Crim. App. May 27, 2020).

Trial court did not err by failing to instruct the jury that defendant had no duty to retreat because it found that defendant was acting unlawfully by carrying a firearm with the intent to go armed and the Perrier decision was not limited to convicted felons in possession of a firearm. State v. Smith, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 453 (Tenn. Crim. App. June 30, 2020).

Trial court did not err by denying defendant's request for a jury instruction on self-defense because it was not fairly raised by the evidence, as the evidence showed that defendant already had a gun in his hand before the victim exited the market, defendant got out of his vehicle with a gun after blocking the victim's car, and the victim walked out of the market unaware of defendant's presence until defendant ran up and shot him. State v. Thompson, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 573 (Tenn. Crim. App. Aug. 20, 2020).

10. Ineffective Assistance.

Vacation of petitioner's, an inmate's, convictions was improper because the courts below erred in concluding that counsel performed deficiently by exclusively pursuing a theory of self-defense, T.C.A. § 39-11-611(a), (d). Trial counsel spent over 100 hours on the case, worked with two other attorneys, discussed the case with the inmate many times, and generated an extensive trial memorandum, which included a comprehensive statement from the inmate; concluding that the inmate had no criminal intent when he entered the home and simply responded to the victim's attack, trial counsel pursued self-defense exclusively. Felts v. State, 354 S.W.3d 266, 2011 Tenn. LEXIS 1060 (Tenn. Nov. 10, 2011).

Petition for post-conviction relief was properly denied because appellate counsel was not ineffective for failing to raise the issue of trial counsel's alleged failure to request a self-defense instruction on appeal as the proof at trial did not fairly raise the issue of self-defense because the victim, an unarmed security guard, responded to an emergency call related to a gang fight in the mall; the victim was able to pin defendant against a booth; defendant's friend then told the victim to let defendant go; the victim released defendant; defendant then pulled out a handgun and fired a fatal shot into the victim's chest; and a witness testified that the victim was standing still with his hands at his side when defendant fired his weapon. Loverson v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 71 (Tenn. Crim. App. Jan. 30, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 347 (Tenn. May 22, 2017).

11. Applicability.

Chancery court erred in ruling that a civil service commission violated a statutory provision by failing to give an employee the benefit of the self-defense statute because that statute was not relevant to the commission's resolution of a factual dispute; the commission was fully apprised of the employee's claim that he acted in self-defense during an altercation and afforded more weight to the evidence supporting the victim's account of the altercation. Holmes v. City of Memphis Civ. Serv. Comm'n, — S.W.3d —, 2017 Tenn. App. LEXIS 20 (Tenn. Ct. App. Jan. 13, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 329 (Tenn. May 22, 2017).

13. No Self-defense.

Defendant failed to prove that he acted in self-defense; given his struggle with the officer when the officer tried to arrest defendant, including fighting over the officer's gun, the evidence did not show that, at the time defendant committed the aggravated assault, the officer was using greater force than necessary to make the arrest. State v. Sweeney, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 644 (Tenn. Crim. App. Oct. 11, 2019).

Evidence was sufficient to support the jury's determination that defendant-who had been drinking heavily and sent multiple inflammatory text messages to the victim before the victim came to defendant's home; did not act in self-defense-either because defendant did not have a reasonable, actual fear of imminent bodily harm, or because defendant's use of lethal force was not reasonable when defendant shot the unarmed victim before the victim set foot on defendant's property. Moreover, defendant also was calm during a 9-1-1 call. State v. Manis, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 375 (Tenn. Crim. App. May 27, 2020).

Evidence was sufficient to convict defendant of aggravated assault and domestic assault because the victim suffered serious bodily injury after being hit and then kicked in the face multiple times by defendant; her left eye was swollen shut, and the left side of her face was heavily bruised; the victim testified that she still experienced facial pain from the assault, and her eye still did not completely open; defendant and the victim had been dating for approximately two years and had been living together; and defendant did not act in self-defense as he was not in danger of death or serious bodily injury at the time he dragged the victim out of the truck and then kicked her in the face multiple times. State v. Porter, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 654 (Tenn. Crim. App. Oct. 6, 2020).

39-11-612. Defense of third person.

A person is justified in threatening or using force against another to protect a third person, if:

  1. Under the circumstances as the person reasonably believes them to be, the person would be justified under § 39-11-611 in threatening or using force to protect against the use or attempted use of unlawful force reasonably believed to be threatening the third person sought to be protected; and
  2. The person reasonably believes that the intervention is immediately necessary to protect the third person.

Acts 1989, ch. 591, § 1.

Sentencing Commission Comments.

This section makes it clear the right to defend a third person is to be determined in the same fashion as the right of self defense. Section 39-11-611 governs the determination of whether a defendant would have been justified in using force in self-defense under the same facts and circumstances. If the defendant reasonably believes that intervention is immediately necessary to protect the third person, the defendant is justified in the same manner as he or she would have been under § 39-11-611.

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

NOTES TO DECISIONS

1. Defense of Third Person Rejected as Defense.

Evidence was sufficient to determine that defendant committed simple assault, a violation of T.C.A. § 39-13-101(a)(2), because defendant's threats of force against the victim were not justified under T.C.A. § 39-11-612 to protect defendant's brother, and the victim reasonably feared bodily injury. State v. Thomas, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 626 (Tenn. Crim. App. Aug. 16, 2012).

Defendant violated T.C.A. § 39-13-102 as: (1) he did not object to the victim's statement that he displayed the gun, pointed it at the victim and threatened to kill him; (2) defendant's statement supported a finding that he displayed the gun to the victim; (3) he was not justified in using force as he armed himself, went to the victim's home and instigated a confrontation with the victim during which he reached for and partially displayed his gun; (4) he did not act in self-defense as he provoked the victim's father into pointing a gun at him and his friends and he did not abandon the encounter before he pulled his gun; and (5) he was not justified in using force in defense of others. United States v. Neal, 627 Fed. Appx. 543, — F.3d —, 2015 U.S. App. LEXIS 17722, 2015 FED App. 681N (6th Cir.).

Evidence was sufficient to support defendant's convictions for attempted voluntary manslaughter because defendant and a codefendant in the car which defendant was driving exchanged gunfire with codefendants in another car. Several eyewitnesses testified that the first shots came from defendant's car, while the jury chose not to credit defendant's theory of self-defense or defense of a youth on a sidewalk that was stopped by codefendants in the other car. 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).

Eyewitnesses testified that the first shots came from the defendant's car, the forensic evidence established that the victim was likely hit by a bullet that came from defendant's car, and the jury chose not to credit defendant's theory of self-defense or defense of others, which was not second-guessed on appeal; thus, the evidence was sufficient to support the convictions of attempted voluntary manslaughter and the corresponding counts of employing a firearm during the commission of a dangerous felony. 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).

Sufficient evidence supported defendant's aggravated assault conviction because it showed defendant (1) intentionally or knowingly caused a victim to reasonably fear imminent bodily injury by pointing a gun at the victim, and (2) did not act in self-defense or defense of his family. State v. Howard, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 839 (Tenn. Crim. App. Sept. 13, 2017).

Evidence was sufficient to convict defendant of felony murder in perpetration of a kidnapping as he came onto the victim's porch, struck the victim, and forced the victim back into the residence; he then pushed the victim to the floor and pinned the victim down by placing his knee on the victim's back; he tied the victim's wrists and legs together in the “hogtied” position; he and another person left the victim's residence while the victim was still tied up and lying on the floor; the victim sustained contusions, abrasions, broken ribs, blunt force injuries, and eventually died from a heart attack from the stress of the offenses; and defendant did not need to strike victim or tie him up to protect the other person from the victim. State v. Keene, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 25 (Tenn. Crim. App. Jan. 12, 2018).

Evidence was sufficient to convict defendant of felony murder in perpetration of a robbery as defendant took the victim's property by violence and put the victim in fear because he came onto the victim's porch and struck him with a metal stick with a ball on the end of it; defendant forced the victim back into the residence and onto the floor, where he continued to hit the victim; the victim later died from a heart attack induced from his injuries and the stress of the attack; and, even if the jury credited defendant's testimony that he initially struck the victim to defend another person, the jury clearly concluded that defendant's continued assault on the victim, which resulted in the victim's death, was not in defense of another person. State v. Keene, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 25 (Tenn. Crim. App. Jan. 12, 2018).

Trial court properly refused to instruct the jury on duress and defense of a third person with regard to the charge of the attempted first degree premeditated murder because defendant was not charged with that offense for shooting the victim in a club when the victim allegedly pulled a gun on defendants'  sibling as defendant allegedly shot the victim in the parking lot after pursuing the victim. By that time, defendant's brother was no longer in imminent danger of death or serious bodily injury by the victim. State v. Pettis, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 314 (Tenn. Crim. App. May 17, 2019).

Defendant's claim that defendant fatally shot the victim in defense of defendant's adult child failed because the strongest legitimate view of the evidence was that defendant's child was not struck and injured by the victim as a medical responder did not believe the child was injured, the child sought medical attention the next day, but did not follow up, defendant had the wherewithal to record officers'  radio communications in response to the shooting, and defendant later calmly discussed the shooting and mocked the victim's surviving spouse. State v. Waggoner, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 595 (Tenn. Crim. App. Sept. 24, 2019).

While the proof included evidence from which the jury could have drawn the inference that defendant believed that co-defendant was being coerced into a sexual relationship, the failure to give an instruction on defense of other was not error, as there was simply nothing in the record from which the jury could have concluded that defendant reasonably believed that his use of force was immediately necessary to protect co-defendant from any use of force by the victim, as the record was devoid of evidence to support an inference that the victim used physical power or violence. State v. Vincent, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 713 (Tenn. Crim. App. Nov. 8, 2019).

2. Instructions.

Court did not err in declining to give a third person defense instruction because defendant saw his best friend fighting, he exited the truck with his shotgun and walked toward the friend, the victim approached defendant and defendant shot the victim, allegedly to “protect” himself. Moreover, defendant testified that he shot the victim to protect himself. State v. Hawkins, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 112 (Tenn. Crim. App. Feb. 16, 2012), aff'd in part, rev'd in part, 406 S.W.3d 121, 2013 Tenn. LEXIS 497 (Tenn. June 20, 2013).

In defendant's trial on a charge of first degree premeditated murder, T.C.A. § 39-13-202, the trial court properly refused to instruct the jury on defense of a third person, T.C.A. § 39-11-612, because the evidence fairly raised the possibility that defendant acted in self-defense when he fired his shotgun at the victim, but the evidence did not fairly raise the possibility that, at the moment he fired the weapon, defendant believed that pulling the trigger was “immediately necessary” to protect a third person, § T.C.A. § 39-11-612(2); at trial, defendant consistently described his mental state, at the moment of pulling the trigger, as one of self-defense. State v. Hawkins, 406 S.W.3d 121, 2013 Tenn. LEXIS 497 (Tenn. June 20, 2013).

Without evidence either that the victim acted in a manner causing defendant to believe that the victim presented an imminent danger of death or serious bodily injury, there was no evidence that defendant's force was immediately necessary to protect against the victim; there was no basis to find that the evidence fairly raised an issue as to whether defendant acted in defense of either self or another, and the trial court's refusal to instruct the jury on self-defense and defense of person was not error. State v. Estrada, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 896 (Tenn. Crim. App. Nov. 30, 2016).

39-11-613. Protection of life or health.

A person is justified in threatening or using force, but not deadly force, against another, when and to the degree the person reasonably believes the force is immediately necessary to prevent the other from committing suicide or from the self-infliction of serious bodily injury.

Acts 1989, ch. 591, § 1.

Sentencing Commission Comments.

This section is new to Tennessee law. It is designed to remove a possible impediment to the reasonable use of force to aid another person. It justifies the use of force, but not deadly force, against another to prevent self-inflicted serious bodily injury or suicide. The justification is dependent upon the defendant's reasonable belief of the necessity of immediate action.

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

39-11-614. Protection of property.

  1. A person in lawful possession of real or personal property is justified in threatening or using force against another, when and to the degree it is reasonably believed the force is immediately necessary to prevent or terminate the other's trespass on the land or unlawful interference with the property.
  2. A person who has been unlawfully dispossessed of real or personal property is justified in threatening or using force against the other, when and to the degree it is reasonably believed the force is immediately necessary to reenter the land or recover the property, if the person threatens or uses the force immediately or in fresh pursuit after the dispossession:
    1. The person reasonably believes the other had no claim of right when the other dispossessed the person; and
    2. The other accomplished the dispossession by threatening or using force against the person.
  3. Unless a person is justified in using deadly force as otherwise provided by law, a person is not justified in using deadly force to prevent or terminate the other's trespass on real estate or unlawful interference with personal property.

Acts 1989, ch. 591, § 1; 2009, ch. 194, § 1.

Sentencing Commission Comments.

This section affords justification for the defenses of protection of both real and personal property. This defense is available to all persons “in lawful possession” and thus applies to owners, lessees, and bailees. The amount of force allowed is limited to that degree of force reasonably believed to be necessary to terminate the trespass or unlawful interference.

Subsection (b) provides justification for the use of force to reenter land or recapture property under very limited circumstances. The defendant must use or threaten to use force immediately after the dispossession and the defendant must reasonably believe the other person had no right to dispossess the defendant. Further, the dispossession must have been accomplished by the use of threats or force by the other person. This section is intended to encourage the resort to legal process to recover property in all circumstances except those where immediate self help is likely anyway.

Subsection (c) makes it clear deadly force is never justified under this section. Deadly force may be justified, however, under § 39-11-611(b).

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

NOTES TO DECISIONS

1. Residence.

A person's intermittently spending the night at a business establishment as part of that person's part-time employment as a night watchman or security guard does not turn the establishment into a “residence” as that term is used in T.C.A. § 39-11-611. State v. Clifton, 880 S.W.2d 737, 1994 Tenn. Crim. App. LEXIS 146 (Tenn. Crim. App. 1994).

2. Automobile.

Automobile owner was not justified in pulling police officer out of owner's automobile, even though he may not have known the man was a police officer, where officer was lawfully inspecting the interior of the car to determine if it had been stolen. Smith v. Thornburg, 136 F.3d 1070, 1998 FED App. 56P, 1998 U.S. App. LEXIS 2006 (6th Cir. Tenn. 1998).

3. Driver's License/Identification Card.

Revocation of defendant's probation under T.C.A. § 40-35-311(e)(1) was proper as defendant assaulted an officer and resisted arrest where he struck the officer for refusing to return a driver's license while the officer was writing a citation as defendant did not have a property interest in his driver's license/state-issued identification card under T.C.A. § 55-50-336 since the state had the authority to revoke a driver's license; even if defendant had a property interest in his identification card, he was not entitled to use force against a police officer to retrieve it under T.C.A. § 39-11-614(b). State v. Morton, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 209 (Tenn. Crim. App. Mar. 30, 2012).

39-11-615. Protection of third person's property.

A person is justified in threatening or using force against another to protect real or personal property of a third person, if, under the circumstances as the person reasonably believes them to be, the person would be justified under § 39-11-614 in threatening or using force to protect the person's own real or personal property.

Acts 1989, ch. 591, § 1.

Sentencing Commission Comments.

This section justifies the use of limited force to protect another person's real or personal property. Similar to § 39-11-612, defense of third persons, this justification is based upon the defendant's right to protect his or her own property under § 39-11-614. This section permits a defendant to use the same force to protect the property of another that he or she could use to protect his or her own property.

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

39-11-616. Use of device to protect property.

  1. The justification afforded by §§ 39-11-614 and 39-11-615 extends to the use of a device for the purpose of protecting property, only if:
    1. The device is not designed to cause or known to create a substantial risk of causing death or serious bodily harm;
    2. The use of the particular device to protect the property from entry or trespass is reasonable under the circumstances as the person believes them to be; and
    3. The device is one customarily used for such a purpose, or reasonable care is taken to make known to probable intruders the fact that it is used.
  2. Nothing in this section shall affect the law regarding the use of animals to protect property or persons.

Acts 1989, ch. 591, § 1.

Sentencing Commission Comments.

This section provides a limited justification for the use of a device, such as a hidden trap, to protect property. This rule is substantially consistent with the common law tort rule. The commission has considered both the importance of protecting innocent persons (e.g., firefighters, law enforcement officers, and children) and the importance of protecting one's property. Under this section, the use of a device must be reasonable, the device must be one customarily used for protection of property or the user must use reasonable care in giving warning to probable intruders, and the device must not be designed or known to cause death or serious bodily injury.

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

39-11-617 — 39-11-619. [Reserved.]

  1. A law enforcement officer, after giving notice of the officer's identity as such, may use or threaten to use force that is reasonably necessary to accomplish the arrest of an individual suspected of a criminal act who resists or flees from the arrest.
  2. Notwithstanding subsection (a), the officer may use deadly force to effect an arrest only if all other reasonable means of apprehension have been exhausted or are unavailable, and where feasible, the officer has given notice of the officer's identity as such and given a warning that deadly force may be used unless resistance or flight ceases, and:
    1. The officer has probable cause to believe the individual to be arrested has committed a felony involving the infliction or threatened infliction of serious bodily injury; or
    2. The officer has probable cause to believe that the individual to be arrested poses a threat of serious bodily injury, either to the officer or to others unless immediately apprehended.

Acts 1989, ch. 591, § 1; 1990, ch. 1030, § 9.

Sentencing Commission Comments.

This section is a codification of the principles set forth by the United States supreme court in Tennessee v. Garner, 465 U.S. 1098 (1985). It is identical to § 40-7-108. Subsection (a) requires a law enforcement officer to give notice of his or her identity as an officer in order to be justified in using any force to make an arrest. The amount of force justified is only that reasonably necessary to accomplish the arrest.

Subsection (b) allows justification for the use of deadly force in effecting an arrest under very limited circumstances: (1) all other means of apprehension are exhausted or are unavailable; and (2) where feasible, the officer has given notice both of his or her identity as an officer and that deadly force may be used; and (3) the officer has probable cause to believe the individual has committed a felony involving threatened or inflicted serious bodily injury or poses a threat of serious bodily injury unless he or she is immediately apprehended.

The Garner  decision made drastic changes in the law in Tennessee that previously allowed an officer to use deadly force if necessary to effect the arrest of any felon.

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

Attorney General Opinions. Extent of municipal police authority beyond municipal limits.  OAG 10-48, 2010 Tenn. AG LEXIS 48 (4/12/10).

NOTES TO DECISIONS

1. Applicability.

T.C.A. § 39-11-620 did not apply in a civil action arising from a deputy sheriff's fatal wounding of a mentally disturbed person. Thompson v. Williamson County, 965 F. Supp. 1026, 1997 U.S. Dist. LEXIS 7491 (M.D. Tenn. 1997), aff'd, 219 F.3d 555, 2000 FED App. 233P, 2000 U.S. App. LEXIS 16679 (6th Cir. Tenn. 2000).

39-11-621. Use of deadly force by private citizen.

A private citizen, in making an arrest authorized by law, may use force reasonably necessary to accomplish the arrest of an individual who flees or resists the arrest; provided, that a private citizen cannot use or threaten to use deadly force except to the extent authorized under self-defense or defense of third person statutes, §§ 39-11-611 and 39-11-612.

Acts 1989, ch. 591, § 1.

Sentencing Commission Comments.

Tennessee law allows a private citizen acting upon his or her own initiative to arrest for any public offense committed in the citizen's presence, when the person arrested has committed a felony, or where a felony has been committed and the citizen has reasonable cause to believe the person arrested committed it. § 40-7-109. A citizen who makes an arrest for an offense not committed in the citizen's presence acts at his or her peril. This section implements the arrest laws by permitting the citizen to use reasonable force to effectuate the arrest.

It was the consensus of the commission that use of deadly force by private citizens in effecting arrests should be prohibited except to the extent it would be justifiable as self defense or defense of others under this part. See §§ 39-11-611 and 39-11-612.

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

Attorney General Opinions. Retaliation by gang members subjected to armed attack, as stated in proposed SB1316 to SB2167 on 3/16/98, OAG 99-009 (1/25/99).

The use of handcuffs or restraining devices is permissible by private persons and security guards provided it is reasonably necessary to accomplish an arrest, OAG 03-018 (2/19/03).

39-11-622. Justification for use of force — Exceptions — Immunity from civil liability.

    1. A person who uses force as permitted in §§ 39-11-611 — 39-11-614 or § 29-34-201, is justified in using such force and is immune from civil liability for the use of such force, unless:
      1. The person against whom force was used is a law enforcement officer, as defined in § 39-11-106 who:
        1. Was acting in the performance of the officer's official duties; and
        2. Identified the officer in accordance with any applicable law; or
        3. The person using force knew or reasonably should have known that the person was a law enforcement officer; or
      2. The force used by the person resulted in property damage to or the death or injury of an innocent bystander or other person against whom the force used was not justified.
  1. The court shall award reasonable attorney's fees, court costs, compensation for loss of income, and all expenses incurred by a person in defense of any civil action brought against the person based upon the person's use of force, if the court finds that the defendant was justified in using such force pursuant to §§ 39-11-611 — 39-11-614 or § 29-34-201.

Acts 2007, ch. 210, § 3.

Part 7
Disposition of Forfeited Property

39-11-701. Legislative intent.

  1. The general assembly finds and declares that an effective means of deterring criminal acts committed for financial gain is through the forfeiture of profits and proceeds acquired and accumulated as a result of such criminal activities.
  2. It is the intent of the general assembly to provide the necessary tools to law enforcement agencies and district attorneys general to punish and deter the criminal activities of professional criminals and organized crime through the unitary enforcement of effective forfeiture and penal laws. It is the intent of the general assembly, consistent with due process of law, that all property acquired and accumulated as a result of criminal offenses be forfeited to the state, and that the proceeds be used to fund further law enforcement efforts in this state.
  3. It is further the intent of the general assembly to protect bona fide interest holders and innocent owners of property under this part. It is the intent of the general assembly to provide for the forfeiture of illegal profits without unduly interfering with commercially protected interests.

Acts 1998, ch. 979, § 1.

Cross-References. Good faith purchase for value, § 47-2-403.

Racketeer-influenced and corrupt organizations, title 39, ch. 12, part 2.

Recovery barred for injuries suffered in attempting to commit a felony on property of another, § 29-34-201.

Secured transactions, title 47, ch. 9.

Value, definition, § 39-11-106.

Law Reviews.

Forfeitures Under the Tennessee Drug Control Act (Lewis L. Laska), 16 Mem. St. U.L. Rev. 431 (1986).

39-11-702. Part definitions.

As used in this part, unless the context otherwise requires:

  1. “Attorney general” means the district attorney general, and the district attorney general's assistants;
  2. “Interest holder” means a secured party within the meaning of § 47-9-102(a), a mortgagee, lien creditor, one granted a possessory lien under law, or the beneficiary of a security interest or encumbrance pertaining to an interest in property, whose interest would be perfected against a good faith purchaser for value. A person who holds property for the benefit of or as an agent or nominee for another person, or who is not in substantial compliance with any statute requiring an interest in property to be recorded or reflected in public records in order to perfect the interest against a good faith purchaser for value, is not an interest holder;
  3. “Owner” means a person, other than an interest holder, who has an interest in property. A person who holds property for the benefit of or as an agent or nominee for another person, or who is not in substantial compliance with any statute requiring an interest in property to be recorded or reflected in public records in order to perfect the interest against a good faith purchaser for value, is not an owner; and
  4. “Property” means anything of value, and includes any interest in property, including any benefit, privilege, claim or right with respect to anything of value, whether real or personal, tangible or intangible.

Acts 1998, ch. 979, § 2; 2000, ch. 846, § 25.

39-11-703. Criminal proceeds subject to forfeiture.

  1. Any property, real or personal, directly or indirectly acquired by or received in violation of any statute or as an inducement to violate any statute, or any property traceable to the proceeds from the violation, is subject to judicial forfeiture, and all right, title, and interest in any such property shall vest in the state upon commission of the act giving rise to forfeiture.
  2. Any real property, including any right, title and interest in the whole of or any part of any lot or tract of land and any property used as an instrumentality in or used in furtherance of a violation of the following laws shall be subject to judicial forfeiture:
    1. A conviction for a violation of § 39-17-417(i) or (j) or the commission of three (3) or more acts occurring on three (3) or more separate days within a sixty-day period, and each act results in a felony conviction under chapter 17, part 4 of this title; or
    2. The commission of three (3) or more acts occurring on three (3) or more separate days within a sixty-day period, and each act results in a conviction for promoting prostitution under chapter 13, part 5 of this title.
  3. The following items are subject to judicial forfeiture as provided in this part:
    1. Conveyances, including aircraft, motor vehicles, and other vessels when used or intended to be used in connection with a violation of §§ 39-13-307, 39-13-308 and 39-13-309 committed on or after July 1, 2011;
    2. Books, records, telecommunication equipment, or computers when used or intended to be used in connection with a violation of §§ 39-13-307, 39-13-308 and 39-13-309 committed on or after July 1, 2011;
    3. Money or weapons when used or intended to be used in connection with a violation of §§ 39-13-307, 39-13-308 and 39-13-309 committed on or after July 1, 2011;
    4. Real property when used or intended to be used in connection with a violation of §§ 39-13-307, 39-13-308 and 39-13-309 committed on or after July 1, 2011;
    5. Everything of value furnished, or intended to be furnished, in exchange for an act in violation of §§ 39-13-307, 39-13-308 and 39-13-309 committed on or after July 1, 2011, all proceeds traceable to the exchange, and all negotiable instruments and securities used, or intended to be used, to facilitate the violation;
    6. Any property, real or personal, directly or indirectly acquired by or received in violation of such violation or as an inducement to violate such statutes, or any property traceable to the proceeds from the violation; and
    7. Any real property, including any right, title and interest in the whole of or any part of any lot or tract of land and any property used as an instrumentality in or used in furtherance of a violation of §§ 39-13-307, 39-13-308 and 39-13-309 committed on or after July 1, 2011.
  4. In any in rem forfeiture action in which the subject property is cash, monetary instruments in bearer form, funds deposited in an account in a financial institution, or other like fungible property:
    1. It shall not be necessary for the state to identify the specific property involved in the offense that is the basis for the forfeiture action; and
    2. It shall not be a defense that the property involved in such an action has been removed and replaced by identical property.

Acts 1998, ch. 979, § 3; 2009, ch. 432, § 1; 2011, ch. 354, § 1.

Compiler's Notes. Acts 2011, ch. 354, § 3 provided that the act, which added subsection (c), shall apply to all applicable offenses committed on or after July 1, 2011.

NOTES TO DECISIONS

1. Burden of Proof.

Trial court properly ordered forfeiture of the $1,098,050 cash seized when a search warrant was executed. The State satisfied its burden of establishing by a preponderance of the evidence that the cash was subject to forfeiture based on defendant's conspiracy convictions arising from 2012 drug trafficking activities. State v. Tuttle, 515 S.W.3d 282, 2017 Tenn. LEXIS 190 (Tenn. Apr. 5, 2017).

39-11-704. Property exempt from forfeiture.

  1. No interest in any property described in § 39-11-703(a) shall be subject to forfeiture when one (1) of the following conditions is established:
    1. If the owner or interest holder acquired the property before the conduct alleged to give rise to its forfeiture;
    2. If the owner or interest holder acquired the property during or after the conduct alleged to give rise to its forfeiture, and the owner or interest holder acquired this interest as a good faith purchaser for value, or acquired this interest in a commercially reasonable manner, and the owner or interest holder:
      1. Acted reasonably to prevent the conduct giving rise to forfeiture; or
      2. Did not know of the acts giving rise to forfeiture.
  2. No interest in real or personal property shall be forfeited under § 39-11-703(b), unless the owner or interest holder is convicted of a crime or crimes described in § 39-11-703(b). If the owner or interest holder is an entity other than a natural person, the property shall not be forfeited unless the entity's officer, employee or agent is convicted of the crime or crimes under § 39-11-703(b) and the state shall also have the burden to establish beyond a reasonable doubt the following additional elements:
    1. The conviction is based on acts by the defendant in the course of and within the scope of the defendant's employment; and
    2. The entity knew or had reason to know from information in the entity's possession, other than through its convicted officer, employee or agent, of the criminal nature of the acts.
  3. The state may stipulate that the interest of an owner or interest holder is exempt from forfeiture upon presentation of proof of the claim. The state shall file the stipulation with the court exercising jurisdiction over the forfeiture action and the filing of stipulation shall constitute an admission by the state that the interest is exempt from forfeiture. If a stipulation is submitted, then no further claim, answer or pleading shall be required of the stipulated owner or interest holder, and a judgment shall be entered exempting that interest from forfeiture.
  4. If equipment and fixtures are seized while in possession of someone other than the owner, or are on premises that are padlocked and the owner of the equipment and fixtures has no interest in the padlocked premises, then the owner may obtain return of the equipment and fixtures, if the owner:
    1. Did not know of the act giving rise to forfeiture; or
    2. Acted reasonably to prevent the conduct giving rise to forfeiture.

Acts 1998, ch. 979, § 4; 2009, ch. 432, §§ 2, 3.

Cross-References. Good faith purchase for value, § 47-2-403.

Value, definition, § 39-11-106.

NOTES TO DECISIONS

1. Applicability.

Plain reading of the exemptions contained in T.C.A. § 39-11-704 indicate that they apply not to the question of standing, but the question of whether property may ultimately be forfeited to the State. Indeed, from the Court of Appeals of Tennessee, at Jackson's, reading of § 39-11-704, these exemptions apply even if the State complied with all other procedural requirements applicable to justify the forfeiture. The exemptions do not, however, place additional requirements on claimants to assert that the forfeiture of their property was inappropriate because the State failed to strictly comply with the procedural and substantive requirements of the forfeiture statutes at issue. In re Tenn. Walking Horse Forfeiture Litig., — S.W.3d —, 2017 Tenn. App. LEXIS 588 (Tenn. Ct. App. Aug. 31, 2017).

39-11-705. Jurisdiction and venue.

  1. Jurisdiction in a civil forfeiture action under this part extends to the chancery and circuit courts of this state, and general sessions courts for personal property where the value of personal property subject to forfeiture does not exceed the jurisdictional limits of the court, over the following:
    1. All interests in property if the property for which forfeiture is sought is within this state at the time the action is filed; and
    2. The interest of an owner or interest holder in the property for which forfeiture is sought if the owner or interest holder is subject to the personal jurisdiction of the court.
  2. Jurisdiction in a criminal forfeiture action under this part extends to the circuit and criminal courts of this state, and general sessions courts for personal property where the value of personal property subject to forfeiture does not exceed the jurisdictional limits of the court and the state and defendant consent to the exercise of jurisdiction by the general sessions court. Jurisdiction over the interests of a third party who is not a defendant in the criminal prosecution must be exercised in a separate civil forfeiture action.
  3. In addition to any other provision of law, a proceeding for forfeiture under this part may be maintained in the judicial district in which any part of the property is found or in the judicial district in which a criminal prosecution could be maintained against an owner or interest holder for the conduct alleged to give rise to the forfeiture. Any court with jurisdiction pursuant to this section may issue and cause to be served in any other judicial district such process as may be required to bring before the court the property that is the subject of the forfeiture action.

Acts 1998, ch. 979, § 5; 2001, ch. 381, § 1.

Cross-References. Chancery courts, title 16, ch. 11.

Circuit and criminal courts, title 16, ch. 10.

General sessions courts, title 16, ch. 15.

Value, definition, § 39-11-106.

Venue, title 20, ch. 4.

39-11-706. Evidence.

In a forfeiture action under this part, pertaining to the issue of whether the property or proceeds were known to be from some form of criminal offense, either party may introduce evidence that:

  1. The property was involved in a financial transaction that was conducted or structured to evade the reporting requirements of any state or federal law;
  2. Money or any negotiable instrument was found in proximity to contraband or instrumentalities of an offense;
  3. The property was involved in a financial transaction that was conducted with the use of a false or fictitious name; and
  4. A financial transaction involving the property was structured so as to falsely report the actual consideration or value of the transaction.

Acts 1998, ch. 979, § 6.

39-11-707. Procedure for seizure of property.

  1. Any property subject to forfeiture under this part may be seized by the attorney general, the attorney general's agents, or any law enforcement officer, when acting pursuant to a lawful arrest or search, the execution of a search warrant, a petition to abate a nuisance, or a court order. When property is seized under this part, it may be removed by the seizing agency or official to a place to secure the property, it may be preserved as evidence, it may be padlocked as ordered by a court of record, it may be secured by depositing in an interest bearing account as approved by a court of record or it may be secured as otherwise authorized by law regarding the maintenance, storage, or disposition of seized property.
  2. Upon seizure of property for forfeiture under this part, the seizing agency or official shall cause to be delivered a written receipt and notice of seizure to the possessor, owner and interest holder as determined from public records. The notice shall list and describe generally the property seized, the agency or official responsible for the seizure and shall state the procedure for obtaining return of the property. The seizing agency shall deliver a copy of the notice to the district attorney general of the judicial district where the seizing agency is located or of the judicial district where the seizure occurred.
  3. Upon the seizure of personal property for forfeiture, the seizing agency shall within five (5) working days, apply ex parte for a forfeiture warrant from a judge authorized to issue a search warrant. Upon a finding that probable cause for forfeiture exists, a forfeiture warrant shall issue. The warrant shall be based upon proof by affidavit that there is probable cause that the owner's interest in the seized property is subject to forfeiture. In the event a forfeiture warrant is not issued, then the property shall immediately be returned unless the property is to be retained for evidence in a criminal proceeding. No forfeiture action for personal property may be filed without the issuance of a forfeiture warrant.
  4. No claim need be filed by an interest holder and no interest holder may have interest forfeited without service of a complaint for forfeiture under this part.
  5. The attorney general may file a notice of lien lis pendens against any real property subject to forfeiture under this part. The lien shall generally describe the real property and the reason for forfeiture. The notice shall specify the court and jurisdiction in which the action is pending and, if known at the time of the filing of the notice, the case number of the action. After the filing of the notice of lien lis pendens the state shall, as soon as is practicable, serve a copy of the notice upon any person who has a duly recorded interest in the property as reflected in public records.
  6. The filing of a notice of lien lis pendens under this part creates, from the time of its filing, a lien in favor of the state on the property described in the notice and subject to forfeiture under this part against the persons named in the notice.
  7. There shall be no seizure or attachment of real property unless and until a hearing is conducted, with due notice to the owner.
  8. A possessory lien of a person from whose possession property subject to forfeiture is seized is not affected or prejudiced by a seizure for forfeiture under this part. Such a lien shall take precedence over all other liens.
  9. A person who acts in good faith and in a reasonable manner to comply with an order of the court or a request of a peace officer while enforcing this part is not liable to any person for acts done in furtherance with the order or request.

Acts 1998, ch. 979, § 7.

Cross-References. Lis pendens, title 20, ch. 3.

Warrants, title 40, ch. 6.

NOTES TO DECISIONS

1. Notice Sufficient.

State provided sufficient proof that the detective complied with this section when he delivered the notice of seizure by certified mail to defendant where the detective explained the need to get an accurate count of the money at a bank prior to providing notice of the seizure to defendant, defendant did not claim that he did not receive the notice of the seizure, and the record showed that he had sufficient time to file a pretrial motion to dismiss the forfeiture and to challenge the forfeiture of the funds in a post-trial hearing. State v. Tuttle, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 725 (Tenn. Crim. App. Sept. 8, 2015), rehearing denied, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 806 (Tenn. Crim. App. Oct. 5, 2015), aff'd in part, rev'd in part, 515 S.W.3d 282, 2017 Tenn. LEXIS 190 (Tenn. Apr. 5, 2017).

In a case in which defendant challenged the trial court's order of forfeiture of $1,098,050 cash, the notice of seizure provided defendant by certified mail satisfied statutory requirements. State v. Tuttle, 515 S.W.3d 282, 2017 Tenn. LEXIS 190 (Tenn. Apr. 5, 2017).

In a forfeiture case, a claimant's argument that there was a due process violation was rejected because the record showed that she received the required notice; when police took possession of the property, the claimant was served with a copy of the notice of seizure, which included the information required. When the officers obtained forfeiture warrants for personal property, the State filed a notice of lien lis pendens with the clerk's office with regard to the real property seized. The claimant received notice and elected not to file a claim. In re Property of Miles, — S.W.3d —, 2017 Tenn. App. LEXIS 46 (Tenn. Ct. App. Jan. 27, 2017), appeal denied, In re Miles, — S.W.3d —, 2017 Tenn. LEXIS 292 (Tenn. May 19, 2017).

39-11-708. Procedure for judicial forfeiture of property.

  1. If real or personal property is subject to forfeiture under this part, the attorney general may initiate an in rem forfeiture proceeding in the circuit, chancery, or general sessions court of the county where the property is located or where the conduct giving rise to forfeiture occurred. If the property is beyond the jurisdiction of the court, the attorney general may initiate an in personam action against the owner or interest holder if the owner or interest holder is subject to the jurisdiction of the court. The complaint shall state a description of the property to be forfeited and the reasons for forfeiture under this part.
  2. If personal property is sought to be forfeited, the complaint shall state the date the forfeiture warrant was issued. However, no complaint shall be dismissed for defects or insufficiencies in the forfeiture warrant. The complaint shall be served by registered mail at the last known address of the owner, if known, or the person in possession at the time of seizure. In the event the owner or possessor of the property does not answer the complaint, the state may move for a default judgment. An interest holder shall, however, be served with the complaint for forfeiture prior to any disposition of the property.
  3. The court shall proceed as soon as practicable to a hearing and determination of the issue of forfeiture. The state shall notify the appropriate state official or commissioner as to the pendency of the judicial forfeiture action when such property is pending administrative forfeiture action. The filing of a complaint under this section shall operate as a stay of any pending administrative forfeiture proceedings. The state shall have the burden to prove by a preponderance of the evidence that the property is subject to forfeiture under this part and that one (1) or more acts described in § 39-11-703 giving rise to forfeiture occurred after June 27, 1998, regardless of when the property was originally acquired, as long as the owner's interest in the property appreciated following the commission of an act giving rise to forfeiture. The forfeiture action shall be commenced within five (5) years after the conduct giving rise to forfeiture terminates or the cause of action accrues, whichever is later. Any party who claims an interest in the property subject to forfeiture must first establish by a preponderance of the evidence that the party is an owner or interest holder in the property seized before other evidence is taken. The claimant has the burden of establishing standing to assert the claim. Notwithstanding any other law, no other claims, pendent claims or counterclaims may be filed in an action for forfeiture under this part.
  4. If real or personal property of a criminal defendant is to be forfeited as part of a criminal prosecution, the indictment or information must contain notice in a separate count that the state will seek forfeiture of property under this part and all property subject to forfeiture must be generally described within the separate count. By agreement of the state and the defendant, a general sessions court may enter upon the judgment of the case that the property is to be forfeited or returned. The state shall establish by a preponderance of the evidence that the property is subject to forfeiture under this part. If the forfeiture count includes property described in § 39-11-703(a) the state shall establish that one (1) or more acts described in § 39-11-703(a) giving rise to forfeiture occurred after June 27, 1998, regardless of when the property was originally acquired, as long as the defendant's interest in the property was acquired or appreciated following the commission of an act giving rise to forfeiture. If the forfeiture count includes property described in § 39-11-703(b), the state shall establish that the property was used as an instrumentality in or used in furtherance of a violation of the law described in § 39-11-703(b). As soon as practicable after entering a guilty verdict or accepting a plea of guilty or nolo contendere on any count in an indictment, presentment, or information with regard to which criminal forfeiture is sought, the court shall determine whether the state has established that the property is subject to forfeiture. The court's determination may be based on evidence already in the record, including any written plea agreement, or if forfeiture is contested on evidence or information presented by the parties at a sentencing hearing. Upon the request by the state or the defendant in a case in which a jury returns a verdict of guilty, the jury shall determine in a bifurcated hearing whether the state has established that the property is subject to forfeiture. The state and defendant may introduce evidence at the forfeiture hearing. If the jury or court finds that the state has met its burden of proof from all the evidence in the case, then each property determined to be subject to forfeiture shall be designated in a special verdict and forfeited in accordance with this part. The criminal forfeiture action shall be charged within five (5) years after the conduct giving rise to forfeiture terminates. If a third party who is not a defendant in the criminal action has an interest in any of the property described in the criminal forfeiture count of the indictment or information, then the state shall determine the rights of the third party in a separate civil forfeiture action under this part.
  5. If the forfeiture count includes property described in § 39-11-703(a), a rebuttable presumption exists that the property of any person is subject to forfeiture, if the state establishes all of the following:
    1. The conduct giving rise to forfeiture occurred;
    2. The person acquired the property during the period of the conduct giving rise to forfeiture or within a reasonable time after that period; and
    3. There is no likely source for the property other than the conduct giving rise to forfeiture.
  6. Property subject to forfeiture may be located in any county or state. Upon a finding by the court that the evidence establishes that the property is subject to forfeiture, the judge shall enter a judgment of forfeiture of all property subject to forfeiture and shall order that title to the property be vested in the state of Tennessee from the date that the conduct that gave rise to the forfeiture occurred, subject to any exemptions provided for in this part.
  7. Upon entry of the judgment of forfeiture and the recording of the judgment in the county and state where the property is located, title to the property shall vest in the state and shall thereafter be disposed of as provided for in §§ 39-11-713 and 39-11-714. If the property cannot be located or is beyond the jurisdiction of the court, the court shall enter a judgment against the owner equal to the value of the property ordered to be forfeited. The court may use its contempt powers to enforce any orders of forfeiture of property located beyond the jurisdiction of the court, and other orders in furtherance of the purpose of this part.

Acts 1998, ch. 979, § 8; 2001, ch. 381, § 2; 2015, ch. 180, §§ 1, 2.

Cross-References. Burden of proof, title 39, ch. 11, part 2.

Certified mail in lieu of registered mail, § 1-3-111.

Contempt, § 16-1-103.

Contempt of court, title 29, ch. 9.

Indictment or presentment, § 40-3-102.

Indictments, generally, title 40, ch. 13.

Limitation of actions, title 28.

Remedies to recover personal property, title 29, ch. 30.

Value, definition, § 39-11-106.

NOTES TO DECISIONS

1. Premature Sale.

Premature sale of petitioner's property violated T.C.A. § 39-11-708(c), but did not deprive the Tennessee Department of Safety of jurisdiction, although had petitioner prevailed in the forfeiture proceedings, petitioner would have had a claim against the Department under T.C.A. § 40-33-215 for the wrongful deprivation of the property. Watson v. Tenn. Dep't of Safety, 361 S.W.3d 549, 2011 Tenn. App. LEXIS 535 (Tenn. Ct. App. Sept. 30, 2011), appeal denied, Watson v. State Dep't of Safety, — S.W.3d —, 2012 Tenn. LEXIS 80 (Tenn. Feb. 15, 2012).

2. Statute of Limitations Tolled.

Money seized from defendant was not barred from forfeiture by the five-year statute of limitations where, based on his overt acts, and because the cash was minted prior to 2002 and found in a dirt-covered ammo can on defendant's property, it was conceivable that he accumulated and concealed the money from his 2002 offense and therefore the State was unable to pursue the claim in a timely manner through no fault of their own. State v. Tuttle, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 725 (Tenn. Crim. App. Sept. 8, 2015), rehearing denied, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 806 (Tenn. Crim. App. Oct. 5, 2015), aff'd in part, rev'd in part, 515 S.W.3d 282, 2017 Tenn. LEXIS 190 (Tenn. Apr. 5, 2017).

In a case in which defendant challenged the court of criminal appeals'  adoption and application of the doctrine of equitable tolling to uphold a forfeiture of $1,098,050 cash, the Supreme Court concluded that the State satisfied its burden of establishing by a preponderance of the evidence that the cash was subject to forfeiture based on defendant's conspiracy convictions arising from his 2012 drug trafficking activities. State v. Tuttle, 515 S.W.3d 282, 2017 Tenn. LEXIS 190 (Tenn. Apr. 5, 2017).

39-11-709. Procedure for return of property seized.

  1. Only an owner or interest holder may make a claim for return of property seized for forfeiture or otherwise contest the forfeiture under this part. In the event of a seizure for forfeiture under this part, the property shall not be subject to replevin, conveyance, or attachment, but is deemed to be in the custody of the seizing agency or official.
  2. If after thirty (30) days from the date of the seizure of the property or the filing of a notice of lien lis pendens no administrative or civil forfeiture action has been initiated, the owner or interest holder may petition the court of record having criminal jurisdiction in the judicial district where the seizure occurred for return of the property seized or to have the notice of lien lis pendens released. The district attorney general having jurisdiction over the judicial district where the petition is filed shall be served with a copy of the petition. If no administrative or civil forfeiture action is commenced within thirty (30) days after the appropriate official has been served with the petition for return of property or release of lis pendens, then the court shall order the property be returned or the lien released.
  3. The order to return property or to release a lien shall not bar any action to forfeit the property in a future proceeding, but such property may not be seized nor lien filed against the property until such time as a forfeiture proceeding seeking forfeiture of the property has been filed. At any time subsequent to the seizure of the property by the seizing agency, the attorney general may direct the return of the seized property or release any lien filed upon a determination that forfeiture proceedings would be without merit.
  4. After the filing of a forfeiture action under this part, a claimant may file a motion with the court in which the action is pending for the state to show cause why the property, or any portion of the property, should not be returned or the lien released. The court shall conduct a hearing on the motion within twenty-one (21) days from the date such motion is filed. The claimant must first establish by a preponderance of the evidence that the claimant is an owner in the property seized before other evidence is taken. The claimant has the burden of establishing standing to assert the claim. If the claimant fails to establish standing to assert a claim, then the request shall be denied. If the state then proves that a probability of success on the merits of the forfeiture action exists, the court shall deny the request to return the property or release the lien. If the court finds that the state has failed to prove a probability of success on the merits of the forfeiture action, the court shall order that the property be returned or that the lien be released. If the state proves that a probability of success on the merits exists as to some portion of the property seized or upon which a lien is attached but not on other portions of the property, the court shall order that the portions upon which the state did not meet the burden of proof be returned or the lien released.

Acts 1998, ch. 979, § 9; 2015, ch. 180, §§ 3, 4.

Cross-References. Attachment and replevy, title 29, ch. 6.

Burden of proof, title 39, ch. 11, part 2.

Forfeiture of conveyances, title 40, ch. 33.

Lis pendens, title 20, ch. 3.

NOTES TO DECISIONS

1. Standing.

In an in rem forfeiture case, a claimant lacked standing, and she did not even file a claim or a motion asking the trial court to set a show cause hearing. Simply receiving notice of a forfeiture hearing did not establish standing. In re Property of Miles, — S.W.3d —, 2017 Tenn. App. LEXIS 46 (Tenn. Ct. App. Jan. 27, 2017), appeal denied, In re Miles, — S.W.3d —, 2017 Tenn. LEXIS 292 (Tenn. May 19, 2017).

T.C.A. § 39-11-709 contains the specific procedures for establishing standing. Nowhere in this statute is it stated that a finding that the claimant is innocent is required to establish standing to contest a forfeiture. Instead, the claimant must merely establish that he or she is an owner of the property. T.C.A. 39-11-709(d). Likewise, the definition of owner contained in the statute makes no mention of a requirement that the claimant establish his or her innocence. T.C.A. § 39-11-702(3). Because these statutes specifically govern the question of standing to contest a forfeiture, they control over the more general statute elucidating the General Assembly's intent in enacting the statutory scheme. In re Tenn. Walking Horse Forfeiture Litig., — S.W.3d —, 2017 Tenn. App. LEXIS 588 (Tenn. Ct. App. Aug. 31, 2017).

Trial court correctly concluded that the purported horse owners had standing to intervene in a forfeiture proceeding and contest a forfeiture where they were title-holders of the subject horses, nothing in T.C.A. § 39-11-709 required a finding that a claimant was innocent to establish standing to contest a forfeiture, and they had complied with the requirements of § 39-11-709. In re Tenn. Walking Horse Forfeiture Litig., — S.W.3d —, 2017 Tenn. App. LEXIS 588 (Tenn. Ct. App. Aug. 31, 2017).

Court of Appeals of Tennessee, at Jackson, cannot agree that a threshold showing of innocence is required to establish standing to contest a forfeiture under T.C.A. § 39-11-709. In re Tenn. Walking Horse Forfeiture Litig., — S.W.3d —, 2017 Tenn. App. LEXIS 588 (Tenn. Ct. App. Aug. 31, 2017).

T.C.A. § 39-11-709(a) and (d) make clear that to have standing to contest the forfeiture of property under the general forfeiture statutory scheme, the claimant must establish that he or she is an owner or interest holder in the subject property. In re Tenn. Walking Horse Forfeiture Litig., — S.W.3d —, 2017 Tenn. App. LEXIS 588 (Tenn. Ct. App. Aug. 31, 2017).

39-11-710. Rights of interest holders and owners.

  1. Nothing in this part shall limit or restrict the right of an interest holder in real property that was of record, prior to the filing of the notice of lien lis pendens, to enforce its deed of trust, or to take any other action permitted under its deed of trust as long as prior notice is given to the court and the attorney general who filed the notice in accordance with this section.
    1. Pending any proceeding to forfeit real property, an interest holder who desires to take action under the mortgage or deed of trust shall give notice to the attorney general who filed the lis pendens of any action to be taken under the mortgage or deed of trust.
    2. If the state has stipulated to the interest holder's exemption from forfeiture of its interest and a judgment has been entered, then the interest holder may proceed to foreclose, in accordance with its mortgage or deed of trust, subject to the approval or conditions of the court.
    3. When no judgment has been entered exempting the interest holder's interest from forfeiture, the interest holder may not exercise its right to foreclose its deed of trust on the property, unless it gives the official who filed the lis pendens written notice at least twenty (20) days prior to the date of a foreclosure sale and indicates the time, date and place of sale and the balance owing on the debt. Upon receipt of the notice of foreclosure the official who filed the lis pendens may petition the court where the forfeiture action is pending to require that the foreclosure sale be subject to the approval or conditions of the court. Upon notice to the interest holder, the court may grant the request and upon those conditions as it deems just.
  2. The court may enjoin any foreclosure sale when probable cause exists that the interest holder is a co-conspirator or accessory to the conduct giving rise to forfeiture.
  3. Upon completion of a foreclosure sale of real property pending forfeiture, the interest holder or the interest holder's trustee shall give written notice of the intended distribution of the proceeds of the sale to the official who filed the lis pendens. The interest holder shall deposit with the clerk of the court where the forfeiture action is pending all proceeds from the foreclosure sale in excess of the debt and fees and expenses secured by its deed of trust. If, however, the court has ordered that the sale be conducted under conditions or subject to the approval of the court, the interest holder shall file with the court proof under oath that those conditions were met and any proceeds of the sale ordered to be deposited with the clerk. If no objection is filed by the official who filed the lien lis pendens, then the court shall approve the sale and distribution of proceeds.
  4. Pending any proceeding to forfeit any personal property, an owner or interest holder may petition the court exercising jurisdiction over the forfeiture proceeding for possession of the property, unless the property is needed as evidence. The court shall permit the owner or interest holder to obtain possession of the property upon the execution of a bond in favor of the state of Tennessee and for payment of the appraised value of the property at the time of the hearing, the sureties for the bond to be approved by the court. The court shall, upon approval of the bond, permit the owner or interest holder to obtain possession of the property unless it is needed for evidence.
  5. If the state has filed a stipulation that an interest holder has an interest that is exempt from forfeiture, the court may release personal property for sale, to be leased, rented or operated, when the property used for collateral is depreciating in value or when justice dictates, and upon the posting of a bond to ensure compliance with this subsection (f), unless the property is needed for evidence. Upon the court's release for public sale or lease, the interest holder shall dispose of the property but only by a commercially reasonable public sale or lease and, within ten (10) days of disposition, shall deposit with the clerk of the court where the forfeiture action is pending the amount received at disposition, less the amount of the interest holder's encumbrance and reasonable expenses incurred by the interest holder in connection with the sale or disposal, including the costs of the bond. For purposes of this subsection (f), “commercially reasonable” is a sale or disposal that would be commercially reasonable under § 47-9-610.
  6. If an indictment, information, or arrest warrant is filed against an owner claiming return of property that is subject to a forfeiture action filed under this part and the criminal action alleges the same conduct as the conduct giving rise to forfeiture in a civil forfeiture proceeding, the court in the civil proceeding shall stay civil discovery against the criminal defendant and against the state until the defendant's criminal action is completed.

Acts 1998, ch. 979, § 10; 2000, ch. 846, § 26.

Cross-References. Foreclosure sale, § 21-1-803.

Injunction generally, title 29, ch. 23.

Injunction pending litigation, § 29-1-102.

Lis pendens, title 20, ch. 3.

Secured transactions, title 47, ch. 9.

Sureties on bonds, title 29, ch. 33.

39-11-711. Protection of seized property.

In the event there is probable cause to believe that any individual having a right to enter real property that is the subject of a forfeiture proceeding under this part is also engaged, or about to engage, in conduct that will result in the diminution of the value of the real property to the state, then the court in which the forfeiture is pending may grant injunctive relief enjoining any such action diminishing the value of the property, including the padlocking of the premises or the appointment of a receiver or any other appropriate extraordinary relief.

Acts 1998, ch. 979, § 11.

Cross-References. Extraordinary process, title 29, ch. 1.

Injunction, generally, title 29, ch. 23.

39-11-712. Sale of forfeited property.

  1. Whenever a judgment of forfeiture is rendered under this part, the court may authorize the attorney general to sell the property at public auction, subject to the orders and approval of the court. The court, in lieu of such sale, may order that the property be sold by any person having an interest in the real property whose interest has not been forfeited. The proceeds of the sale shall be subject to the orders of the court.
    1. If the court orders a property interest in property owned as tenants in common forfeited under this section to be sold, whether by a public official or by a person having an interest in the property as in subsection (a), the innocent spouse of a person whose property interest has been forfeited shall have the same right to the property interest as granted an innocent spouse in subdivision (b)(2) or (b)(3). If there is no spouse or if the spouse does not elect to pursue the rights provided in subdivision (b)(2) or (b)(3), then any other person or persons whose interest in the property has not been forfeited shall have the first right to purchase the forfeited interest for its fair market value prior to the court ordered sale. In order to exercise the first right to purchase, the person or persons must petition the appropriate circuit or criminal court at least thirty (30) days prior to the date the court ordered sale is to be conducted. If the person or persons do not purchase the forfeited property, the sale shall be conducted as provided by law. For the purposes of this subdivision (b)(1), “fair market value” is determined by taking an average of three (3) appraisals conducted by separate and qualified real estate appraisers selected by the court. Before any such purchase, the court shall approve the average of the appraisals for fair market value as reasonable.
      1. Notwithstanding subdivision (b)(1) to the contrary, if a court orders property forfeited under this section pursuant to subsection (a) and the property is held through tenancy by the entirety and one spouse's interest is not forfeited, then that spouse shall have the first right to purchase the forfeited expectancy interest in the property.
      2. A spouse purchasing the forfeited property interest in the manner specified in subdivision (b)(2)(A) shall take the property subject to all bona fide liens on the property. In order to exercise the right of purchase, the spouse shall petition the court that ordered the forfeiture for the purchase at fair market value at least fifteen (15) days prior to the court ordered sale.
      3. If the spouse does not purchase the forfeited expectancy interest, the spouse shall retain that spouse's interest as a tenant in common subject to all bona fide liens, and the forfeited expectancy interest shall be sold at public auction and the proceeds disbursed as provided for in § 39-11-713.
      4. If a party possessing a security interest in property being held by an innocent spouse institutes proceedings pursuant to its deed of trust or otherwise that results in the foreclosure and sale of the property, the innocent spouse shall be entitled to receive from the first proceeds of the sale an amount equal to an elective share as provided in § 31-4-101, subject to bona fide outstanding liens not satisfied by the remainder of the proceeds.
      5. If the innocent spouse predeceases the defendant spouse, if there are children of the innocent and guilty spouses, at least one (1) of whom is eighteen (18) years of age or younger on the date of the sale, and if the entity holding the right of expectancy is the state, then upon the sale of the property, one third (1/3) of the proceeds from the sale shall be allocated and divided equally among all the children, subject to all outstanding bona fide liens not satisfied by the remainder of the proceeds.
      1. Notwithstanding subdivision (b)(1) to the contrary, if the property subject to forfeiture under this section is property titled solely in the name of a guilty spouse or titled in the name of the guilty spouse as tenants in common with any other person or persons, the innocent spouse may petition the court, at least thirty (30) days prior to the court ordered forfeiture sale, to have the court vest the ownership of the property in the couple as tenants by the entirety; and the innocent spouse shall have the same rights as provided in subdivision (b)(2). If the petition is timely filed, it shall be granted.
      2. The filing of the petition shall act as a stay of any court ordered sale of the property and the stay shall remain in effect until disposition is made of the petition.
      3. If the innocent spouse does not petition the court to vest the property ownership in the couple as tenants by the entirety, then the property shall be forfeited and disposed of as provided by this section.

Acts 1998, ch. 979, § 12; 2009, ch. 432, § 4.

39-11-713. Disposition of forfeited property.

  1. All property ordered forfeited shall be sold at public auction. The proceeds from all property forfeited and sold at public auction shall be disposed of by the court as directed by this part. The attorney general shall first be compensated for all expenses incident to the litigation, as approved by the court. Any such costs for appeals shall be provided for by the trial court upon conclusion of the litigation. The attorney general shall then direct that any public agency be reimbursed for out-of-pocket expenses resulting from the investigation, seizure and storage of the forfeited property. If any property seized and ordered forfeited was taken from the lawful owner through theft or fraud, then the property shall be returned to the lawful owner, or restitution provided, as the court determines.
  2. The court shall then award the remainder of the funds as follows:
    1. In the event that the investigating and seizing agency is a state agency, the funds shall be distributed to the state general fund;
    2. In the event that the investigating and seizing agency is the Tennessee bureau of investigation, or in the event that the office of inspector general participates in the investigation, seizure, or prosecution, then, the funds shall be distributed to the state treasurer, who shall deposit the funds in a designated account for the agency to be used in its operations; provided, that, if more than one (1) state agency participated in the investigation or seizure as certified by the prosecuting attorney, then the court shall order a distribution according to the participation of each;
    3. In the event that the investigating and seizing agency is a local public agency, then the funds shall be distributed to its local government, when, upon ratification of this part by the local governing body of a municipality, metropolitan government or county governing body by ordinance or resolution, the municipality, metropolitan government or county has authorized the receipt of the distributed funds and has designated how the funds are to be distributed, which shall be designated for law enforcement, and the court shall make the award and distribution consistent with such ordinance or resolution by the local governing body. When more than one (1) local public agency participated in the investigation and seizure of forfeited property as certified by the attorney general, then the court shall order a distribution according to the participation of each local public agency. Accounting procedures for the financial administration of such funds shall be in keeping with those prescribed by the comptroller of the treasury; or
      1. In any matter concerning or arising out of TennCare fraud or abuse that is or may be the subject of a proceeding pursuant to this part, the district attorney general may specially appoint the following persons to prepare, initiate, and conduct such proceedings as the district attorney general is authorized by law to conduct pursuant to this part:
        1. Upon consent of the commissioner of finance and administration or the commissioner's designee, a licensed attorney employed by the department of finance and administration;
        2. Upon consent of the director of the Tennessee bureau of investigation or the director's designee, a licensed attorney employed by the Tennessee bureau of investigation; or
        3. Upon the consent of the chief executive officer of any governmental agency, a licensed attorney employed by that agency.
      2. The acts of an attorney acting for the district attorney general pursuant to this subdivision (b)(4) shall be valid as if done by the district attorney general, and there shall be no requirement that the district attorney general be disqualified from acting or that there be a vacancy in the office. Nor shall the district attorney general or any of the district attorney general's assistants be compelled to attend court proceedings in the matters in which an attorney is acting for the district attorney general pursuant to this subdivision (b)(4); provided, that the district attorney general or any of the district attorney general's assistants may be in attendance, and participate, if the district attorney general so desires. The authority to make such appointments extends to all proceedings brought under this part, whether civil or criminal.
  3. For purposes of this section, a local public agency includes any county or municipal law enforcement agency or commission, any judicial district drug task force established under state law, the district attorney general, or any local department or agency of local government authorized by the attorney general to participate in the investigation.
  4. Funds awarded under this section may not be used to supplement salaries of any public employee or law enforcement officer. Funds awarded under this section may not supplant other local or state funds.

Acts 1998, ch. 979, § 13; 2005, ch. 474, §§ 23-25.

Compiler's Notes. Subdivision (b)(3) is set out above as enacted by Acts 1998, ch. 979, § 13. There are no provisions in the act for ratification of the act by local or county governing bodies.

Acts 2005, ch. 474, § 28 provided that:

“To effectuate the provisions of this act, the commissioners of finance administration, commerce and insurance, and health, for the respective sections of this act that their departments are responsible for implementing, shall