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 [Repealed.]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 ed.), §§ 39-104, 39-105), concerning penalties, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989.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Accessories [Repealed]

39-2-201 — 39-2-235. [Repealed.]

Compiler's Notes. Former part 2, §§ 39-2-201 — 39-2-235 (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 ed.), §§ 39-2401 — 39-2414, 39-3602), concerning homicide, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989.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Kidnapping and Hostages [Repealed]

39-3-201 — 39-3-227. [Repealed.]

Compiler's Notes. Former part 2, §§ 39-3-201 — 39-3-226 (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39-504 — 39-514, 39-518, 39-5106 — 39-5108, 39-5110, 39-5111, 39-5113, 39-5114), concerning arson and burning, was repealed by Acts 1989, ch. 591, § 1, effective November 1, 1989.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Former § 39-3-227 (Acts 1963, ch. 80, § 1; T.C.A., § 39-2215), concerning false alarms, was repealed by Acts 1983, ch. 329, § 2.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Bad Checks [Repealed]

39-4-201 — 39-4-208. [Repealed.]

Compiler's Notes. Former part 2, §§ 39-4-201 — 39-4-208 (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]

39-5-201, 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]

39-6-201 — 39-6-216. [Repealed.]

Compiler's Notes. Former part 2, §§ 39-6-201 — 39-6-216 (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]

NOTES TO DECISIONS

1. Application.

Attempt to commit felony murder does not exist as an offense in Tennessee. State v. Kimbrough, 924 S.W.2d 888, 1996 Tenn. LEXIS 363 (Tenn. 1996).

Crime of attempted extortion exists in Tennessee because the crime of extortion does not include every attempt to complete the crime. Parris v. State, 236 S.W.3d 173, 2007 Tenn. Crim. App. LEXIS 241 (Tenn. Crim. App. Mar. 15, 2007).

Defendant's conviction for attempted aggravated rape was not barred by the statute of limitations, T.C.A. § 40-2-101(b)(1)-(2), because the John Doe arrest warrant and DNA profile commenced the prosecution against defendant in a timely fashion and tolled the statute of limitations until he was identified and apprehended; a John Doe warrant coupled with a DNA profile of an unknown suspected offender obtained before the expiration of the applicable statute of limitations may validly commence a criminal prosecution and toll the statute of limitations. State v. Burdick, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 886 (Tenn. Crim. App. Dec. 2, 2011), aff'd, 395 S.W.3d 120, 2012 Tenn. LEXIS 903 (Tenn. Dec. 18, 2012).

2. —Attempted Child Abuse.

Record did not justify the district court's conclusion that defendant's prior conviction was for a crime of violence within the meaning of U.S. Sentencing Guidelines Manual § 4B1.2 after defendant was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g); the district court erred in failing to consider only the charges in an indictment for aggravated child abuse under T.C.A. § 39-15-402 that were essential to the offense to which defendant pled guilty, which was attempted child abuse under T.C.A. § 39-12-101 and T.C.A. § 39-15-401, in finding that the prior conviction was a crime of violence. United States v. Armstead, 467 F.3d 943, 2006 FED App. 412P, 2006 U.S. App. LEXIS 27379 (6th Cir. Tenn. 2006).

Evidence that defendant placed a pillow over the victim's face while admonishing him, “I'm not going to hear this,” dropped the pillow when she saw the sitter watching her, and fled to the bathroom was sufficient for a rational jury to conclude that defendant was acting with the intent to cause serious bodily injury to the victim and took a substantial step as required for attempted aggravated child abuse. State v. Hammers, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 545 (Tenn. Crim. App. July 26, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 947 (Tenn. Dec. 14, 2016).

3. —Attempted Murder.

Evidence was sufficient to support conviction for attempted second-degree murder. State v. Freeman, 943 S.W.2d 25, 1996 Tenn. Crim. App. LEXIS 606 (Tenn. Crim. App. 1996).

An attempt to commit second degree murder is a criminal offense in Tennessee. State v. Palmer, 10 S.W.3d 638, 1999 Tenn. Crim. App. LEXIS 663 (Tenn. Crim. App. 1999).

Because the jury could have found that the defendant's conduct was reasonably certain to cause the victim's death, that the defendant was not acting in self-defense, and that the defendant intended to kill the victim based upon the use of a deadly weapon and the seriousness of the wounds inflicted, the evidence was sufficient to support the verdict of attempted second degree murder. State v. Inlow, 52 S.W.3d 101, 2001 Tenn. Crim. App. LEXIS 40 (Tenn. Crim. App. 2001).

Evidence that the victims arrived at defendant's house, defendant came outside with a gun, defendant shot at the unarmed victims, and police arrived to find defendant holding the weapon was sufficient to support defendant's convictions for first degree premeditated murder and attempted first degree premeditated murder. 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).

Evidence that defendant held a gun to the male victim's head and told him to get out of the car and began shooting when the victim pushed the gun away, was sufficient to support defendant's conviction for attempted first degree murder. State v. Holmes, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 182 (Tenn. Crim. App. Mar. 11, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 438 (Tenn. June 23, 2016).

Evidence supported defendant's convictions for attempted first degree premeditated murder because defendant's motive for the shooting in believing that one of the people in a house was responsible for someone breaking into defendant's car and taking defendant's property, defendant's procurement of a weapon from defendant's car and loading it, defendant's repeated use of the weapon by firing it into the house despite not being in immediate danger, and defendant's concealment of the weapon after the shooting supported a finding of premeditation. State v. Moates, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 195 (Tenn. Crim. App. Mar. 16, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 545 (Tenn. Aug. 18, 2016).

Court rejects as inapplicable any theory of transferred intent; the question remains, however, whether a wayward single-shot scenario that results in no injuries may ever result in multiple convictions for attempt to commit a murder, and such a question is resolved by analyzing the circumstances of each given case. 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).

Conviction for the attempted second degree murder of one victim was affirmed, as she was standing visibly in the window and made eye contact with defendant before he fired the shot. 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).

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 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), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 212 (Tenn. Apr. 19, 2018).

Evidence supported defendant's conviction for attempted second degree murder because the victim and eyewitnesses testified that the victim was standing on the sidewalk by the street with the victim's back to defendant and was unarmed when defendant crossed the street, called to the victim, and shot the victim as the victim was turning around. The victim and the eyewitnesses all testified that neither the victim, nor the victim's family had approached or yelled at defendant immediately prior to the shooting and that they were all unarmed. 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).

Evidence supported defendant's conviction for attempted first-degree murder because defendant, who was upset over the fact that the victim, defendant's estranged spouse, had introduced their children to the v's paramour, located the victim's residence using a computer search, drove to the house, parked and started walking to the house, returned to the vehicle and retrieved a large knife, confronted the victim at the door of the house, stabbed the victim twice with the knife, returned to defendant's car, and left the scene. State v. Taylor, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 489 (Tenn. Crim. App. June 29, 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 that defendant intended to take a vehicle and shot at the victim after he did not comply with defendant's demand for the vehicle's keys, the pistol misfired, the victim ran and defendant kept shooting, and the victim was wounded twice and a second victim was wounded once was sufficient for the jury to find defendant committed attempted first-degree premeditated murder. State v. Grimes, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 829 (Tenn. Crim. App. Nov. 7, 2018), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 132 (Tenn. Feb. 20, 2019).

Evidence was sufficient to support defendant's conviction for attempted first degree murder (resulting in serious bodily injury), because the evidence showed 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).

Evidence was sufficient to support defendant's conviction of attempted second degree murder, as he repeatedly stabbed the unarmed victim in the neck, back, shoulders, and abdomen, and while stabbing her, defendant said he was going to teach her a lesson. The victim underwent surgery and was unable to care for herself for months, and thus the jury could have found that defendant acted with the intent to cause the knowing killing of the victim, believing his conduct would cause her death without further conduct on his part. State v. Walls, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 374 (Tenn. Crim. App. June 27, 2019).

Evidence that defendant, by his own admission, was in the middle of a heated argument with the victim when he went to the closet, retrieved his gun, turned, and fired multiple shots directly at her was sufficient to support his conviction for attempted second degree murder. State v. Dean, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 267 (Tenn. Crim. App. Apr. 17, 2020).

Testimony that defendant drove the vehicle from which two weapons fired multiple gunshots and evidence that three victims were shot and one died from her wounds permitted the jury to infer defendant knew that firing a gun at the home which he knew to be filled with people could have resulted in any of their deaths and thus supported defendant's convictions for second-degree murder, attempted second-degree murder, and possession of a firearm during the attempt. State v. Parham, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 348 (Tenn. Crim. App. May 15, 2020), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 540 (Tenn. Sept. 18, 2020).

Evidence supported defendant's convictions for first degree premeditated murder and attempted first degree premeditated murder because 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).

5. —Attempted Robbery.

Attempted robbery count of indictment was sufficient where it alleged defendant employed violence, or placed the victim in fear, and that he used a deadly weapon. State v. Lewis, 36 S.W.3d 88, 2000 Tenn. Crim. App. LEXIS 253 (Tenn. Crim. App. 2000).

For purposes of T.C.A. §§ 39-12-101, 39-13-401, attempt to commit a robbery through violence or by putting a person in fear also includes a threat of bodily injury. 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).

Whether defendant succeeded in taking property from one victim was of no consequence in determining if he committed attempted aggravated robbery with respect to the other victims; the act of demanding money while pointing a gun at the victims was sufficient to convict defendant of attempted aggravated robbery. State v. Austin, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 758 (Tenn. Crim. App. Oct. 5, 2018).

Evidence supported defendant's conviction for attempted especially aggravated robbery because defendant and co-defendant trailed the victim in co-defendant's car with the intent to rob the victim, co-defendant stopped and approached the victim with a gun when the victim parked the victim's car and attempted to rob the victim, defendant fatally shot the victim in the head when the victim pulled out a gun, and co-defendant left the victim's purse behind and fled the scene with defendant in co-defendant's car. State v. Bowen, — S.W.3d —, 2021 Tenn. Crim. App. LEXIS 19 (Tenn. Crim. App. Jan. 12, 2021).

6. —Attempted Statutory Rape.

Where defendant stated that he wanted a young boy for “straight sex” and subsequently paid an undercover cop 200 dollars for an underage male, the defendant's conduct constituted a substantial step toward the commission of statutory rape. State v. Fowler, 3 S.W.3d 910, 1999 Tenn. LEXIS 564 (Tenn. 1999).

7. —Attempted Rape of a Child.

Evidence was sufficient to support defendant's conviction for attempted rape of a child because the victim testified that, after the victim refused defendant's requests to engage in sexual intercourse with defendant, defendant flipped the victim over onto the victim's stomach on a bed, removed the victim's pajama pants and underwear, placed Vaseline on defendant's erect penis, and repeatedly attempted to penetrate the victim with defendant's penis from behind. State v. Black, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 857 (Tenn. Crim. App. Sept. 21, 2017).

Evidence was sufficient to convict defendant of attempted rape of a child because defendant sent text messages to the nine-year-old victim asking when she wanted to have sex with him; a detective began posing as the victim; defendant messaged the victim to meet him at a specific location; when defendant arrived at the meeting location and was arrested, he had a tube of petroleum jelly, a condom, and an inflatable mattress in his car; and the State was only required to prove that defendant believed he was going to have sex with a child under the age of 13. State v. Holbrooks, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 674 (Tenn. Crim. App. Oct. 14, 2020).

Evidence that defendant, while naked, got on top of the victim and attempted to place defendant's erect penis inside the victims mouth. that the victim turned his head, declined, and told defendant he did not want to do this was sufficient to support defendant's attempted rape of a child conviction. State v. King, — S.W.3d —, 2021 Tenn. Crim. App. LEXIS 56 (Tenn. Crim. App. Feb. 22, 2021).

7.5 —Attempted reckless endangerment.

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).

8. Double Jeopardy.

Because aggravated assault and attempted voluntary manslaughter each required proof of a fact not required in proving the other, the offenses were not multiplicitous and defendant's dual convictions did not violate the prohibition against double jeopardy. 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).

Although defendant's convictions for attempted voluntary manslaughter and aggravated assault arose out of the same incident, each of those offenses contained numerous elements that the other did not, and there was no evidence that the General Assembly intended to prohibit multiple punishments in circumstances such as these, and thus double jeopardy did not preclude the dual convictions. State v. Feaster, 466 S.W.3d 80, 2015 Tenn. LEXIS 514 (Tenn. June 25, 2015).

After the appellate court reversed defendant's convictions for especially aggravated sexual exploitation of a minor, double jeopardy did not preclude retrial on charges of attempted especially production of child pornography, as the evidence was sufficient to support a conviction for the lesser offense. State v. Whited, 506 S.W.3d 416, 2016 Tenn. LEXIS 823 (Tenn. Nov. 7, 2016).

Defendant claimed that a conviction for both employment of a firearm during the commission of a dangerous felony and the predicate felony violated the principles of double jeopardy, but it was clear that the Legislature intended to permit multiple punishments, and defendant was not entitled to relief. State v. Pirtle, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 536 (Tenn. Crim. App. July 22, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 902 (Tenn. Nov. 22, 2016).

Although the offenses arose from the same act or transaction of defendant's act of putting a knife to the victim's throat and then dragging her 20-30 feet down a dark driveway toward a scrap yard, aggravated assault was not a lesser included offense of attempted aggravated kidnapping and the offenses were not the same for the purposes of double jeopardy as each crime contained an element that the other did not because attempted aggravated kidnapping required a specific intent to commit the crime of aggravated kidnapping, including a removal or confinement of the victim; and aggravated assault contained an element of fear and required the State to show that defendant caused the victim to reasonably fear imminent bodily injury. State v. Tittle, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 925 (Tenn. Crim. App. Oct. 23, 2017).

Although defendant's convictions of attempted rape and sexual battery arose out of the same transaction, defendant's dual convictions did not violate double jeopardy because the state supreme court had already determined that sexual battery was not a lesser-included offense of attempted rape; and the elements of the offenses are not the same; thus, the trial court committed plain error by merging the convictions for attempted rape and sexual battery. State v. Durham, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1031 (Tenn. Crim. App. Dec. 14, 2017).

Defendant's convictions for first degree felony murder, aggravated robbery, and attempted aggravated robbery were all based on discrete acts or involved multiple victims; therefore, they did not satisfy the threshold inquiry of the Blockburger test, and double jeopardy did not bar defendant's conviction for aggravated burglary along with his convictions for aggravated robbery and attempted aggravated robbery. State v. Austin, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 758 (Tenn. Crim. App. Oct. 5, 2018).

In denying defendant's petition for post-conviction relief, because especially aggravated robbery had to involve a theft, be accomplished with a deadly weapon, and result in serious bodily injury to the victim, but second-degree murder involved the intent to kill someone, separate convictions for especially aggravated robbery and attempted second-degree murder did not violate principles of double jeopardy, and trial counsel's failure to seek merger or appellate counsel's failure to argue such as error on appeal did not constitute deficient performance. Dickerson v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 398 (Tenn. Crim. App. June 9, 2020), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 483 (Tenn. Sept. 21, 2020).

Indictment charging defendants with attempted first degree murder was sufficient to protect defendants against double jeopardy even though it did not identify the victims because the indictments specified the day on which the shooting happened, specifically referenced the surveillance videos that captured the shooting on film, and specifically differentiated the victims by the clothing that they were wearing. If the victims were to come forward after the current prosecution had ended, the State and defendants would have enough information to determine that the victims were speaking of the same shooting, thereby precluding a second prosecution for the same offenses. State v. Bowen, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 454 (Tenn. Crim. App. June 30, 2020).

9. Indictment.

Indictment failing to allege that either of the defendants committed “an overt act in pursuance of the conspiracy” rendered all subsequent proceedings void, as a conviction upon a charge not made would be sheer denial of due process. State v. Perkinson, 867 S.W.2d 1, 1992 Tenn. Crim. App. LEXIS 747 (Tenn. Crim. App. 1992), appeal denied, — S.W.2d —, 1993 Tenn. LEXIS 35 (Tenn. Feb. 1, 1993).

An indictment charging an attempted crime must allege some overt act committed toward the commission of the offense. State v. Lewis, 36 S.W.3d 88, 2000 Tenn. Crim. App. LEXIS 253 (Tenn. Crim. App. 2000).

For purposes of T.C.A. § 40-13-202, the indictment for attempted first degree murder under T.C.A. §§ 39-12-101, 39-13-202 was legally sufficient, as the indictment referenced the murder statute, named the victim, and provided a time period during which the State alleged the offense occurred; although the indictment did not state the means by which the State alleged defendant committed the offense, such was not required in order to provide him with notice. State v. Fisher, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 847 (Tenn. Crim. App. Sept. 15, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 96 (Tenn. Feb. 14, 2018).

Indictment charging defendants with attempted first-degree murder was not insufficient for failing to name the victims because the identity of the victim was not an essential element of the offense. State v. Bowen, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 454 (Tenn. Crim. App. June 30, 2020).

Defendants'  argument that the Clark decision did not apply to the indictment charging them with attempted first-degree murder because a bill of particulars could not provide them with the names of the victims, as the State did not know who they were and could not provide them in a bill of particulars, was unavailing because a bill of particulars would be superfluous as the indictment provided the date and location of the offense, the clothing each victim was wearing, and identified the surveillance video that showed the exact conduct charged. State v. Bowen, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 454 (Tenn. Crim. App. June 30, 2020).

10. Election of Offenses.

Proof did not show multiple acts that could separately constitute the offense of attempted first degree murder under T.C.A. §§ 39-12-101, 39-13-202, and thus the trial court did not err in not ordering the State to provide an election; the State theorized that defendant embarked upon a course of conduct that collectively constituted the attempted first degree murder of his wife, and the State's response to the motion for a bill of particulars informed defendant of the course-of-conduct theory. State v. Fisher, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 847 (Tenn. Crim. App. Sept. 15, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 96 (Tenn. Feb. 14, 2018).

11. Lesser Included Offenses.

Tenn. Const., art. I, § 10, prohibiting double jeopardy, barred defendant's conviction for attempted voluntary manslaughter because the offense was a lesser included offense of aggravated assault. State v. Denton, 938 S.W.2d 373, 1996 Tenn. LEXIS 783 (Tenn. 1996), overruled, State v. White, 362 S.W.3d 559, 2012 Tenn. LEXIS 153 (Tenn. Mar. 9, 2012), overruled, State v. Watkins, 362 S.W.3d 530, 2012 Tenn. LEXIS 154 (Tenn. Mar. 9, 2012), overruled, State v. Dawson, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 271 (Tenn. Crim. App. May 2, 2012), overruled, State v. Brawner, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 269 (Tenn. Crim. App. May 3, 2012), overruled, State v. Buford, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 342 (Tenn. Crim. App. May 24, 2012), overruled, State v. Readus, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 736 (Tenn. Crim. App. Sept. 17, 2012), overruled, State v. Alston, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 460 (Tenn. Crim. App. May 30, 2013), overruled, State v. Hollins, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 1031 (Tenn. Crim. App. Nov. 25, 2013), overruled, State v. Ralph, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 1125 (Tenn. Crim. App. Dec. 23, 2013), overruled, Garrett v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 335 (Tenn. Crim. App. Apr. 10, 2014), overruled, State v. Davis, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 377 (Tenn. Crim. App. Apr. 21, 2014), overruled in part, State v. Isabell, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 743 (Tenn. Crim. App. July 28, 2014), overruled, State v. Hernandez, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 736 (Tenn. Crim. App. July 29, 2014), overruled, State v. Martin, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 97 (Tenn. Crim. App. Feb. 10, 2015), overruled, State v. Feaster, 466 S.W.3d 80, 2015 Tenn. LEXIS 514 (Tenn. June 25, 2015), overruled in part, State v. Itzol-Deleon, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 218 (Tenn. Crim. App. Mar. 28, 2016), overruled, State v. Freitas, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 762 (Tenn. Crim. App. Oct. 7, 2016), overruled, State v. Jernigan, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 197 (Tenn. Crim. App. Mar. 15, 2017), overruled in part, State v. Collins, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 384 (Tenn. Crim. App. May 16, 2017), overruled, Johnson v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 848 (Tenn. Crim. App. Sept. 15, 2017), overruled, State v. Steelman, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 936 (Tenn. Crim. App. Oct. 30, 2017).

Defendant's convictions for attempted aggravated rape and aggravated sexual battery did not merge where the proof in the case clearly and separately supported the convictions; nor were principles of double jeopardy and duplicity violated since the offenses required separate types of contact and proof of facts not used to prove the other. State v. Binion, 947 S.W.2d 867, 1996 Tenn. Crim. App. LEXIS 476 (Tenn. Crim. App. 1996).

Where evidence used to prove the offenses of attempted second degree murder and aggravated assault was the same, defendant's convictions for both offenses were the “same” for purposes of Tenn. Const., art I, § 10, prohibiting double jeopardy. State v. Hall, 947 S.W.2d 181, 1997 Tenn. Crim. App. LEXIS 63 (Tenn. Crim. App. 1997).

While attempted aggravated sexual battery is a lesser included offense of rape of a child under T.C.A. §§ 39-12-101(a), (b), and 39-13-504(a)(4) and there was sufficient information to raise the issue of attempt, the lack of that instruction did not result in plain error because there was testimony by the victim that she was touched by defendant and testimony by the mother of the compromising circumstances in which she found defendant and the victim. State v. Biggs, 218 S.W.3d 643, 2006 Tenn. Crim. App. LEXIS 654 (Tenn. Crim. App. 2006), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 1167 (Tenn. 2006).

Because the inmate affirmatively requested a jury instruction on the offense of aggravated assault, even though he was in error in believing that it was a lesser-included offense of attempted first-degree murder, he effectively agreed to amend the indictment to include aggravated assault; therefore, the trial court had jurisdiction to convict the inmate of aggravated assault, his conviction was not void, and he was not entitled to habeas corpus relief. Demonbreun v. Bell, 226 S.W.3d 321, 2007 Tenn. LEXIS 452 (Tenn. May 8, 2007), rehearing denied, — S.W.3d —, 2007 Tenn. LEXIS 529 (Tenn. May 25, 2007).

Defendant was not entitled to a jury instruction on attempted especially aggravated kidnapping as a lesser-included offense of especially aggravated kidnapping, because the evidence showed defendant placed the victim in a chokehold while pointing a gun to her head, forced her into the kitchen, and shot her during a struggle; thus, the kidnapping was completed and there was no attempt. State v. Fusco, 404 S.W.3d 504, 2012 Tenn. Crim. App. LEXIS 994 (Tenn. Crim. App. Dec. 6, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 360 (Tenn. Apr. 11, 2013).

Because criminal attempt is available as a lesser-included offense of any charged offense in every case in which the charged offense has a requisite intent element, and in which the proof has fairly raised the completed offense, the trial court did not err by including the attempt charge in its jury instruction in defendant's case charging him with sexual battery by an authority figure as the offense had a requisite intent element, and the proof fairly raised the issue of the charged offense. State v. Thorpe, 463 S.W.3d 851, 2015 Tenn. LEXIS 283 (Tenn. Apr. 6, 2015).

Because Class B misdemeanor assault was not a lesser-included offense of attempted rape, as assault as charged in defendant's case always involved an unlawful sexual contact whereas attempted rape did not, the trial court did not err by failing to instruct the jury on Class B misdemeanor assault as a lesser-included offense of attempted rape. State v. Durham, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1031 (Tenn. Crim. App. Dec. 14, 2017).

12. Proof Required.

T.C.A. § 39-12-101 requires that the state prove two material elements: (1) The culpability required for the attempted crime and (2) An act or acts in furtherance of the attempted crime. Wyatt v. State, 24 S.W.3d 319, 2000 Tenn. LEXIS 431 (Tenn. 2000).

Defendant may be guilty of attempted child neglect under T.C.A. § 39-12-101(a)(3), provided that the State proves that the defendant's conscious object or desire was to engage in conduct constituting neglect and that defendant took a substantial step toward the commission of the offense. State v. Mateyko, 53 S.W.3d 666, 2001 Tenn. LEXIS 625 (Tenn. 2001).

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).

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), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 393 (Tenn. Aug. 5, 2020).

13. —“Substantial Step.”

When an actor possesses materials to be used in the commission of a crime, at or near the scene of the crime, and where the possession of those materials can serve no lawful purpose of the actor under the circumstances, the jury is entitled, but not required, to find that the actor has taken a “substantial step” toward the commission of the crime if such action is strongly corroborative of the actor's overall criminal purpose. State v. Reeves, 916 S.W.2d 909, 1996 Tenn. LEXIS 119 (Tenn. 1996).

Evidence was sufficient to convicted defendant, as an aider and abettor, of attempted first degree murder because the actions of his companion in firing a handgun at two unarmed men entitled the judge to find that the companion took a “substantial step” toward committing first degree murder. State v. Dickson, 413 S.W.3d 735, 2013 Tenn. LEXIS 777 (Tenn. Oct. 8, 2013).

14. —Specific Intent.

A jury charge on attempted second degree murder that required the jury to find defendant “acted with intent to complete a course of action or cause a result that would constitute second degree murder” sufficiently encompassed the specific intent required for criminal attempt. State v. Eldridge, 951 S.W.2d 775, 1997 Tenn. Crim. App. LEXIS 441 (Tenn. Crim. App. 1997).

15. Sufficiency of Evidence.

Court affirmed defendant's conviction of attempted child rape, in violation of T.C.A. §§ 39-13-522(a), 39-12-101, where the evidence showed that defendant climbed on top of the victim, who was 11 years old at the time, but defendant was thwarted by another person who pulled defendant off; given that the next attack was similar in nature and within two weeks of the first attack, and that the victim testified that defendant raped the victim during the second attack, it was permissible for the jury to have inferred that defendant intended to rape the victim the first time. State v. Elkins, 102 S.W.3d 578, 2003 Tenn. LEXIS 325 (Tenn. 2003), dismissed, Elkins v. Sexton, — F. Supp. 2d —, 2011 U.S. Dist. LEXIS 131508 (E.D. Tenn. Nov. 14, 2011).

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).

Defendant's DUI conviction was upheld where the evidence was sufficient to support the finding that the parking lot of a public park was a premises generally frequented by the public at large; in addition, when defendant saw the approach of the police cruiser and began to drive toward the parking lot's exit in an impaired state, he attempted to commit DUI pursuant to T.C.A. § 39-12-101(a)(3). State v. Dobbins, 265 S.W.3d 419, 2007 Tenn. Crim. App. LEXIS 9 (Tenn. Crim. App. Jan. 5, 2007).

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 defendant's attempted rape conviction because a witness testified that he took defendant to the victim's residence and defendant spent fifteen to twenty minutes inside. The victim's assailant had placed his hand between her legs, and DNA evidence established a strong correlation between defendant and a hat left on the victim's bed during the attack. 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. State v. Davis, 354 S.W.3d 718, 2011 Tenn. LEXIS 962 (Tenn. Oct. 17, 2011).

Evidence was insufficient to sustain defendant's conviction for attempted aggravated sexual battery because defendant was prosecuted for the completed offense of aggravated sexual battery and not attempt, which was an improperly charged lesser-included offense. The only defense presented at trial was that no crime ever occurred. The evidence presented at trial led to only two possible factual scenarios - that defendant either completed the offense or he did not. State v. Edwards, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 332 (Tenn. Crim. App. May 18, 2012), overruled in part, State v. Thorpe, 463 S.W.3d 851, 2015 Tenn. LEXIS 283 (Tenn. Apr. 6, 2015).

Evidence was insufficient to sustain a conviction for attempted first degree murder because there was no evidence that the accomplice assisted defendant in planning defendant's return to the cabin, other than suggesting defendant obtain a gun; there was likewise no evidence that the accomplice asked to hold defendant's gun or that he indicated he intended to shoot anyone. 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 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 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 attempted voluntary manslaughter because defendant, acting in a state of passion produced by adequate provocation, acted with the intent to cause the death of the victim as he inflicted several serious injuries on the victim; he bound the victim's feet to an entertainment center by use of an electrical cord and taunted her about seeking medical help for her; and, after staging a false 9-1-1 call from a female acquaintance, he fled the State and was apprehended weeks later in South Carolina. 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 conviction of criminal attempt to commit sexual battery by an authority figure because defendant intended to commit a sexual battery upon the victim and he took substantial steps toward that end as he sent text messages to the victim telling her to change her clothes to make it easier for him to access her intimate parts; he sent text messages to the victim about what he intended to do; and he kissed her on the inside of her legs; and because defendant was an authority figure as he was responsible for disciplining the victim and her brother while the mother was at work. State v. Thorpe, 463 S.W.3d 851, 2015 Tenn. LEXIS 283 (Tenn. Apr. 6, 2015).

Evidence was sufficient to support defendant's convictions of aggravated burglary, attempted theft of property valued over $500 but less than $1,000, and vandalism of property valued over $500 but less than $1,000, where it showed that defendant entered the victim's residence without his consent with the intent to commit theft, he used a wood file to disengage a lock on a door, he admitted that he intended to take three guns from the victim's house, he had removed the guns from the gun cabinet and placed them on the sofa, and the victim testified that they were valued at $800. State v. Watson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 1 (Tenn. Crim. App. Jan. 5, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 325 (Tenn. May 6, 2016).

Evidence was sufficient to convict defendant of attempted second degree murder because defendant possessed the intent to knowingly kill the victim and, by repeatedly stabbing her and slamming her head into the toilet, he took a substantial step toward doing so. State v. Freeman, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 179 (Tenn. Crim. App. Mar. 10, 2016).

Evidence was sufficient to convict defendant of attempted aggravated rape because defendant stated his intent to have sex with the victim, he threatened and stabbed her with a knife, he repeatedly slammed her head into the toilet, and he attempted to penetrate her with his penis. 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 convictions of aggravated robbery and attempt to commit aggravated robbery where one victim identified defendant as the perpetrator at the scene of the robbery, both victims chased the reddish-color car from the scene of the robbery, and an officer identified defendant as the passenger in the reddish-color car who fled the scene of the traffic stop. State v. Jackson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 325 (Tenn. Crim. App. Apr. 29, 2016).

Evidence was sufficient to convict defendant of two counts of rape of a child and two counts of attempted rape of a child because, with respect to the rape of a child counts, the victim described defendant penetrating her vagina with his penis and his fingers, and she testified that it went on for a long time and that she was raped almost every day; and, with respect to the attempted rape of a child counts, the victim described one occasion of attempted anal penetration where defendant tried to put his penis in her butt, but was unsuccessful; and both the victim and the step-brother testified that defendant tried to get the step-brother to have sex with the victim, but the step-brother freaked out when he could not get an erection and left. State v. Irwin, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 354 (Tenn. Crim. App. May 11, 2016).

Evidence was sufficient to sustain a conviction for aggravated robbery and attempted aggravated robbery because defendant was identified by the victims in a photographic lineup and in court, even though defendant had a very different appearance during the trial. The victims testified to the same general sequence of events relating to crimes that were committed against them during an attempt to purchase marijuana, with minor discrepancies. State v. Clayton, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 373 (Tenn. Crim. App. May 18, 2016).

Evidence was sufficient to convict defendant of second degree murder, attempted voluntary manslaughter, and employment of a firearm during the commission of a dangerous felony because defendant and one of the victims had a dispute over money; on the day of the incident, defendant sped through traffic to cut off the vehicle carrying the two victims; defendant waved a handgun and exited his vehicle, demanding money; defendant took money given to him by one of the victims; he then shot the decedent four times, several times while the victim was already down, shot the other victim once, and fired at least nine rounds; and defendant then discarded his handgun, fled the scene, and hid inside of a truck. 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).

Defendant was properly convicted of attempted second-degree murder, aggravated assault, employing a firearm during commission of a dangerous felony, and possessing a firearm as a convicted felon because, without a prior disagreement or provocation, defendant drew a gun while the victim's back was turned, pointed it at the victim, and shot him when he attempted to escape, the shooting was a substantial step toward killing the victim, firing the gun was an intentional act, the victim believed that defendant intended to rob him, defendant did not attempt to render aid to the victim, left the scene, and hid in his mother's attic, and the parties stipulated that defendant had two prior felony convictions involving violence and/or drugs. State v. Jones, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 417 (Tenn. Crim. App. June 6, 2016).

Based on the character of and the circumstances surrounding the offense, specifically the number of times the victim was shot, the jury could conclude that the gun was not fired accidentally but that defendant knowingly shot the victim. Thus, the evidence was sufficient to support defendant's conviction for attempted second degree murder. State v. Henderson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 432 (Tenn. Crim. App. June 10, 2016).

Evidence that defendant got out of the car to commit the aggravated assaults, chose to get up off the ground and return fire, and he and his accomplice fired numerous shots allowed the jury to reject the self-defense claim and convict him of attempted voluntary manslaughter and employing a firearm during attempt to commit a dangerous felony. State v. Brown, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 465 (Tenn. Crim. App. June 29, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 758 (Tenn. Oct. 20, 2016).

Trial court properly convicted defendant of attempted voluntary manslaughter and employing a firearm during the commission of a dangerous felony because defendant shot the unarmed victim three times and fled the scene when the victim raised his hands after approaching defendant regarding a recent break-in and theft at the victim's home where defendant was in a state of passion produced by adequate provocation sufficient to lead a reasonable person to act in an irrational manner and he intended to go armed when he shot the victim. State v. Brown, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 505 (Tenn. Crim. App. July 15, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 775 (Tenn. Oct. 21, 2016).

Evidence was sufficient for a rational trier of fact to find defendant guilty of attempted second degree murder because defendant intentionally chased after one victim with his truck and unsuccessfully attempted to hit that victim; defendant also intentionally chased after a second victim with his truck and successfully struck her several times and caused her injury, and he did not after making explicit and implicit threats. State v. Rush, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 507 (Tenn. Crim. App. July 15, 2016).

Despite the acquittal on the attempted first degree murder charge, the State presented evidence from which a trier of fact could have found that defendants, by shooting eight times each into a nearby vehicle containing six people, committed attempted murder, and that they employed a firearm during the commission of a dangerous felony; thus, the evidence supported the attempted second degree murder conviction. State v. Pirtle, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 536 (Tenn. Crim. App. July 22, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 902 (Tenn. Nov. 22, 2016).

Evidence was sufficient to convict defendant of attempted voluntary manslaughter because defendant had words with the victim's friend over a debt the friend allegedly owed defendant; defendant returned to the scene later that evening and confronted the victim about the friend's debt; the victim testified that the discussion became heated, but he considered it over when he walked away, however, defendant returned moments later and shot the unarmed victim in the leg; when the victim attempted to escape into the store, defendant pursued him firing two more shots at the victim; and the victim testified that defendant stated that he was going to make the victim pay for his friend's debt and threatened to kill the victim. State v. Jackson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 562 (Tenn. Crim. App. Aug. 2, 2016).

Record supported the jury's finding that defendant acted with premeditation in killing three victims and attempting to kill a fourth victim, as it showed that, after becoming angry with his girlfriend for cheating, defendant rammed a door and fired his gun at the door in an effort to get to her inside the bedroom and once inside, defendant continued shooting his gun. In addition, defendant did not render aid or summon help, fled the scene and traveled to multiple locations. State v. Clayton, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 614 (Tenn. Crim. App. Aug. 18, 2016), aff'd, 535 S.W.3d 829, 2017 Tenn. LEXIS 723 (Tenn. Nov. 20, 2017).

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 others. State v. Harbison, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 619 (Tenn. Crim. App. Aug. 19, 2016), rev'd, 539 S.W.3d 149, 2018 Tenn. LEXIS 7 (Tenn. Jan. 9, 2018).

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. State v. Harbison, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 619 (Tenn. Crim. App. Aug. 19, 2016), rev'd, 539 S.W.3d 149, 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, 539 S.W.3d 149, 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, 539 S.W.3d 149, 2018 Tenn. LEXIS 7 (Tenn. Jan. 9, 2018).

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, 539 S.W.3d 149, 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, 539 S.W.3d 149, 2018 Tenn. LEXIS 7 (Tenn. Jan. 9, 2018).

Child victim's testimony that she thought defendant was going to shoot her mother and her, and testimony defendant pointed the gun at his girlfriend's car while she and the child were inside it and threatened to kill them supported convictions for aggravated assault and attempted aggravated assault, and the girlfriend's admission that a year later she could not remember whether defendant actually threatened to kill her did not create reasonable doubt, nor did her ongoing relationship with him. State v. Abujaber, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 631 (Tenn. Crim. App. Aug. 25, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 856 (Tenn. Nov. 16, 2016).

Evidence defendant waited for the victim in a parking lot, walked to his car while she loaded groceries and returned with a gun, was angry and repeatedly struck her in the head with his gun, and shot the victim's hands and abdomen supported a conviction for attempted second degree murder. State v. Vinson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 647 (Tenn. Crim. App. Aug. 31, 2016).

Evidence was insufficient to support defendant's conviction for attempt to commit especially aggravated robbery because the victim was not questioned and did not testify relative to defendant's or the codefendant's searching her purse or attempting to take her property and the jury heard neither direct nor circumstantial evidence from which it could reasonably infer that they attempted to take property from the victim. State v. Hawthorne, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 670 (Tenn. Crim. App. Sept. 7, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 145 (Tenn. Feb. 23, 2017).

Evidence was sufficient to support defendant's conviction for attempt to commit second degree murder. A reasonable jury could have concluded that defendant intentionally shot the victim with the knowledge that shooting the victim was reasonably certain to kill him. State v. Harbison, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 684 (Tenn. Crim. App. Sept. 14, 2016).

Evidence was sufficient to support the jury's rejection of defendant's claim that he was too intoxicated to form the requisite intent for attempted first-degree murder where he was able to recall details about the amount of drugs and alcohol he consumed, when and with whom he consumed them, and his exact travel route home, including the specific roads he took and which landmarks he passed. State v. Peden, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 699 (Tenn. Crim. App. Sept. 19, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 976 (Tenn. Dec. 14, 2016).

Evidence supported convictions for attempted especially aggravated robbery, attempted second degree murder, and the employment of a firearm during the commission of or attempt to commit a dangerous offense, as defendant admitted helping plan the robbery, driving the assailants to the victim's home, and that he expected to be compensated, and the jury determined the offenses against the victim's friend were a natural and probable consequence of attempting to rob the murder victim at gunpoint. State v. Moore, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 714 (Tenn. Crim. App. Sept. 20, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 27 (Tenn. Jan. 18, 2017).

Evidence was sufficient to support defendant's conviction of attempted first-degree murder where it showed that he shot the unarmed victim from behind and when the victim turned around shot him again, he attempted to shoot the victim a third time but his gun jammed, and he had previously threatened anyone who stepped on his turf. State v. Jones, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 732 (Tenn. Crim. App. Sept. 26, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 45 (Tenn. Jan. 20, 2017).

Defendant's attempted murder and firearms convictions were supported by evidence that at least 15 shots were filed at the victims'  home, immediately prior to the shooting someone claiming to be defendant called an individual an asked her to get in touch with the male victim and then defendant asked the victim if he had any “beef” with defendant moments before shots were fired, and the casings recovered from the scene matched cartridge casings found in a vehicle where defendant was a passenger. State v. Lagrone, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 751 (Tenn. Crim. App. Sept. 30, 2016).

Although the victim was unable to identify defendant as one of the perpetrators at the preliminary hearing, there was sufficient evidence of his identity, as the jury chose to credit the victim's trial testimony that defendant was one of the men who fled in a vehicle from her rental home, knocking her down in the process, and there was evidence that the vehicle that fled the scene was registered to defendant's mother and defendant had access to the vehicle and had driven it on another occasion. State v. Smith, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 794 (Tenn. Crim. App. Oct. 21, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 155 (Tenn. Feb. 28, 2017).

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), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 32 (Tenn. Jan. 18, 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), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 32 (Tenn. Jan. 18, 2018).

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).

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).

Evidence that defendant went to a residence and asked the victim to come outside to settle some business, the victim came out, defendant pulled out a handgun and pointed it at the victim, the victim charged, and defendant fired the gun, was sufficient to support defendant's conviction for attempted second degree murder. State v. Patterson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 911 (Tenn. Crim. App. Dec. 7, 2016), modified, 538 S.W.3d 431, 2017 Tenn. LEXIS 736 (Tenn. Nov. 30, 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 supported defendant's convictions for attempting to introduce contraband into a penal facility because defendant and codefendant were discovered lying in a ditch on the side of a rural road adjacent to a prison from which defendant had been released two weeks earlier, just after midnight, at or near a known hot-spot for smuggling illegal contraband into the prison. Moreover, two large duffel bags containing cell phones, cell phone charges, tobacco, and marijuana were found one to two feet from defendant. State v. Matthews, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 49 (Tenn. Crim. App. Jan. 24, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 252 (Tenn. Apr. 13, 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 that 16 grams of powder cocaine were found in defendant's residence, and plastic baggies, digital scales, and pyrex measuring cups that tested positive for cocaine residue were found in the residence, was sufficient to support defendant's conviction for attempt to commit the crime of possession of a controlled substance with intent to sell or deliver. State v. Byars, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 133 (Tenn. Crim. App. Feb. 27, 2017), overruled in part, State v. Minor, 546 S.W.3d 59, 2018 Tenn. LEXIS 149 (Tenn. Apr. 11, 2018).

Evidence was sufficient to convict defendant of first degree murder committed during the perpetration of an attempted robbery as the underlying felony of attempted robbery and the killing were part of a continuous transaction with no break in the chain of events, and the killing was committed in pursuance of the attempted robbery because defendant and co-defendant decided to commit a robbery on the night of the offense; although defendant claimed that he became scared and attempted to retreat from the robbery, and that the gun unintentionally discharged, a firearms expert testified that at least five pounds of pressure had to be applied to the trigger for the gun to discharge; and the victim was shot once and later died from his wound. State v. Johnson, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 173 (Tenn. Crim. App. Mar. 8, 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 defendant's conviction of attempted first-degree premeditated murder because it showed that defendant pulled out a gun and pointed it at the victim, as the victim was driving away defendant fired two shots at him, defendant had tried to fire a third bullet while walking toward the victim but his gun jammed, the victim never used his rifle during the altercation, after the shooting defendant washed his hands, secreted the gun in a backpack, and hid from the police in a bathroom, and when the police found defendant's gun it was fully loaded. State v. Puckett, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 227 (Tenn. Crim. App. Mar. 27, 2017).

Evidence was sufficient to convict defendant of attempted first degree murder because the victim testified that defendant confronted him while entering a barber shop and told him that he was about to die before shooting the victim; the victim was shot 14 times by defendant and co-defendant, who the victim repeatedly identified as the shooters without hesitation; the victim positively identified defendant in a photo lineup and at trial as one of the individuals who shot him; and he testified that he could clearly see defendant before defendant shot him, and that he had no doubt about defendant's identity. State v. Lee, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 278 (Tenn. Crim. App. Apr. 13, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 424 (Tenn. July 19, 2017).

Evidence was sufficient to support defendant's conviction of attempted especially aggravated sexual exploitation of a minor because it showed that, had the victim not found the camera defendant placed in her bedroom, it would have recorded her bare breasts, pubic area, and buttocks while she dressed after showering. State v. Hall, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 322 (Tenn. Crim. App. May 2, 2017), rev'd, — S.W.3d —, 2019 Tenn. LEXIS 5 (Tenn. Jan. 7, 2019).

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).

Evidence was sufficient to support defendant's attempted especially aggravated robbery conviction because the State provided adequate corroboration of the accomplice's testimony, including a witness's identification of defendant as the man in the car driven by the accomplice, defendant's shorts collected by the police were consistent with the witness's description of the suspect's clothing and they contained blood and gunshot residue, defendant admitted that he bought marijuana from the victim, and damage to the victim's home was consistent with a struggle having occurred. State v. Cosper, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 371 (Tenn. Crim. App. May 12, 2017).

Evidence was sufficient to support defendant's convictions of second-degree murder and attempted aggravated robbery because it showed that defendant and his friend accosted the victim outside the victim's residence, defendant forced the victim to the ground at gunpoint and rifled through his pockets before fleeing with his friend, a short time later while the victim and another man were driving around searching for the robbers defendant fired 14 gunshots from a semiautomatic handgun at the victim's vehicle and struck the victim in the head, killing him. State v. Taylor, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 517 (Tenn. Crim. App. June 16, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 652 (Tenn. Oct. 6, 2017).

Evidence was sufficient to convict defendant of attempted second degree murder as the State proved that he acted knowingly when he shot one of the victims in the back during the robbery because the two victims were lured to an apartment complex under the pretext of buying a gaming system and a television; defendant pointed a gun at them and robbed them; as they ran away, defendant fired gunshots in their direction; one of the bullets hit one of the victims in the back; and the jury was at liberty to infer that defendant knew that firing a gun in the direction of the victims as they attempted to escape the robbery could have resulted in their deaths. State v. Woods, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 569 (Tenn. Crim. App. June 29, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 840 (Tenn. Nov. 20, 2017).

Evidence that defendant shot eleven bullets at the vehicle the victims were riding in was sufficient to support defendant's convictions for second degree murder and attempted second degree murder. State v. Donaldson, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 597 (Tenn. Crim. App. July 6, 2017).

Evidence was sufficient to prove defendant's identity as the shooter because the victim knew defendant, the victim testified regarding his unique haircut and gait, the jury was presented with video of the shooter as well as video of defendant filmed with the same equipment at the same location under similar circumstances, the shooter's appearance was consistent with defendant's in physique, movement, and general hairstyle, both had a similarly shaped tattoo in the same location, the shooter and defendant appeared to be wearing the same shoes, and the victim testified that he was certain the shooter depicted on film was defendant. State v. Myles, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 607 (Tenn. Crim. App. July 11, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 787 (Tenn. Nov. 16, 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 that defendant drove by, stopped and looked at the victim and another, and started shooting at them from the car was sufficient evidence that defendant acted with premeditation, as required for convictions for first degree murder and attempted first degree murder. State v. Linzy, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 737 (Tenn. Crim. App. Aug. 18, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 786 (Tenn. Nov. 16, 2017).

Evidence that defendant and codefendant fired 19 shots at the victim while the victim ran and continued to shoot at the victim after he fell to the ground, hitting him a total of 13 times and leaving him paralyzed and in a wheelchair, was sufficient to support defendant's conviction for attempted second-degree murder. State v. Cunningham, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 747 (Tenn. Crim. App. Aug. 23, 2017).

Evidence supported defendant's conviction for multiple counts of attempted first degree murder as witnesses testified that defendant, a known gang member, 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. Defendant then rejoined defendant's friends and discussed the events of the night, including the fact that defendant fired shots. 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 attempted first-degree murder of the second victim because defendant admitted that he intended to shoot the second victim when he went to the home of the first victim, his estranged wife; and defendant took a substantial step toward killing the second victim as defendant waited with a loaded gun outside of the home where he knew the second victim to be and then threatened to shoot the second victim while holding a gun to the first victim's head; and defendant did, in fact, shoot the first victim in the head. State v. Beverly, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1029 (Tenn. Crim. App. Nov. 28, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 299 (Tenn. May 16, 2018).

Evidence was sufficient to convict defendant of attempted rape because, although the victim said that defendant did not try to insert his penis into her vagina, she said that she thought he was going to rape her and that she kicked him off of her; and a reasonable jury could infer from the facts that defendant intended to sexually penetrate the victim and that his forcing her onto the bed, telling her to shut up, and pulling her tights and underwear down to her ankles constituted a substantial step toward accomplishing the act. State v. Durham, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1031 (Tenn. Crim. App. Dec. 14, 2017).

Defendant's argument that he could not form the requisite specific intent to commit the offenses due to his alleged intoxication was rejected by the jury, and thus, there was sufficient evidence to support his convictions for attempted second degree murder, aggravated burglary, burglary of a vehicle, two counts of theft, employment of a firearm during the commission of a dangerous felony, and possession of a firearm during the commission of a dangerous felony. State v. Goss, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1052 (Tenn. Crim. App. Dec. 22, 2017).

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).

Sufficient evidence supported defendant's aggravated arson and attempted first degree murder because the evidence showed (1) defendant knowingly set fire to a victim which damaged the victim's store, and (2) defendant took a substantial step toward attempted first degree murder by lighting the victim on fire. State v. Boutrous, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 114 (Tenn. Crim. App. Feb. 16, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 343 (Tenn. June 6, 2018), dismissed, Boutrous v. Perry, — F. Supp. 2d —, 2019 U.S. Dist. LEXIS 14780 (M.D. Tenn. Jan. 30, 2019).

Evidence was sufficient to support defendant's convictions of attempted first-degree murder and attempted second-degree murder because it showed that he fired at unarmed victims and an expert in the field of forensic psychiatry testified that defendant was capable of premeditating his actions and was deceptive in his interview. 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 convictions of first-degree murder, attempted first-degree murder, and unlawful employment of a firearm during the commission of a dangerous felony because two witnesses testified that defendant and the intended victim were arguing immediately before the shooting, a witness saw defendant walk out of his home with a gun and shoot at the intended victim, the witness then saw the victim fall to the ground after the shot was fired, and two witnesses testified that before the shooting defendant told them to get out of the way because he was about to shoot the intended victim. State v. Williamson, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 350 (Tenn. Crim. App. May 4, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 612 (Tenn. Sept. 19, 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 convictions for attempted first-degree murder and aggravated assault, because despite the alibi testimony of defendant's mother, the jury chose not to accredit her testimony and resolve all conflicts in favor of the State and the victim's testimony identifying defendant as one of the shooters without hesitation. State v. Lee, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 390 (Tenn. Crim. App. May 18, 2018).

Evidence that defendant and his accomplice fired at least 12 shots at the victims was sufficient to show that defendant intentionally shot the victims with the knowledge that shooting them was reasonably certain to kill them and thus, supported defendant's convictions for attempted second-degree murder and unlawful employment of a firearm during the commission or attempt to commit a dangerous felony. State v. Orozco, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 411 (Tenn. Crim. App. May 24, 2018).

Defendant was properly convicted of attempted aggravated burglary because he entered a townhouse through a window that he had left unlocked for the express purpose of entering the townhouse, claimed he was coming inside to retrieve some clothes he had left in a kitchen cabinet above the refrigerator when the resident confronted him, and the trial court discredited defendant's excuse that he was entering the townhouse to retrieve his clothes as was its prerogative. State v. Lockridge, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 482 (Tenn. Crim. App. June 29, 2018).

Defendant was properly convicted of attempted second-degree murder and employment of a firearm during the commission of a dangerous felony because, in an apparent fit of road rage, defendant pulled an AK-47 style weapon from his van and shot into the passenger side of the victim's semi-tractor trailer truck, striking him in both legs, and while defendant argued that he was trying to send the victim a message by shooting the engine of the truck, any rational juror could have concluded that he intentionally engaged in conduct that would have, if completed, resulted in the knowing killing of the victim. State v. Austin, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 486 (Tenn. Crim. App. June 29, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 693 (Tenn. Nov. 15, 2018).

Evidence that defendant and codefendant ambushed the victims as they entered their home, defendant demanded money from a victim while codefendant subdue the other victims, defendant shot one victim when he attempted to fight back and later shot the other victims, and the bullets recovered from the victims were fired from a weapon that defendant sold to someone and had fired a month before the murders was sufficient to support defendant's convictions for murder, attempted murder, robbery and aggravated assault. State v. Wade, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 523 (Tenn. Crim. App. July 13, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 689 (Tenn. Nov. 15, 2018).

Evidence was sufficient to sustain defendant's conviction for attempted theft of property valued at $10,000 or more but less than $60,000 where a bank branch manager's testimony estimated the amount in the ATM at $60,000, but admitted on cross-examination that it could have been $58,000, and a rational trier of fact could had found from that testimony that the value of the property taken was more than $10,000. State v. Dunn, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 547 (Tenn. Crim. App. July 23, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 778 (Tenn. Dec. 5, 2018).

Evidence was sufficient to convict defendant of attempted first degree premeditated murder because his conduct constituted a substantial step towards the killing of the victim, as evidenced by his using a gun to shoot the victim while the victim lay unarmed on the ground and attempted to crawl away; the evidence of premeditation was that defendant made multiple attempts to unjam the gun after having already shot the victim and walked away from the victim before returning to shoot him. State v. Gary, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 580 (Tenn. Crim. App. July 31, 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 that defendant grabbed merchandise from a store and left without paying for it, that a loss prevention employee approached defendant and brought him back to his office, that defendant was knocking over tables and yelling profanity and threatened to kill the employee, and that while in the employee's office, defendant used a telephone cord to strangle the employee until he lost consciousness was sufficient to support defendant's convictions for attempted second-degree murder, aggravated assault, and theft. State v. Talley, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 658 (Tenn. Crim. App. Aug. 24, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 679 (Tenn. Nov. 16, 2018).

Evidence was sufficient to support defendant's convictions for attempted first degree murder and aggravated assault because it showed that he used a gun to shoot multiple shots towards the vehicle as the victim drove away and several of the shots hit the vehicle. State v. Battle, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 673 (Tenn. Crim. App. Aug. 31, 2018), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 99 (Tenn. Jan. 18, 2019).

Evidence was sufficient to convict defendant of attempted first degree premeditated murder as defendant's conduct constituted a substantial step towards the premeditated and intentional killing of the victim because the evidence of premeditation was that defendant and the victim were in a fight prior to the shooting, and that defendant brought a weapon to the home where he knew the victim would be, concealed the weapon in a paper bag, walked up to where the victim was standing, made a slang reference to shooting someone, and lifted his hand and fired the weapon at the victim several times; and because the victim was shot in the head and the back. State v. Burnette, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 682 (Tenn. Crim. App. Sept. 6, 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 supported conviction for attempted theft as a reasonable juror could have concluded that defendant, a city mayor, intended to deprive the city of property when he paid city employees to pick up a truck being purchased for defendant's personal use, used city funds to pay for the tow of a city-owner truck and trailer, and the trucker's repair, and the tow of the newly purchased truck after the city truck broke down, and repaid funds only after being caught. State v. Loveless, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 905 (Tenn. Crim. App. Dec. 14, 2018).

Evidence was insufficient to support defendant's conviction of attempted especially aggravated sexual exploitation of a minor because the evidence showed at most that when he hid a video camera in the minor victim's bedroom aimed to record the area where she normally changed clothes, defendant intended to produce material that would include images of the victim engaged in everyday activities ordinarily performed in the nude, which were deemed insufficient in the Whited case to constitute a “lascivious exhibition.” State v. Hall, — S.W.3d —, 2019 Tenn. LEXIS 5 (Tenn. Jan. 7, 2019).

Evidence that defendant stated that he was “fixin to get” the victim and was identified by the victim and a witness as the shooter after firing five or six rounds toward the victim was sufficient to support defendant's conviction for attempted first degree murder. State v. Russell, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 86 (Tenn. Crim. App. Feb. 8, 2019).

Evidence that defendant, who was angry with the victim, took the shotgun out of its case when the victim knocked on his door, opened the door to his apartment, reiterated that he told to the victim to get away from the door, and fired the shotgun was sufficient to support defendant's conviction for attempted voluntary manslaughter. State v. McKinnie, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 113 (Tenn. Crim. App. Feb. 21, 2019).

Evidence was sufficient to support defendant's convictions of attempted first-degree murder because the State established premeditation by showing that defendant was angry with his girlfriend over her plans to move out of state, he procured a weapon, he blocked the apartment door and pretended to reach for his cell phone, he fired multiple times at the victims, he reloaded the weapon, he failed to render aid to his girlfriend and her children, and the shootings were particularly cruel, as she shot his girlfriend and her children in front of each other and other family members. State v. Woodley, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 151 (Tenn. Crim. App. Mar. 11, 2019), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 310 (Tenn. July 24, 2019).

The evidence was sufficient to support defendant's conviction for attempted voluntary manslaughter because defendant's prior altercation with the shooting victim, a bouncer at a club who asked defendant to leave the club at closing time, served as adequate provocation when defendant became angry with the victim and subsequently returned and fired gunshots at the victim. State v. Juarez, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 175 (Tenn. Crim. App. Mar. 18, 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).

Sufficient evidence supported defendant's convictions for attempted first degree murder, two counts of aggravated assault, reckless endangerment, and employment of a firearm during the commission of or attempt to commit a dangerous felony because the evidence showed defendant fired numerous shots at victims in the parking lot of a crowded shopping mall. State v. Chambers, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 241 (Tenn. Crim. App. Apr. 15, 2019), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 330 (Tenn. July 19, 2019).

Evidence was sufficient to support defendant's conviction of attempted first-degree murder because it showed that, during a verbal altercation with his ex-wife and her boyfriend, defendant produced a gun, announced his intent to shot the boyfriend, and fired twice at the boyfriend, even though he was unarmed and was attempting to remove himself from the disagreement. State v. Myers, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 285 (Tenn. Crim. App. Apr. 30, 2019), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 314 (Tenn. July 17, 2019).

Evidence was sufficient to support defendant's conviction of attempted voluntary manslaughter because, when a crowd began fighting in a club, defendant saw defendant's sibling in the fight (which provided adequate provocation), pulled out defendant's gun, and shot toward the victim and another person. Defendant then chased the victim, who was unarmed, into the parking lot, shot the victim in the back, stood over the victim, and shot the victim several more times as the victim was lying on the ground. 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 of attempted second degree murder, as he repeatedly stabbed the unarmed victim in the neck, back, shoulders, and abdomen, and while stabbing her, defendant said he was going to teach her a lesson. The victim underwent surgery and was unable to care for herself for months, and thus the jury could have found that defendant acted with the intent to cause the knowing killing of the victim, believing his conduct would cause her death without further conduct on his part. State v. Walls, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 374 (Tenn. Crim. App. June 27, 2019).

Evidence was sufficient to support defendant's convictions for felony murder during the attempt to perpetrate theft, robbery, and especially aggravated robbery because the jury could have inferred from the evidence that defendant followed the witness to the victim's apartment intending to deprive the victim of his property, as he knew the witness was going to the victim's home to purchase drugs, he asked the witness how big the victim was, when the victim opened the door he encountered defendant pointed a gun at him, and another witness testified that defendant told her that he had committed a robbery. State v. Love, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 399 (Tenn. Crim. App. July 9, 2019), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 571 (Tenn. Dec. 4, 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), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 53 (Tenn. Jan. 17, 2020).

There was sufficient evidence for the jury to conclude, beyond a reasonable doubt, that defendant knowingly killed one victim and attempted to kill a second victim, including evidence that defendant, armed with a semiautomatic pistol, lay in wait until an accomplice moved away and then opened fire on the victims, followed the victims as they tried to escape, and stated he would have kept shooting if his gun had not jammed. State v. Wren, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 576 (Tenn. Crim. App. Sept. 13, 2019).

There was sufficient evidence to support defendant's convictions for aggravated robbery, attempted aggravated robbery, and aggravated assault including that defendant texted an accomplice about a robbery, defendant dropped off the accomplices at the pawn shop where they robbed the store and customers, the accomplices ran to an abandoned house and changed clothes before defendant picked them up, and the offenders were all tracked using a GPS placed in one of the jewelry cases taken during the robbery. State v. Wise, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 581 (Tenn. Crim. App. Sept. 18, 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), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 393 (Tenn. Aug. 5, 2020).

Evidence that defendant entered the home and pointed a handgun at the victims, chased the victims when they fled, and returned fire when shot at was sufficient to support defendant's conviction for attempt to commit second degree murder. State v. Wilkins, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 55 (Tenn. Crim. App. Jan. 31, 2020).

Evidence was insufficient to sustain defendant's conviction for attempted sexual exploitation of a minor because the mere fact that defendant previously took a photograph that was awfully close to the victim's private parts was not enough to say that such a photograph would have been lascivious exhibition of the victim's genitals and defendant's using food items to lure the victim into engaging in sexual activity did not constitute a substantial step toward sexual exploitation because defendant's entire course of action did not corroborate the intent to commit such an offense. State v. Glatz, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 119 (Tenn. Crim. App. Feb. 21, 2020).

Evidence was sufficient to support defendant's conviction of attempt to commit especially aggravated robbery because it showed that defendant returned to the victim's body after the shooting, stood over him, and turned out the victim's pants pocket in an attempt to take something out of that pocket. State v. Odom, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 157 (Tenn. Crim. App. Feb. 28, 2020), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 361 (Tenn. June 5, 2020).

Evidence that defendant went to a home under the guise of purchasing drugs, intending to rob the victims of the drugs, held a gun to one victim and shot another, retrieved the drugs, and fled in a vehicle taken from a third victim was sufficient to establish premeditation and intent so as to sustain a conviction for attempted first degree murder State v. Fleming, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 250 (Tenn. Crim. App. Apr. 15, 2020), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 445 (Tenn. July 17, 2020).

Evidence was insufficient to convict defendant of attempted unlawful photography because the victim was fully clothed in a public place; and the victim had no reasonable expectation of privacy. State v. Lambert, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 303 (Tenn. Crim. App. Apr. 28, 2020).

Evidence was sufficient to convict defendant of attempted sexual battery because the victim tried to get away from defendant, but he followed her; defendant then grabbed her bottom; the victim's mother testified that when she went to her daughter after her daughter hollered out, her daughter informed her that defendant had just grabbed her, which provided some level of corroboration; and completion of the attempted offense was not a defense to prosecution for criminal attempt. State v. Lambert, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 304 (Tenn. Crim. App. Apr. 28, 2020).

Evidence was sufficient to support defendant's convictions of attempted second degree murder, aggravated assault, and employing a firearm during the commission of a dangerous felony because the victim's identification of defendant in a photographic lineup and at trial was sufficient to establish defendant's identity as the perpetrator, and the jury could consider defendant's accomplice's testimony because it was sufficiently corroborated by the victim's testimony. State v. Hill, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 310 (Tenn. Crim. App. Apr. 30, 2020), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 310 (Tenn. Aug. 11, 2020).

Evidence was sufficient to support defendant's convictions because it showed that a co-defendant and defendant made a plan to “hit a lick” on Hispanic people, obtained a working magazine for the malfunctioning handgun, armed themselves, and asked another co-defendant to drive them around town to identify vulnerable targets. After choosing a house, the co-defendant and defendant walked back to the house, fired two shots into the air, and ordered the victims onto the ground, one of the men took a victim's wallet, and when they were surprised by the victims inside the house opening the door, the co-defendant and defendant opened fire, striking the house and four people present. State v. Young, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 335 (Tenn. Crim. App. May 12, 2020), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 507 (Tenn. Sept. 21, 2020).

Evidence was sufficient to convict defendant of one count attempted possession of a weapon by a convicted felon because defendant mistakenly called a detective and asked him if was interested in purchasing a shotgun; the detective recognized defendant's voice and knew that he was a convicted felon; the detective went to a specified location at a specified time where he saw a vehicle that defendant was known to drive; when approached and questioned by the detective, defendant admitted that the shotgun was in the trunk of the vehicle; and, despite the testimony of defendant's girlfriend that the shotgun belonged to her, the jury chose to determine the facts sufficient to support a conviction for attempt. State v. Moose, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 394 (Tenn. Crim. App. June 9, 2020).

Trial court properly convicted defendant of attempted tampering with evidence because a reasonable juror could conclude that between the time a police officer observed and commented on the baggies of drugs in defendant's lap and the time defendant crashed his vehicle, he destroyed most of the white powdery substance contained in one baggie in an effort to impair its availability as evidence in the investigation. State v. Colbert, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 597 (Tenn. Crim. App. Sept. 24, 2019), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 128 (Tenn. Feb. 19, 2020).

Evidence that the surviving victim saw defendant with a gun, saw the deceased victim grab his chest, and defendant shot the surviving victim in the face and knee was sufficient to support defendant's convictions for second degree murder and attempted second degree murder. State v. Jones, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 575 (Tenn. Crim. App. Aug. 25, 2020).

Evidence was sufficient to support defendant's conviction of attempted second degree murder because the video from the store's security cameras showed that defendant looked in the store employee's direction prior to approaching the service counter and demanding money from the victim, and after shooting the victim, defendant turned and fired his gun once in the direction of the fleeing employee. State v. Miller, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 624 (Tenn. Crim. App. Sept. 18, 2020).

Evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that defendant knowingly attempted to kill a deputy where it showed that the deputy spotted the defendant speeding and attempted to effectuate a traffic stop, defendant failed to stop and led the deputy on a chase for approximately 20 minutes, and when defendant stopped his car, he exited his vehicle while holding a gun in his left hand and fired at least one shot in the direction of the deputy, who was outside of his vehicle at that point. State v. Ochoa-Puentes, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 643 (Tenn. Crim. App. Sept. 29, 2020).

Evidence was sufficient to convict defendant of first degree felony murder, criminal attempt to commit second degree murder, aggravated robbery, and employing a firearm during the commission of a felony because defendant and co-defendant, each wielding a deadly weapon, approached the victims on the front porch of a residence; an altercation between the four men ensued; defendant pointed an automatic pistol at the first victim; while brandishing his weapon, co-defendant took cash from each victim and a cell phone from the second victim; when the second victim attempted to defend himself, co-defendant fired five shots; and the second victim later died from his gunshot wounds. State v. Wilson, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 719 (Tenn. Crim. App. Nov. 10, 2020).

Where a doctor testified that the stick which was surgically removed from the victim's throat was potentially life-threatening, the jury could have reasonably the evidence was sufficient to sustain defendant's conviction of attempted second degree murder. State v. Boyd, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 745 (Tenn. Crim. App. Nov. 19, 2020).

Evidence was sufficient to support defendant's convictions of second degree murder, attempted second degree murder, and employing a firearm during the commission of a dangerous felony because it showed that defendant had previously shot the victim, they got into an argument at a store, when the victim and his friend left the store on a scooter defendant and his friends began shooting them, the victim's friend identified defendant as one of the men who shot at them, and the victim's cause of death was two gunshot wounds to the chest. State v. Stevenson, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 798 (Tenn. Crim. App. Dec. 16, 2020).

Evidence was sufficient to support defendant's convictions of attempted theft of property valued at $10,000 or more but less than $60,000 and criminal simulation because it showed that he took a check for $13,187 to the bank and, after learning that he could not cash the check, attempted to open a bank account using the funds from the check, both the payee and the amount had been altered, and after two weeks he returned to the bank with the ATM card that had been issued to him for the purpose of accessing the funds from the check. State v. Anderson, — S.W.3d —, 2021 Tenn. Crim. App. LEXIS 15 (Tenn. Crim. App. Jan. 12, 2021).

Evidence was sufficient to support defendant's conviction for attempted second degree murder because defendant's statement, “this ain't happening,” together with his pointing the gun at the officer and pulling the trigger, showed that defendant acted with the intent to commit a knowing killing. State v. Moon, — S.W.3d —, 2021 Tenn. Crim. App. LEXIS 55 (Tenn. Crim. App. Feb. 14, 2021).

16. Enhancement Factors.

Exceptional cruelty is not an element of attempted second-degree murder and may be considered as an enhancement factor in the commission of the offense. State v. Hall, 947 S.W.2d 181, 1997 Tenn. Crim. App. LEXIS 63 (Tenn. Crim. App. 1997).

17. Jury Instructions.

Because there was nothing in the record to indicate that defendant filed a written request for an instruction on attempt, defendant waived the issue for appeal, and the court of criminal appeals reviewed his claim for plain error. State v. Morrison, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 165 (Tenn. Crim. App. Mar. 4, 2016).

Defendant failed to show that a clear and unequivocal rule of law was breached or that one of his substantial rights was adversely affected when the trial court failed to instruct the jury on attempt, and he was not entitled to plain error relief, because the evidence at trial showed that all three episodes of theft were completed and did not support an inference of guilt on the lesser included offense of attempted theft. State v. Morrison, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 165 (Tenn. Crim. App. Mar. 4, 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).

Trial court did not err in instructing the jury because defendant agreed to the proposed instructions, which contained proper statements of the law; the trial court's instructions tracked the language of the relevant statutes for first degree premeditated murder, criminal attempt, and employing a firearm during the commission of a dangerous felony, and they followed the Tennessee Pattern Jury Instructions. State v. Gary, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 580 (Tenn. Crim. App. July 31, 2018).

Defendant did not show it was plain error not to instruct a jury on the lesser included offense of misdemeanor reckless endangerment because the jury was instructed on the lesser included offenses of attempted second degree murder and attempted voluntary manslaughter but chose to convict defendant of attempted first degree murder, so defendant did not show a reasonable probability that a reasonable jury would have convicted defendant of misdemeanor reckless endangerment instead of attempted first degree murder. State v. Chambers, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 241 (Tenn. Crim. App. Apr. 15, 2019), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 330 (Tenn. July 19, 2019).

18. Sentencing.

Although defendant was eligible for consecutive sentencing, the trial court abused its discretion when it ordered partial consecutive sentencing that resulted in a total sentence of 44 years for defendant's crimes of aggravated robbery, theft by shoplifting, and attempted aggravated robbery; the robberies were committed with a toy gun, no one was injured, two victims knew the gun was plastic, defendant was 49 years old and already serving a 12-year sentence, and the sentence was in effect a sentence of life imprisonment, was not justly deserved, and was not the least severe measure necessary. State v. Biggs, 482 S.W.3d 923, 2015 Tenn. Crim. App. LEXIS 795 (Tenn. Crim. App. Sept. 30, 2015).

Total effective sentence of 35 years for defendant's convictions for two counts of rape of a child, two counts of attempted rape of a child, one count of aggravated sexual battery, and one count of incest was proper because defendant abused a position of private trust as the biological father of the victim; with regard to consecutive sentencing, the trial court determined that defendant was convicted of two or more statutory crimes of sexual abuse that were sustained over a period of time; the child suffered extensive damage to her mental and emotional health; and society needed to be protected from defendant who had abused a child beginning when the child was approximately four years of age. State v. Irwin, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 354 (Tenn. Crim. App. May 11, 2016).

Defendant's consecutive sentences were not an abuse of discretion, as both defendants were on probation at the time of the shooting, both defendants fell into the dangerous offender category, and the proper findings were made. State v. Pirtle, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 536 (Tenn. Crim. App. July 22, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 902 (Tenn. Nov. 22, 2016).

Trial court did not err in imposing consecutive sentencing for defendant's attempted second degree murder and aggravated robbery convictions because defendant was eligible for consecutive sentencing based upon his extensive criminal history and the determination that he was a dangerous offender; defendant was previously convicted of criminal attempt, car-jacking, where he violated his diversion, by picking up a weapons offense; defendant robbed the victims at gunpoint and fired multiple shots at them as they attempted to escape; and the trial court found that the circumstances of the offenses were aggravated and stated that the length of the sentence was reasonably related to the offenses for which defendant was convicted. State v. Woods, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 569 (Tenn. Crim. App. June 29, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 840 (Tenn. Nov. 20, 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).

In a case in which defendant was convicted of attempted aggravated sexual battery, the trial court did not abuse its discretion in imposing a five-year sentence because defendant was eligible for a sentence of three to six years; and, although the trial court misapplied the enhancement factor that defendant committed the crime to gratify his desire for pleasure or excitement as that factor was an element of attempted aggravated sexual battery, the trial court properly found as a separate enhancement factor that defendant abused a position of trust when he terminated the parental rights of the victim's biological parents and then subsequently sexually abused her. State v. Sexton, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 8 (Tenn. Crim. App. Jan. 5, 2018).

In a case in which defendant was convicted of attempted aggravated sexual battery, the trial court did not abuse its discretion in denying defendant probation because, while he pled guilty to the reduced charge of attempted aggravated sexual battery, the evidence supported the conclusion that he committed more than one completed aggravated sexual battery on his adopted daughter while she was under 13 years old; he obtained custody of the victim, removing her from the guardianship of others who could have protected her from him; and the trial court's finding that the presentence report was very disturbing supported the conclusion that it found the crime to be especially shocking, reprehensible, offensive, and of an exaggerated degree. State v. Sexton, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 8 (Tenn. Crim. App. Jan. 5, 2018).

Trial court did not abuse its discretion by imposing partial consecutive sentencing and a total effective sentence of life plus 24 years for first degree felony and premeditated murder, aggravated robbery, attempted aggravated robbery, aggravated burglary, and employment of a firearm; defendant committed six distinct violations of the law and the trial court properly applied the dangerous offender category after making the necessary findings, which included in part his long history of being a drug dealer and being affiliated with a gang. State v. Austin, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 758 (Tenn. Crim. App. Oct. 5, 2018).

19. Federal Sentencing.

Habeas petitioner's prior conviction for attempted rape, in violation of T.C.A. § 39-13-503, § 39-12-101, qualified as a violent felony under the Armed Career Criminal Act, 18 U.S.C. § 924(e), because attempted rape fell squarely within the class of crimes that presented a serious risk of physical injury to another, as contemplated by the Act. Dawson v. United States, 702 F.3d 347, 2012 FED App. 417P, 2012 U.S. App. LEXIS 26099 (6th Cir. Dec. 21, 2012).

Defendant's Tennessee conviction for attempted aggravated arson qualified as a violent felony under the residual clause of the Armed Career Criminal Act because it was akin to and possessed same the kind of risk as arson, which was an enumerated offense under the statute. United States v. Fallins, 777 F.3d 296, 2015  U.S. App. LEXIS 959, 2015 FED App. 12P (6th Cir. Jan. 22, 2015).

20. Evidentiary Rulings.

Trial court did not err in admitting the bloody clothes of the victim's daughter because the clothes helped the State establish that defendant attempted to kill the victim by completing a substantial step in the commission of the offense of attempted first degree premeditated murder and that defendant acted with premeditation; the clothes corroborated the daughter's testimony about the incident and suggested that had she not intervened, the defendant would have killed the victim; and the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. 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).

In an attempted first degree premeditated murder case, the trial court did not err in admitting the victim's testimony that she called her divorce attorney after informing defendant about the divorce to tell her attorney that she was more than a little afraid of going home because that testimony qualified as a state of mind exception to the hearsay rule, was relevant, and made it less likely that the victim provoked defendant; and it explained why the victim avoided defendant upon arriving home and declined to respond to him when he tried to talk to her. 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).

Trial court did not err in admitting crime scene photographs and photographs depicting the injuries to the victim's body because, to prove attempted first degree premeditated murder, the State was required to establish that defendant attempted to kill the victim and that defendant acted with premeditation, and the challenged photographs, which depicted the brutality of the attack and the nature and extent of the victim's injuries, were particularly probative of those issues; and because the probative value of the photographs was not substantially outweighed by the danger of unfair prejudice. 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).

In defendant's trial for attempted first degree murder under T.C.A. §§ 39-12-101, 39-13-202, the chief's testimony was rationally based on his perception, but his opinion that he thought defendant was going to kill his wife if he had not been apprehended was closely intertwined with the ultimate issue of whether defendant had taken a substantial step toward killing his wife; the trial court erred in admitting the testimony, but it was harmless given the overwhelming evidence against defendant. State v. Fisher, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 847 (Tenn. Crim. App. Sept. 15, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 96 (Tenn. Feb. 14, 2018).

NOTES TO DECISIONS

1. Legislative Intent.

The clear language of T.C.A. § 39-12-102 evinces a legislative intent to require both an intent to solicit and an intent that the crime solicited be committed. State v. Garrison, 40 S.W.3d 426, 2000 Tenn. LEXIS 652 (Tenn. 2000).

2. Nature of Offense.

As a matter of law, solicitation to commit aggravated robbery under Tennessee law is a crime of violence for purposes of establishing career offender status under the federal sentencing guidelines. United States v. Walker, 181 F.3d 774, 1999 FED App. 228P, 1999 U.S. App. LEXIS 13692 (6th Cir. Tenn. 1999), cert. denied, 528 U.S. 980, 120 S. Ct. 435, 145 L. Ed. 2d 340, 1999 U.S. LEXIS 7328 (1999).

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).

3. Jury Instructions.

Trial court did not err by failing to instruct the jury on solicitation, T.C.A. § 39-12-102(a), during defendant's criminal trial, because the evidence unmistakably established either the completed offenses of murder and especially aggravated kidnapping or defendant's claim of innocence. Thus, the proof in the record did not support the lesser charge. 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).

Trial court did not err in declining to give instruction on solicitation of murder, T.C.A. § 39-12-102(a), as a lesser included offense where the evidence established either the completed offense of murder or defendants'  claim of innocence. 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).

5. Entrapment Defense Allowed.

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 § 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).

NOTES TO DECISIONS

1. Conviction of Offense and Conspiracy.

It is constitutionally permissible for a defendant to be convicted of both first degree murder and conspiracy to commit first degree murder. State v. Stephenson, 878 S.W.2d 530, 1994 Tenn. LEXIS 143 (Tenn. 1994), rehearing denied, — S.W.2d —, 1994 Tenn. LEXIS 203 (Tenn. June 20, 1994), overruled, State v. Mitchell, 137 S.W.3d 630, 2003 Tenn. Crim. App. LEXIS 670 (Tenn. Crim. App. 2003).

2. First Degree Murder.

Defendant's sentences of incarceration and death did not constitute multiple punishments for the same conduct in violation of the U.S. Const. amend. 5 because the Blockburger  test was satisfied, as first-degree murder under T.C.A. § 39-13-202(a)(1) required proof of a killing but did not require proof of an agreement to commit a killing, as required under T. C.A. § 39-12-103(a). State v. Stephenson, 195 S.W.3d 574, 2006 Tenn. LEXIS 454 (Tenn. 2006).

Defendant's sentences of incarceration and death did not constitute multiple punishments for the same conduct in violation of Tenn. Const. art. I, § 10 because: (1) The offenses, first-degree murder under T.C.A. § 39-13-202(a)(1) (1989) and conspiracy to commit first-degree murder under T.C.A. § 39-12-103(a) (1989) were not the same under the Blockburger  test; (2) The same evidence was not required to prove both offenses, as defendant's conviction for first-degree murder required proof of his criminal responsibility for his wife's death and proof of his wife's death, but his conviction for conspiracy to commit first-degree murder required proof of an agreement to commit murder, but not necessarily proof of a killing; (3) Although there was only one victim, defendant committed separate acts and distinct acts. Defendant's act of murder, which he committed by employing another to commit the murder for remuneration or the promise of remuneration, was separate and distinct from defendant's entering into an agreement with his accomplice to have his wife killed; in addition, defendant's agreement with his accomplice to have his wife killed was separate and distinct from the act satisfying the aggravating circumstance of T.C.A. § 39-13-204(i)(4), defendant's act of offering his accomplice a boat, motor, and pickup truck in exchange for the completed killing; and (4) the legislative purpose of the statutes was different. State v. Stephenson, 195 S.W.3d 574, 2006 Tenn. LEXIS 454 (Tenn. 2006).

Evidence was sufficient to support defendant's conviction of conspiracy to commit first degree murder because it showed a mutual implied understanding among defendant, her daughter, and her daughter's boyfriend that the victims would be killed, as numerous emails among the daughter, defendant, and the boyfriend included references of their intent to kill the victims, defendant would bring the boyfriend up to speed on the bad things the victims had said about the daughter, the boyfriend was included in family meetings during which defendant and her husband would discuss the situation with the victims and what to do about it, on the evening before the murders defendant called the boyfriend and invited him to their residence, where the husband asked the boyfriend to do him a favor, and the boyfriend agreed. 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 convictions for conspiracy to commit first-degree murder because when the suspect's girlfriend told defendant that the suspect needed to get rid of the two victims, who had witnessed a home invasion defendant replied “okay,” according to defendant's cell phone records he made calls on two dates when his phone utilized the cell phone tower that covered the area where the victims lived, when defendant spoke to the suspect a few days later he stated that the victims could not be located, and a man testified that defendant offered to pay him $5,000 to murder the victims. State v. Bond, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 198 (Tenn. Crim. App. Mar. 28, 2019).

3. Indictment.

Trial court did not err by denying defendant's motion for election of theories and/or bill of particulars concerning the conspiracy charge where the indictment specified the date of each individual offense, the evidence at trial was precise as to the date of each controlled drug buy, the State alleged several overt acts in support of the two alternative conspiracy counts, and the jury unanimously found defendant guilty of each of the separately charged offenses or one of the lesser-included ones. State v. Graham, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 175 (Tenn. Crim. App. Mar. 8, 2016).

4. Jury Instructions.

Defendant failed to show that a clear and unequivocal rule of law was breached or that one of his substantial rights was adversely affected when the trial court failed to instruct the jury on attempt, and he was not entitled to plain error relief, because the evidence at trial showed that all three episodes of theft were completed and did not support an inference of guilt on the lesser included offense of attempted theft. State v. Morrison, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 165 (Tenn. Crim. App. Mar. 4, 2016).

5. Evidence.

In a trial for conspiracy to possess with intent to sell or deliver heroin, in violation of T.C.A. §§ 39-12-103 and 39-17-417, the trial court acted within its discretion in allowing testimony establishing the street value of the drugs seized from the vehicle driven by defendant because the value of the drugs was relevant to establish defendant's intent to sell or deliver. State v. Martinez, 372 S.W.3d 598, 2011 Tenn. Crim. App. LEXIS 809 (Tenn. Crim. App. Oct. 27, 2011), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 188 (Tenn. Mar. 9, 2012).

Post-conviction court properly denied defendant's petition claiming ineffective assistance of counsel because counsel made an informed, strategic decision not to seek severance where a jury might find defendant was the leader in the offense, a co-defendant's attorney had unsuccessfully filed a motion to sever, and the charges involved conspiracy, which required the State prove the involvement of two or more persons. Murchison v. State, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 551 (Tenn. Crim. App. July 23, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 688 (Tenn. Nov. 15, 2018).

6. —Sufficient.

The record supported a finding that the defendant was guilty of conspiracy to commit aggravated robbery where the defendant and codefendant admitted calling the victim from a pay phone prior to the commission of the crime in order to determine whether the victim was home, and the defendant possessed a tire iron when entering the victim's residence, implying that the defendant anticipated a confrontation. State v. Price, 46 S.W.3d 785, 2000 Tenn. Crim. App. LEXIS 597 (Tenn. Crim. App. 2000), review or rehearing denied, — S.W.3d —, 2001 Tenn. LEXIS 146 (Tenn. Feb. 26, 2001).

Evidence was sufficient to sustain defendants' convictions for conspiracy to possess with intent to sell or deliver a Schedule II substance. State v. Reed, 845 S.W.2d 234, 1992 Tenn. Crim. App. LEXIS 645 (Tenn. Crim. App. 1992).

The evidence was sufficient to sustain defendant's conspiracy conviction where a witness testified that she saw the defendant, victim and two other people leave the job center together, the defendant and the two other people later returned without the victim, defendant confessed to the witness that she had killed the victim, the witness's testimony corroborated defendant's confession in which she said she and a second person had killed the victim, and blood stains matching the victim were found on the defendant's and the second person's clothing. State v. Pike, 978 S.W.2d 904, 1998 Tenn. LEXIS 545 (Tenn. 1998), rehearing denied,  State v. Pike, — S.W.3d— , 1998 Tenn. LEXIS 704 (Tenn. 1998), cert. denied, Pike v. Tennessee, 526 U.S. 1147, 119 S. Ct. 2025, 143 L. Ed. 2d 1036, 1999 U.S. LEXIS 3718 (1999).

Defendant's argument that because he is blind, he necessarily required the assistance and cooperation of another person to sell or deliver cocaine, and that therefore, a conviction for conspiracy would constitute double jeopardy, failed because the offenses of delivering or selling cocaine and the offense of conspiracy to deliver or sell cocaine contain different elements. State v. Thornton, 10 S.W.3d 229, 1999 Tenn. Crim. App. LEXIS 1045 (Tenn. Crim. App. 1999), review or rehearing denied, — S.W.3d —, 2000 Tenn. LEXIS 189 (Tenn. Apr. 10, 2000).

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 for conspiracy under T.C.A. § 39-12-103(a) even though he was in Shreveport, Louisiana because evidence of the correspondence between the two defendants established that they mutually desired the elimination of the victim, and they discussed 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 sustain defendants'  convictions for conspiracy to possess with intent to sell more than seventy pounds of marijuana within one thousand feet of a school zone because all defendants met at a parking lot beforehand and each either participated in the delivery of marijuana to a carwash or placed himself in position to assist in the drug transaction. State v. Vasques, 221 S.W.3d 514, 2007 Tenn. LEXIS 243 (Tenn. 2007), review or rehearing denied, — S.W.3d —, 2007 Tenn. LEXIS 297 (Tenn. 2007).

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).

Evidence clearly established that defendant conspired with one person for the delivery of more than 300 grams of cocaine and that defendant conspired with another person to possess more than 300 grams of cocaine with intent to deliver. Defendant's presence alone in an apartment at the time officers entered and defendant's knowledge of the key to a lock box established defendant's ability to reduce the marijuana, cocaine, and handguns found to defendant's actual possession at any moment. State v. Elliot, 366 S.W.3d 139, 2010 Tenn. Crim. App. LEXIS 294 (Tenn. Crim. App. Apr. 9, 2010), appeal denied, — S.W.3d —, 2010 Tenn. LEXIS 802 (Tenn. Aug. 26, 2010).

While most of the evidence was circumstantial, it was sufficient beyond a reasonable doubt to sustain a conviction of conspiracy to possess with intent to sell or deliver heroin, in violation of T.C.A. §§ 39-12-103 and 39-17-417, where defendant was paid to help drive the codefendant's vehicle, which contained hidden black tar heroin, across the country, he was shaking during the vehicle stop, he backed away when asked about the presence of illegal drugs, and he was unable to provide the last name of the codefendant. State v. Martinez, 372 S.W.3d 598, 2011 Tenn. Crim. App. LEXIS 809 (Tenn. Crim. App. Oct. 27, 2011), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 188 (Tenn. Mar. 9, 2012).

Defendant's claims that the evidence was insufficient to support his conviction for conspiracy to commit kidnapping were without merit under T.C.A. § 39-12-103(a) because circumstantial evidence abounded in the record in support of the jury's conclusion that defendant participated in a group conspiracy to kidnap the victim and that the conspiracy was separate and apart from any conspiracy to purchase illegal drugs. 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 supported defendants'  convictions for conspiracy to deliver 300 grams or more of cocaine in a drug-free school zone as the evidence showed that they entered and exited the home from which they obtained the cocaine together, that they went to a pickup truck after exiting the home and concealed the cocaine together in the engine compartment of the truck, and that they transported it from the home together after they concealed it in the truck. A reasonable jury could have inferred that defendants possessed 300 grams or more of cocaine with the intent to deliver, and the jury could have reasonably inferred that defendants agreed to commit the offense and committed an overt act in furtherance of the crime. State v. Vasquez, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 971 (Tenn. Crim. App. Nov. 28, 2012), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 325 (Tenn. Mar. 20, 2013), dismissed, Araguz v. Leibach, — F. Supp. 2d —, 2016 U.S. Dist. LEXIS 102538 (M.D. Tenn. Aug. 4, 2016), dismissed, Vasquez v. Phillips, — F. Supp. 2d —, 2020 U.S. Dist. LEXIS 6877 (M.D. Tenn. Jan. 15, 2020).

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).

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 defendant conspired with another to rob the victim, acted with the intent to rob the victim through the use of a deadly weapon, and was in possession of a firearm with the intent to go armed on a college campus supported his convictions for aggravated robbery, conspiracy to commit aggravated robbery, and unlawful possession of a firearm on a college campus. State v. Spicer, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 814 (Tenn. Crim. App. Nov. 1, 2016).

There was evidence from which a jury could find defendant guilty of conspiracy to sell and deliver a Schedule II controlled substance because defendant and his co-conspirator acted in concert to sell cocaine to a confidential informant (CI); defendant knowingly solicited, negotiated, and arranged for the drug sale, and he provided directions, access to the co-conspirator and was the person designated to literally hand the drugs over to the CI. State v. Smith, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 18 (Tenn. Crim. App. Jan. 13, 2017).

Evidence that second defendant wanted his wife killed, second defendant conducted several internet searches regarding the penalties for accidentally shooting and killing a person, first defendant approached a potential shooter and arranged a meeting with the shooter and second defendant, and first defendant provided the shooter with an initial payment was sufficient to sustain defendants'  convictions for conspiracy to commit first degree murder. State v. Patel, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 767 (Tenn. Crim. App. Aug. 25, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 12 (Tenn. Jan. 17, 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).

Sufficient evidence supported defendant's conviction for facilitating a conspiracy to possess methamphetamine with the intent to sell or deliver in a drug-free zone because a rational juror could find defendant knowingly substantially facilitated the conspiracy. State v. Cole, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 824 (Tenn. Crim. App. Nov. 5, 2018).

Defendant's conviction for conspiracy to commit first degree murder was supported by evidence that defendant and others worked to coordinate her father and her friend going to the victims'  house to kill them. State v. Potter, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 71 (Tenn. Crim. App. Feb. 5, 2019).

All three defendants were involved in the events that led up to and included the victim's murder, and there was sufficient evidence from which the jury could have found that an accomplice's testimony was corroborated and to sustain the convictions for each defendant for first degree murder, conspiracy, attempt, employing a firearm during the commission of a dangerous felony, and reckless endangerment; they all met to discuss killing someone in retaliation for the murder of one defendant's sister earlier that day, and witnesses identified them. State v. Clayton, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 458 (Tenn. Crim. App. July 31, 2019), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 556 (Tenn. Dec. 10, 2019).

Evidence was sufficient to support defendant's drug convictions because each of the co-conspirators testified that defendant was in charge of a network that trafficked controlled substances from Detroit to Knoxville, recorded phone calls and text messages corroborated that defendant was in charge of the drug network, the controlled buys took place within drug-free zones, defendant answered the same phone number used by a coconspirator to set up the controlled buys, multiple people testified that defendant delivered heroin and opiate pills to members of the conspiracy, and officers seized drugs at locations where defendant was known to frequent. State v. Winbush, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 198 (Tenn. Crim. App. Mar. 24, 2020), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 453 (Tenn. Aug. 6, 2020).

Trial court properly sentenced defendants to 21 and/or 25 years of incarceration after a jury convicted them of conspiracy to possess with the intent to sell heroin within 1000 feet of a drug-free school zone because the trial court made an explicit finding that a conspiracy existed—the first defendant packaged heroin for resale into small heat-sealed Ziploc baggies while the second defendant was present, and the second and third defendants resold the heroin to others—it would be extremely impractical and inefficient to hold a pretrial hearing due to the number of defendants and witnesses, the trial court could admit the co-conspirators'  statements before determining that a conspiracy existed. State v. Williams, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 317 (Tenn. Crim. App. May 4, 2020), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 521 (Tenn. Sept. 16, 2020).

Evidence was sufficient to support defendant's convictions of the sale of a Schedule II drug and conspiracy because an officer testified that he saw defendant pass the bottle of the purported drug to the accomplice, which the accomplice then gave to the officer, and when defendant and the accomplice were subsequently pulled over following the transaction, defendant had $150 on him, the exact amount the officer paid for the drug, but the accomplice had no money on him. State v. Savely, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 443 (Tenn. Crim. App. June 25, 2020), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 491 (Tenn. Oct. 7, 2020).

Evidence was sufficient to support defendant's conviction of conspiracy to sell over 300 grams of methamphetamine because it showed that he supplied methamphetamine to the co-conspirator at the direction of another co-conspirator, the weight of the methamphetamine involved was over 300 grams, defendant knew that the methamphetamine was delivered to Tennessee by the first co-conspirator, the first co-conspirator delivered the methamphetamine to a third co-conspirator in the county, and defendant supplied the methamphetamine on more than one occasion. State v. Castillo, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 472 (Tenn. Crim. App. July 9, 2020).

Evidence was sufficient to support second and third defendants'  convictions for aggravated robbery, theft, conspiracy, aggravated burglary, and firearms offenses, as it showed that first defendant devised a plan to conduct a home invasion and steal stuff, he enlisted others, including second and third defendants, to carry o ut the plan, and the group carried out the plan, which included the use of masks, gloves, and a gun to take the items from the victim's home. State v. Morales, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 619 (Tenn. Crim. App. Sept. 18, 2020).

Evidence was sufficient to support defendant's conviction of conspiracy to sell or deliver a controlled substance because it showed that a confidential informant (CI) purchased oxycodone and heroin from defendant on two occasions, defendant was seen on two separate occasions getting into the CI's car and going to another man's house to purchase heroin for the CI, the drugs provided by the CI were tested and determined to be oxycodone and heroin, and the testimony at trial revealed that on two separate occasions defendant purchased heroin from another man to sell to the CI. State v. Woods, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 667 (Tenn. Crim. App. Oct. 12, 2020).

7. —Insufficient.

Where the jury determined that only one actor conspired to sell the cocaine, and only one actor conspired to deliver it, no conspiracy was established. State v. Copeland, 983 S.W.2d 703, 1998 Tenn. Crim. App. LEXIS 1337 (Tenn. Crim. App. 1998).

Evidence was insufficient to support defendant's conviction of conspiracy to possess marijuana where the record was devoid of any conspiratorial conduct between defendant and his son, a single drug transaction that took place on defendant's six-acre property was insufficient to establish a conspiracy, and the fact that marijuana, a large amount of money, and guns were found in defendant's home did not show that he agreed to participate in the conspiracy. 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).

Evidence was insufficient to support defendant's conviction of conspiracy to launder money where the record failed to show that he was aware of and agreed to participate in his son's drug trafficking organization and all of the money seized from defendant's home was minted prior to 2000 which meant that it was more than likely obtained prior to the drug conspiracy. 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).

8. Sentencing.

Trial judge committed no error by finding that T.C.A. 40-35-114(10) applied because it was defendant's decision to permit the victim to be shot, and for that shooting to continue until all ammunition was exhausted that substantially increased the victim's risk of death. Those facts were entirely separate and apart from those necessary to establish that defendant agreed with one or more other persons to kidnap the victim; consequently, it was not error for the trial judge to apply that enhancement factor to defendant's conspiracy sentence. 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).

Trial court did not abuse its discretion by sentencing defendant to five years in prison for conspiracy to sell and deliver more than 0.5 grams of methamphetamine where it appropriately weighed the enhancing and mitigating factors under T.C.A. §§ 40-35-113, 40-35-114 and the evidence showed that defendant had participated in prior criminal conduct and the trial court acknowledged that defendant gave a considerable amount of information to law enforcement. State v. Mohssin, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 756 (Tenn. Crim. App. Oct. 6, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 74 (Tenn. Jan. 26, 2017).

9. Lesser Included Offenses.

While the facts of the case, defendant's sole act of firing one bullet toward the occupants of the apartment, would support a conviction for reckless endangerment by discharging a firearm into a habitation or reckless endangerment committed with a deadly weapon, these crimes are not lesser-included offenses of attempted second degree murder, with which defendant was charged. 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).

10. Jurisdiction and Venue.

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).

NOTES TO DECISIONS

1. 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).

NOTES TO DECISIONS

1. Waiver of Defenses.

Because the statutory defense of T.C.A. § 39-12-105(c) could be waived in a voluntary guilty plea as it was non-jurisdictional, the inmate stood convicted at most by a voidable, but not void, judgment; therefore, he was not entitled to habeas corpus relief from his conviction of attempted especially aggravated kidnapping under T.C.A. § 39-13-305. State v. Cook, 250 S.W.3d 922, 2007 Tenn. Crim. App. LEXIS 736 (Tenn. Crim. App. Sept. 17, 2007), appeal denied, — S.W.3d —, 2008 Tenn. LEXIS 39 (Tenn. Jan. 28, 2008).

NOTES TO DECISIONS

1. Construction.

After a mistrial, double jeopardy did not preclude a retrial on the charge of conspiracy to commit first degree murder after a conviction on the charge of criminal responsibility for criminally negligent homicide because the elements were not the same under the test in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306, 1932 U.S. LEXIS 875 (1932). State v. Myers, — S.W.3d —, 2007 Tenn. Crim. App. LEXIS 38 (Tenn. Crim. App. Jan. 19, 2007).

Defendant's sentences of incarceration and death did not constitute multiple punishments for the same conduct in violation of the U.S. Const. amend. 5 because the Blockburger  test was satisfied, as first-degree murder under T.C.A. § 39-13-202(a)(1) required proof of a killing but did not require proof of an argument to commit a killing, as required under T. C.A. § 39-12-103(a). State v. Stephenson, 195 S.W.3d 574, 2006 Tenn. LEXIS 454 (Tenn. 2006).

Trial court improperly merged defendant's conspiracy conviction into her convictions for first degree premeditated murder and failed to impose a sentence for that conviction because this section provides that provides that a person may be convicted of conspiracy and the offense which was the object of the conspiracy. State v. Potter, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 73 (Tenn. Crim. App. Feb. 5, 2019).

2. Merger.

Trial court erred in merging the conspiracy conviction because defendant could be convicted of both conspiracy and murder. State v. Potter, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 71 (Tenn. Crim. App. Feb. 5, 2019).

NOTES TO DECISIONS

1. Application.

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).

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).

Defendant's conviction for attempted aggravated rape was not barred by the statute of limitations, T.C.A. § 40-2-101(b)(1)-(2), because the John Doe arrest warrant and DNA profile commenced the prosecution against defendant in a timely fashion and tolled the statute of limitations until he was identified and apprehended; a John Doe warrant coupled with a DNA profile of an unknown suspected offender obtained before the expiration of the applicable statute of limitations may validly commence a criminal prosecution and toll the statute of limitations. State v. Burdick, — S.W.3d —, 2011 Tenn. Crim. App. LEXIS 886 (Tenn. Crim. App. Dec. 2, 2011), aff'd, 395 S.W.3d 120, 2012 Tenn. LEXIS 903 (Tenn. Dec. 18, 2012).

Evidence was sufficient to sustain defendant's conviction for attempted theft of property valued at $10,000 or more but less than $60,000 where a bank branch manager's testimony estimated the amount in the ATM at $60,000, but admitted on cross-examination that it could have been $58,000, and a rational trier of fact could had found from that testimony that the value of the property taken was more than $10,000. State v. Dunn, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 547 (Tenn. Crim. App. July 23, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 778 (Tenn. Dec. 5, 2018).

2. Sentence.

Defendant's consecutive sentences for second degree murder, attempted voluntary manslaughter, and employing a firearm during the commission of a dangerous felony while having a prior felony conviction were appropriate because the sentence for employment of a firearm was statutorily required to be consecutive to the sentence for the accompanying dangerous felony conviction; as for the other two convictions, defendant was a dangerous offender as his behavior indicated little or no regard for human life and no hesitation about committing a crime in which the risk to human life was high; and the extended confinement was necessary to protect society from defendant's behavior and was reasonably related to the underlying offenses. 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).

Length of defendant's sentences for second degree murder, attempted voluntary manslaughter, and employing a firearm during the commission of a dangerous felony while having a prior felony conviction were appropriate because the sentences were within the applicable ranges; and the trial court identified several enhancing factors on the record as defendant had one prior felony and one prior misdemeanor drug conviction in addition to a prior felony conviction for aggravated assault, and he was on probation at the time of the current offense and previously had a sentence of probation revoked. 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).

Record supported the trial court's findings that defendant was a dangerous offender, as the offense took place during the day in a public location, and the trial court found that consecutive sentences were necessary to protect the public; the trial court did not abuse its discretion in ordering defendant to serve his sentences for especially aggravated robbery and attempted voluntary manslaughter consecutively. State v. Steed, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 343 (Tenn. Crim. App. May 5, 2017).

Others were in the area when defendant began shooting, and thus the trial court did not abuse its discretion in applying the enhancement factor regarding no hesitation to commit a crime when the risk to human life was high, plus nothing established that the trial court wholly departed from the statutes in applying the various enhancement factors and within-range sentences; thus, there was no abuse of discretion in defendant's sentences of 23 years for aggravated robbery, five years for aggravated assault, and four years for attempted voluntary manslaughter. State v. Steed, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 343 (Tenn. Crim. App. May 5, 2017).

Trial court erred when classifying defendant's attempt to deliver 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).

Defendant's seven-year sentence for robbery was not excessive because it was within the sentence range for a Range II multiple offender and the presentence report supported the trial court's application of an enhancement factor for defendant's history of criminal convictions. State v. Ketchum, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 427 (Tenn. Crim. App. May 23, 2017).

In a case in which defendant was convicted of attempted aggravated sexual battery, the trial court did not abuse its discretion in denying defendant probation because, while he pled guilty to the reduced charge of attempted aggravated sexual battery, the evidence supported the conclusion that he committed more than one completed aggravated sexual battery on his adopted daughter while she was under 13 years old; he obtained custody of the victim, removing her from the guardianship of others who could have protected her from him; and the trial court's finding that the presentence report was very disturbing supported the conclusion that it found the crime to be especially shocking, reprehensible, offensive, and of an exaggerated degree. State v. Sexton, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 8 (Tenn. Crim. App. Jan. 5, 2018).

In a case in which defendant was convicted of attempted aggravated sexual battery, the trial court did not abuse its discretion in imposing a five-year sentence because defendant was eligible for a sentence of three to six years; and, although the trial court misapplied the enhancement factor that defendant committed the crime to gratify his desire for pleasure or excitement as that factor was an element of attempted aggravated sexual battery, the trial court properly found as a separate enhancement factor that defendant abused a position of trust when he terminated the parental rights of the victim's biological parents and then subsequently sexually abused her. State v. Sexton, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 8 (Tenn. Crim. App. Jan. 5, 2018).

Defendant's within-range sentence for attempted second-degree murder was proper because (1) statutory factors were considered, and (2) probation was properly denied based on avoiding depreciating the seriousness of the crime, rather than the crime's elements. 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).

Attempted aggravated sexual battery is a Class C felony and attempted sexual battery is a Class A misdemeanor. McKaughan v. State, — S.W.3d —, 2021 Tenn. Crim. App. LEXIS 21 (Tenn. Crim. App. Jan. 13, 2021).

39-12-201. Short title.

This part shall be known and may be cited as the “Racketeer Influenced and Corrupt Organization (RICO) Act of 1989.”

Acts 1989, ch. 591, § 1.

Cross-References. Drug interdiction programs, financial incentives for counties, title 38, ch. 11, part 2.

Forfeiture of real property due to illegal drug-related activities, § 53-11-452.

Law Reviews.

The Use of Collateral Estoppel in Private Civil RICO Actions (Laura Ginger), 54 Tenn. L. Rev. 31 (1986).

39-12-202. Legislative intent.

1. The general assembly hereby finds and declares that an effective means of punishing and deterring criminal activities of organized crime is through the forfeiture of profits acquired and accumulated as a result of such criminal activities. It is the intent of the general assembly that this part be used by prosecutors to punish and deter only such criminal activities.
2. 1. It is not the intent of the general assembly that isolated incidents of felony conduct be prosecuted under this part, but only an interrelated pattern of criminal activity, the motive or effect of which is to derive pecuniary gain.
   2. Nor is it the intent of the general assembly that employers or owners of businesses or corporations that are licensed to dispense controlled substances in this state be subject to this part because of violations of this part committed by employees of the businesses or corporations, if the employers or owners did not know or have reason to know of the violations.
   3. This section shall be construed to further the intent stated within this part.

Acts 1989, ch. 591, § 1.

39-12-203. Part definitions.

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

1. 1. “Beneficial interest” means either of the following:
      1. The interest of a person as a beneficiary under any trust arrangement pursuant to which a trustee or any other person holds legal or record title to personal or real property for the benefit of the person; or
      2. The interest of a person under any other form of express fiduciary arrangement pursuant to which any other person holds legal or record title to real or personal property for the benefit of the person;
   2. “Beneficial interest” does not include the interest of a stockholder in a corporation or the interest of a partner in either a general partnership or a limited partnership;
2. “Documentary material” means any book, paper, document, writing, drawing, graph, chart, photograph, phono record, magnetic tape, computer print-out, or other data compilation from which information can be obtained or from which information can be translated into usable form or other tangible item;
3. “Enterprise” means any individual, sole proprietorship, partnership, corporation, business trust, union chartered under the laws of this state, or other legal entity, or any unchartered union, association, or group of individuals associated in fact, although not a legal entity, and it includes illicit as well as licit enterprises and governmental, as well as other entities, including criminal gangs, as defined in § 40-35-121(a);
4. “Innocent person” includes bona fide purchasers and victims;
5. “Investigative agency” means the office of the attorney general and reporter;
6. “Pattern of racketeering activity” means engaging in at least two (2) incidents of racketeering conduct that have the same or similar intents, results, accomplices, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated incidents; provided, that at least one (1) of such incidents occurred after July 1, 1986, and that the last of the incidents occurred within two (2) years after a prior incident of racketeering conduct;
7. “Person” means any individual or entity holding or capable of holding a legal or beneficial interest in property;
8. “Personal property” includes any personal property, or any interest in personal property, or any right, including bank accounts, debts, corporate stocks, patents or copyrights. Personal property and beneficial interest in personal property are deemed located where the trustee is, the personal property is, or the instrument evidencing the right is;
9. “Racketeering activity” means to commit, to attempt to commit, to conspire to commit, or to solicit, coerce, or intimidate another person to commit an act for financial gain that is a criminal offense involving controlled substances, and the amount of controlled substances involved in the offense is included under § 39-17-417(i) and (j) and its subdivisions or involving aggravated sexual exploitation of a minor, especially aggravated sexual exploitation of a minor under §§ 39-17-1004(b)(1)(A) and 39-17-1005(a)(1) or to commit, attempt to commit, conspire to commit, or to solicit, coerce, or intimidate another person to commit a criminal gang offense, as defined in § 40-35-121(a);
10. “Real property” means any real property situated in this state or any interest in the real property, including, but not limited to, any lease of or mortgage upon such real property. Real property and beneficial interest in real property are deemed to be located where the real property is located;
11. “RICO lien notice” means the notice described in § 39-12-207;
12. 1. “Trustee” means any of the following:
       1. Any person who holds legal or record title to real or personal property in which any other person has a beneficial interest; or
       2. Any successor trustee to one (1) of the persons in subdivision (12)(A)(i);
    2. “Trustee” does not include any person serving as a fiduciary appointed by a court to administer an estate or acting as a trustee of any testamentary trust or as a trustee of any indenture of trust under which any bonds have been or are to be issued; and
13. “Unlawful debt” means any money or other thing of value constituting principal or interest of a debt that is legally unenforceable in this state in whole or in part, because the debt was incurred or contracted in violation of:
    1. Chapter 17, part 4 of this title, and the amount of controlled substances involved in the violation is included under § 39-17-417(i) or (j);
    2. Sections 39-17-1004(b)(1)(A) and 39-17-1005(a)(1), involving especially aggravated sexual exploitation of a minor;
    3. Section 39-13-309, involving trafficking for commercial sex acts;
    4. Section 39-13-515, involving promoting prostitution;
    5. Section 39-13-514(b)(3)(A), involving patronizing prostitution;
    6. Section 39-13-528(a), involving solicitation of a minor; or
    7. Section 39-13-529, involving soliciting sexual exploitation of a minor, exploitation of a minor by electronic means.

Acts 1989, ch. 591, § 1; 1992, ch. 937, §§ 1, 2; 2012, ch. 1090, §§ 1, 2; 2013, ch. 278, § 1.

39-12-204. Unlawful activities.

1. It is unlawful for any person who has, with criminal intent, received any proceeds derived, directly or indirectly, from a pattern of racketeering activity or through the collection of an unlawful debt to use or invest, whether directly or indirectly, any part of the proceeds or the proceeds derived from the use or investment thereof, in the acquisition of any title to or any right, interest, or equity in, real or personal property or in the establishment or operation of any enterprise.
2. It is unlawful for any person, through a pattern of racketeering activity or through the collection of an unlawful debt, to acquire or maintain, directly or indirectly, an interest in or control of any enterprise of real or personal property.
3. It is unlawful for any person employed by, or associated with, any enterprise to knowingly conduct or participate, directly or indirectly, in the enterprise through a pattern of racketeering activity or the collection of any unlawful debt.
4. It is unlawful for any person to conspire or endeavor to violate subsection (a), (b) or (c).
5. Multiple and alternative violations of this section shall be alleged in multiple separate counts, with the factual basis for the alleged predicate acts set forth in each count. A person may only be convicted either of one (1) criminal violation of this section, including a conviction for conspiring to violate this section, or for one (1) or more of the predicate acts, but not both. The state shall not be required to elect submission to the jury of the several counts.
6. In order to convict a person or persons under this part, based upon a conspiracy to violate any subsection of this section, the state must prove that there was a meeting of the minds between all co-conspirators to violate this part and that an overt act in furtherance of the intention was committed.

Acts 1989, ch. 591, § 1.

Cross-References. Application for consent to petition to convene investigative grand jury, § 40-12-201.

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

Part definitions, § 39-12-203.

39-12-205. Penalties.

1. Any person convicted of engaging in activity in violation of this part commits a Class B felony and, upon conviction, shall be fined not more than two hundred fifty thousand dollars ($250,000) or sentenced to imprisonment from within Range II, unless the person qualifies for a higher range, or both.
2. 1. In lieu of a fine otherwise authorized by law, any person convicted of engaging in conduct in violation of this part, through which pecuniary value is derived, or by which personal injury or property damage or other loss is caused, may be sentenced to pay a fine that does not exceed three (3) times the gross value gained or three (3) times the gross loss caused, whichever is the greater, plus court costs and the costs of investigation and prosecution, reasonably incurred.
   2. For the purposes of subdivision (b)(1) “pecuniary value” means:
      1. Anything of value in the form of money, a negotiable instrument, or a commercial interest or anything else, the primary significance of which is economic advantage; or
      2. Any other property or service that has a value in excess of five hundred dollars ($500).
3. The court shall hold a hearing to determine the amount of the fine authorized by subsection (b).
4. Any fine imposed pursuant to this section shall be fixed in accordance with § 40-35-301.

Acts 1989, ch. 591, § 1.

Cross-References. Criminal Sentencing Reform Act, title 40, ch. 35.

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

Part definitions, § 39-12-203.

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

39-12-206. Civil proceedings — Injunctions — Forfeiture of property — Future criminal actions — Statute of limitations.

1. Any circuit or chancery court may, after making due provision for the rights of innocent persons, in compliance with the Tennessee Rules of Civil Procedure, enjoin violations of this part by issuing appropriate orders and judgments, including, but not limited to:
   1. Ordering any defendant to divest the defendant of any interest in any enterprise, including real property;
   2. Imposing reasonable restrictions upon the future activities or investments of any defendant, including, but not limited to, prohibiting any defendant from engaging in the same type of endeavor as the enterprise in which the defendant was engaged in violation of this part;
   3. Ordering the dissolution or reorganization of any enterprise;
   4. Ordering the suspension or revocation of a license, permit or prior approval guaranteed to any enterprise by any agency of the state; and
   5. Ordering the forfeiture of the charter of a corporation organized under the laws of the state, or the revocation of a certificate authorizing a foreign corporation to conduct business within the state, upon finding that the board of directors or a managerial agent acting on behalf of the corporation, in conducting the affairs of the corporation, has authorized or engaged in conduct in violation of this part and that, for the prevention of future criminal activity, the public interest requires the charter of the corporation forfeited and the corporation dissolved or the certificate revoked.
2. All property, real or personal, including money, used in the course of, intended for use in the course of, derived from, or realized through, conduct in violation of this part is subject to civil forfeiture to the state. No fee paid for legal, medical or accounting service shall be subject to forfeiture under this section, unless the person or persons to whom such fee was paid had knowledge that the funds used to pay the fee were derived from activity in violation of this part. The state shall dispose of all forfeited property as soon as commercially feasible, subject to the lawful claim of any creditor. If the property is not exercisable or transferable for value by the state, the forfeiture shall expire. All forfeitures or dispositions under this section shall be made with due provision for the rights of innocent persons. The proceeds realized from forfeiture and disposition shall be promptly deposited in the criminal injuries compensation fund established by § 40-24-107.
3. Property subject to forfeiture under this section may be seized by a law enforcement officer upon court process. Seizure without process may be made, if:
   1. The seizure is incident to a lawful arrest or search or any inspection under an administrative inspection warrant; or
   2. The property subject to seizure has been the subject of a prior judgment in favor of the state in a forfeiture proceeding based upon this section.
4. If a seizure occurs under subsection (c), a forfeiture proceeding shall be instituted promptly. Property taken or detained under this section shall not be subject to replevin, but is deemed to be in the custody of the law enforcement officer making the seizure, subject only to the order of the court. When property is seized under this section, pending forfeiture and final disposition, the law enforcement officer may:
   1. Place the property under seal;
   2. Remove the property to a place designated by the court; or
   3. Require another agency authorized by law to take custody of the property and remove it to any appropriate location.
5. The office of the attorney general and reporter shall institute all civil proceedings and RICO lien notices under this part. In any action brought under this section, the circuit or chancery court shall proceed as soon as practicable to the hearing and determination.
6. In a civil proceeding, relief shall be granted in conformity with the principles that govern the granting of injunctive relief from threatened loss or damage in other civil cases, except that no showing of special or irreparable damage to the person shall have to be made. Pending final determination of a proceeding initiated under this section, the court may enter a temporary restraining order or a preliminary injunction, may require execution of satisfactory performance bond, or may take any other action, including the appointment of receiver, upon a showing of immediate danger or significant injury, including the possibility that any judgment for money damages might be difficult to execute or that such action is necessary to preserve the reachability of property subject to civil forfeiture. Following the entry of any order of civil forfeiture under this section, the trial court may enter a restraining order or injunction, require the execution of a satisfactory performance bond, or take any other action, including the appointment of a receiver, that the court deems proper to protect the interests of the plaintiff.
7. A final judgment or decree rendered in favor of the state in any criminal proceeding under this part shall estop the defendant in any subsequent civil action or proceeding as to all matters as to which such judgment or decree would be an estoppel as between the parties.
8. Notwithstanding any other law, a criminal or civil action or proceeding under this part may be commenced at any time within five (5) years after the conduct in violation of this part terminates or the cause of action accrues. If a criminal prosecution or civil action or other proceeding is brought, or intervened in, to punish, prevent or restrain any violation of this part, the running of the period of limitations prescribed by this section with respect to any cause of action arising under subsection (f) that is based in whole or in part upon any matter complained of in any such prosecution action or proceeding shall be suspended during the pendency of the prosecution action or proceeding and for two (2) years following its termination.
9. The application of one (1) civil remedy under any provision of this part shall not preclude the application of any other remedy, civil or criminal, under this part or any other law. Civil remedies under this part are supplemental and not mutually exclusive.
10. It is an element of the burden of proof in the final resolution of any civil proceeding instituted pursuant to this section that the defendant committed either the requisite predicate acts or a criminal violation of this part.
11. In any action in which the plaintiff substantially prevails, including preliminary proceedings under subsection (f), the plaintiff shall also recover reasonable attorney's fees in the trial and appellate courts and costs of investigation and litigation reasonably incurred.
12. Personal service of any process in an action under this section may be made upon any person outside the state, if the person was a principal in any conduct constituting a violation of this part in this state. The person is deemed to have thereby submitted to the jurisdiction of the courts of this state for the purposes of this section.
13. Forfeited property shall be titled in the name of the state of Tennessee and shall be disposed of in accordance with the terms of this subsection (m). The office of the attorney general and reporter may contract for property management services, including, but not limited to, the collection, securing, safekeeping, repair and disposition of property forfeited or seized. The state shall self-insure forfeited and seized property, both realty and personalty, pursuant to title 12, chapter 3, part 9. Liability claims against the state relative to forfeited and seized property shall be presented to the claims commission in accordance with its governing sections and rules.

Acts 1989, ch. 591, § 1; 1990, ch. 977, § 1.

Cross-References. Burden of proof, title 39, ch. 11, part 2.

Disposition of forfeited property, title 39, ch. 11, part 7.

Injunctions, title 29, ch. 23, part 1.

Process, title 20, ch. 2.

Remedies, title 29, ch. 23.

39-12-207. RICO lien notice — Liens — Title or interest holders — Unauthorized conveyances.

1. Upon the institution of any civil or criminal proceeding, the investigative agency, then or at any time during the pendency of the proceeding, may file a RICO lien notice in the official records of any one (1) or more counties. No filing fee or other charge is required as a condition for filing the RICO lien notice, and the clerk of the court shall, upon the presentation of a RICO lien notice, immediately record it in the official records.
2. The RICO lien notice shall be signed by the attorney general and reporter or the attorney general and reporter's designee. The notice shall be in such form as the attorney general and reporter prescribes and shall set forth the following information:
   1. The name of the person against whom the civil or criminal proceeding has been brought. In its discretion, the investigative agency may also name in the RICO lien notice any other aliases, names, or fictitious names under which the person may be known and any corporation, partnership, or other entity that is either controlled or entirely owned by the person;
   2. If known to the investigative agency, the present residence and business addresses of the person named in the RICO lien notice and of other names set forth in the RICO lien notice;
   3. A reference to the civil or criminal proceeding, stating:
      1. That a proceeding under this part has been brought against the person named in the RICO lien notice;
      2. The name of the county or counties in which the proceeding has been brought; and
      3. If known to the investigative agency at the time of filing the RICO lien notice, the case number of the proceeding;
   4. A statement that the notice is being filed pursuant to this part; and
   5. 1. The name and address of the investigative agency filing the RICO lien notice and the name of the individual signing the RICO lien notice.
      2. A RICO lien notice shall apply only to one (1) person and, to the extent applicable, any other aliases, names or fictitious names, including names of corporations, partnerships, or other entities, to the extent permitted in subdivision (b)(1).
      3. A separate RICO lien notice shall be filed for each person against whom the investigative agency desires to file a RICO lien notice under this section.
3. The investigative agency shall, as soon as practicable after the filing of each RICO lien notice, furnish to the person named in the notice either a copy of the recorded notice or a copy of the notice with a notation on the notice of the county or counties in which the notice has been recorded. The failure of the investigative agency to furnish a copy of the notice under this subsection (c) shall not invalidate or otherwise affect the notice.
4. 1. The filing of a RICO lien notice creates, from the time of its filing, a lien in favor of the state on the following property of the person named in the notice and against any other names set forth in the notice:
      1. Any real or personal property situated in the county where the notice is filed then or thereafter owned by the person or under any of the names; and
      2. Any beneficial interest in real or personal property situated in the county where the notice is filed then or thereafter owned by the person or under any of the names.
   2. The lien shall commence and attach as of the time of filing of the RICO lien notice and shall continue until expiration, termination, or release of the notice pursuant to § 39-12-208. The lien created in favor of the state shall be superior and prior to the interest of any other person in the real or personal property or beneficial interest, if the interest is acquired subsequent to the filing of the notice.
5. In conjunction with any civil proceeding:
   1. The investigative agency may file a lis pendens in any county without prior court order; in such case, any person acquiring an interest in the subject real property or beneficial interest, if the real property or beneficial interest is acquired subsequent to the filing of lis pendens, shall take the interest subject to the civil proceeding and any subsequent judgment of forfeiture; and
   2. If a RICO lien notice has been filed, the investigative agency may name as defendant, in addition to the person named in the notice, any person acquiring an interest in the real or personal property or beneficial interest subsequent to the filing of the notice. If a judgment of forfeiture is entered in the proceeding in favor of the state, the interest of any person in the property that was acquired subsequent to the filing of the notice shall be subject to the notice and judgment of forfeiture.
6. 1. A trustee who acquires actual knowledge that a RICO lien notice or a civil proceeding or criminal proceeding has been filed against any person for whom the trustee holds legal or record title to real or personal property shall immediately furnish to the investigative agency the following:
      1. The name and address of the person, as known to the trustee;
      2. The name and address, as known to the trustee, of each other person for whose benefit the trustee holds title to the real or personal property; and
      3. If requested by the investigative agency, a copy of the trust agreement or other instrument pursuant to which the trustee holds legal or record title to the real or personal property.
   2. Any trustee who fails to comply with this subsection (f) commits a Class A misdemeanor.
7. 1. Any trustee who conveys title to real or personal property for which, at the time of the conveyance, a RICO lien notice naming a person who, to the actual knowledge of the trustee, holds a beneficial interest in the trust has been filed in the county where the real or personal property is situated is liable to the state for the greatest of:
      1. The amount of proceeds received directly by the person named in the RICO lien notice;
      2. The amount of proceeds received by the trustee as a result of the conveyance and distributed to the person named in the RICO lien notice; or
      3. The fair market value of the interest of the person named in the RICO lien notice in the real or personal property so conveyed.
   2. However, if the trustee conveys the real or personal property and holds the proceeds that would otherwise be paid or distributed to the beneficiary or at the direction of the beneficiary or the beneficiary's designee, the trustee's liability shall not exceed the amount of the proceeds so held for so long as the proceeds are held by the trustee.
8. The filing of a RICO lien notice shall not constitute a lien on the record title to real or personal property as owned by the trustee, except to the extent that the trustee is named in the RICO lien notice. The investigative agency may bring a civil proceeding in any circuit or chancery court against the trustee to recover from the trustee the amount set forth in subsection (g), and the state shall also be entitled to recover investigative costs and attorney's fees incurred by the investigative agency.
9. The filing of a RICO lien notice shall not affect the use to which real or personal property or a beneficial interest owned by the person named in the RICO lien notice may be put, or the right of the person to receive any rents, or other proceeds resulting from the use and ownership, but not the sale, of the property, until a judgment of forfeiture is entered.
10. 1. This section shall not apply to any conveyance by a trustee pursuant to a court order, unless such court order is entered in an action between the trustee and beneficiary.
    2. Unless the trustee has actual knowledge that a person owning a beneficial interest in the trust is named in a RICO lien notice or is otherwise a defendant in a civil proceeding, this section shall not apply to:
       1. Any conveyance by the trustee required under the terms of the trust agreement, which trust agreement is a matter of public record prior to the filing of the RICO lien notice; or
       2. Any conveyance by the trustee to all of the persons who own beneficial interests in the trust.
11. Upon the entry of a final judgment of forfeiture in favor of the state of Tennessee, the title of the state to the forfeited property shall:
    1. In the case of real property, or a beneficial interest in the real property, relate back to the date of filing of the RICO lien notice in the official records of the county where the real property or a beneficial interest in the real property is located; and if no RICO lien notice is filed, then to the date of the filing of any notice of lis pendens under subsection (e) in the official records of the county where the real property or a beneficial interest in it is located; and if no RICO lien notice or notice of lis pendens is filed, then to the date of the recording of the final judgment of forfeiture in the official records of the county where the real property or a beneficial interest in the real property is located; and
    2. In the case of personal property, or a beneficial interest in it, relate back to the date the personal property or the beneficial interest in it was seized by the state, or the date of filing of the RICO lien notice in the official records of the county where the personal property or a beneficial interest in the personal property is located; but if the property was not seized and no RICO lien notice was filed, then to the date of the recording of the final judgment of forfeiture in the official records of the county where the personal property, or a beneficial interest in the personal property, is located.
12. If real or personal property, or a beneficial interest in the real or personal property, subject to forfeiture is conveyed, alienated, disposed of, or otherwise rendered unavailable for forfeiture after the filing of the RICO lien notice, or after the filing of a civil proceeding or criminal proceeding, whichever is earlier, the attorney general and reporter may institute an action in any circuit or chancery court against the person named in the RICO lien notice or the defendant in the civil proceeding or criminal proceeding; and the court shall enter final judgment against the person named in the RICO lien notice or the defendant in the civil proceeding or criminal proceeding in an amount equal to the fair market value of the property or any beneficial interest in the real or personal property, together with investigative costs and attorney's fees incurred by the investigative agency in the action. If a civil proceeding is pending, such action shall be filed only in the court where such civil proceeding is pending.
13. If real or personal property, or a beneficial interest in the real or personal property, subject to forfeiture is conveyed, alienated, or otherwise disposed of after the filing of the RICO lien notice, or after the filing of a civil proceeding or criminal proceeding, whichever is earlier, the state may treat the disposal as a fraudulent and preferential conveyance.
14. Notwithstanding any other provision of this section, any person who has perfected a security interest in real or personal property, or a beneficial interest in it, for the payment of an enforceable debt or other similar obligation prior to the filing of a RICO lien notice or a lis pendens in reference to the property or interest may foreclose the interest as otherwise provided by law. The foreclosure of the interest shall, insofar as it is practicable, be made in such a fashion that it will not otherwise interfere with a forfeiture under this part.

Acts 1989, ch. 591, § 1.

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

39-12-208. RICO lien notice — Term — Renewal — Release — Termination.

1. The term of a RICO lien notice shall be for a period of six (6) years from the date of filing, unless a renewal RICO lien notice has been filed by the investigative agency; in such case, the term of the renewal RICO lien notice shall be for a period of six (6) years from the date of its filing. The investigative agency shall be entitled to only one (1) renewal of the RICO lien notice.
2. The investigative agency filing a RICO lien notice may release, in whole or in part, the RICO lien notice or may release any specific real or personal property or beneficial interest from the RICO lien notice, upon such terms and conditions as it may determine. A release of a RICO lien notice executed by the investigative agency may be filed in the official records of any county. No charge or fee shall be imposed for the filing of a release of a RICO lien notice.
3. If no civil proceeding has been instituted by the investigative agency seeking a forfeiture of any property owned by the person named in the RICO lien notice, the acquittal in the criminal proceeding of the person named in the RICO lien notice, or the dismissal of the criminal proceeding shall terminate the RICO lien notice. In such case, the filing of the RICO lien notice shall be of no effect. If a civil proceeding has been instituted, and if the criminal proceeding has been dismissed or the person named in the RICO lien notice has been acquitted in the criminal proceeding, the RICO lien notice shall continue for the duration of the civil proceeding.
4. If no civil proceeding is then pending against the person named in a RICO lien notice, the person named in the RICO lien notice may institute an action in the county where the notice has been filed against the investigative agency that filed the notice seeking a release or extinguishment of the notice. In such case:
   1. The court shall, upon the motion of the person named in the RICO lien notice, immediately enter an order setting a date for hearing, which date shall be not less than five (5) nor more than ten (10) days after the suit has been filed; and the order, along with a copy of the complaint, shall be served on the investigative agency within three (3) days after the institution of the suit. At the hearing, the court shall take evidence on the issue of whether any real or personal property or beneficial interest owned by the person is covered by the RICO lien notice or is otherwise subject to forfeiture under this part; unless the investigative agency shows probable cause that the RICO lien notice is applicable to the person or that any real or personal property or beneficial interest owned by the person is subject to forfeiture under this part, the court shall enter a judgment extinguishing the RICO lien notice or releasing the real or personal property or beneficial interest from the RICO lien notice;
   2. The court shall immediately enter its order releasing from the RICO lien notice any specific real or personal property or beneficial interest, if a sale of the real or personal property or beneficial interest is pending and the filing of the notice prevents the sale of the property or interest; provided, that the proceeds resulting from the sale of the real or personal property or beneficial interest shall be deposited to the credit of the clerk of the court, subject to the further order of the court; and
   3. At the hearing set forth in subdivision (d)(1), the court may release any real or personal property or beneficial interest from the RICO lien notice, upon the posting by the person of such security as is equal to the value of the real or personal property or beneficial interest owned by the person.
5. If a civil proceeding is pending against a person named in a RICO lien notice, the court, upon motion by the person, may grant the relief set forth in this section.

Acts 1989, ch. 591, § 1.

Cross-References. Part definitions, § 39-12-203.

39-12-209. Investigative agencies — Oaths — Subpoenas — Evidence.

1. If, pursuant to the civil enforcement provisions of this part, the investigative agency has reason to believe that a person or other enterprise has engaged in, or is engaging in, activity in violation of this part, the investigative agency may administer oaths or affirmations, subpoena witnesses or material, and collect evidence pursuant to the Tennessee Rules of Civil Procedure.
2. If matter that the investigative agency seeks to obtain by the subpoena is located outside the state, the person or enterprise subpoenaed may make the matter available to the investigative agency or its representative for examination at the place where the matter is located. The investigative agency may designate representatives, including officials of the jurisdiction in which the matter is located, to inspect the matter on its behalf and may respond to similar requests from officials of other jurisdictions.
3. Upon failure of a person or enterprise without lawful excuse to obey a subpoena, and after reasonable notice to the person or enterprise, the investigative agency may apply to the circuit or chancery court for the judicial district in which the person or enterprise resides, is found, or transacts business for an order compelling compliance.

Acts 1989, ch. 591, § 1.

Cross-References. Part definitions, § 39-12-203.

39-12-210. Remedies of creditors and innocent persons.

1. Any creditor or innocent person who has an interest in any real or personal property that is the subject of any civil suit filed by the investigative agency shall have the right to intervene in the civil suit.
2. 1. If there is no civil suit pending, any creditor or innocent person who has an interest in any real or personal property that is the subject of any RICO lien notice may apply to the investigative agency for a release of the property. The investigative agency shall, within thirty (30) days of such application, either release the property or deny the application. If the investigative agency denies the application for relief, the creditor or innocent person may petition the appropriate chancery or circuit court for release of the lien. The hearing shall be held within thirty (30) days of receipt of process by the investigative agency.
   2. Upon application for release or hearing pursuant to this section, the real or personal property, or portion of the real or personal property in which a creditor or innocent person has an interest, shall be released, upon a finding that the creditor or innocent person is not a participant with the defendant in the enterprise or racketeering activity, and did not know, or have reason to know, of such activity prior to the filing of a RICO lien notice.
3. The remedies provided to creditors and innocent persons in this section are in addition to any other rights or remedies provided by this part or by law.

Acts 1989, ch. 591, § 1.

Cross-References. Part definitions, § 39-12-203.

Part 3
Crimes of Force or Violence

NOTES TO DECISIONS

1. Relationship with Other Laws.

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).

T.C.A. § 39-13-111(b) does not categorically qualify as a misdemeanor crime of domestic violence for purposes of 18 U.S.C. § 922(g)(9). Violation of a statute that builds on T.C.A. § 39-13-101 but makes it a crime only to cause “bodily injury,” serious or not, does not require the use of violent force.  United States v. Castleman, 695 F.3d 582, 2012 FED App. 344P, 2012 U.S. App. LEXIS 19635 (6th Cir. Sept. 19, 2012).

Juvenile petitions conclusively showed that defendant was convicted under the (a)(1) variant of Tennessee aggravated assault; neither the (a)(2) nor the (a)(3) variant of aggravated assault would have been a lesser-included offense because the original attempted murder charge did not include the elements needed for a conviction under those subsections, and it was a crime of violence under the ACCA's use-of-force clause.  Davis v. United States,  2018 FED App. 0189P (6th Cir.), — F.3d —,  2018 U.S. App. LEXIS 24163 (6th Cir. Aug. 16, 2018).

2. Elements.

For Armed Career Criminal Act (ACCA) purposes, predicate felonies did not have to be in the indictment or proven beyond a reasonable doubt; however, defendant's conviction under former T.C.A. § 39-13-102, which included recklessness through its incorporation of T.C.A. § 39-13-101, was not a categorically violent felony under either the “use of physical force” or “otherwise” clause of the ACCA. United States v. McMurray, 653 F.3d 367, 2011 FED App. 202P, 2011 U.S. App. LEXIS 16025 (6th Cir. Aug. 4, 2011).

3. —“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).

Evidence was sufficient to support defendant's conviction of aggravated burglary, given that after forcefully entering the room, defendant continued to press further and further into the room, and he retreated only after seeing that there was another person in the room and the victim started screaming, and thus it was shown that defendant entered the room without consent and that he intended to cause fear of bodily injury, if not actual injury. State v. Johnson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 872 (Tenn. Crim. App. Nov. 18, 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).

4. —“Extremely Offensive or Provocative” Physical Contact.

No reasonable jury could conclude that defendant committed an assault by “extremely offensive or provocative” physical conduct, where defendant, using a knife, stuck the victim's finger and stabbed the victim's palm; examples of extremely offensive and provocative contact include kissing without one's consent, cutting one's hair without consent, or spitting in one's face. State v. Smiley, 38 S.W.3d 521, 2001 Tenn. LEXIS 74 (Tenn. 2001).

5. —Causation.

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).

6. Election of Offenses.

Because the State adduced proof of more than one incident that each matched the allegations of the charging instrument, the election of offenses doctrine was implicated; the State's proof at trial allowed the jury to consider two incidents as each matching the single charge in the indictment for an aggravated assault, committed by violating an order of protection. State v. Smith, 492 S.W.3d 224, 2016 Tenn. LEXIS 383 (Tenn. June 24, 2016).

Defendant's aggravated assault conviction had to be reversed because the State's failure to elect an offense as to the aggravated assault charge, and the trial court's failure to require the State to do so, resulted in plain error; because the State failed to elect the specific instance for which it wanted the jury to consider for the charge, a clear and unequivocal rule of law was breached, and defendant's constitutional right to a unanimous verdict was adversely affected. State v. Smith, 492 S.W.3d 224, 2016 Tenn. LEXIS 383 (Tenn. June 24, 2016).

Neither defendant nor co-defendant one was entitled to relief based on their claims that the state failed to elect offenses as: (1) they were charged in the indictment with aggravated assault for intentionally and/or knowingly causing serious bodily injury to the victim; (2) the proof did not establish multiple offenses of aggravated assault such that the state was required to make an election; and (3) the trial court merged the assault convictions into their respective convictions for attempted first-degree murder and facilitation of attempted first-degree murder. State v. Brawner, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 269 (Tenn. Crim. App. May 3, 2012), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 673 (Tenn. Sept. 18, 2012).

7. Multiple Convictions.

Defendant's convictions for assault and domestic assault violated double jeopardy under U.S. Const. amend. VI and Tenn. Const. art. I, § 10 because all of the elements of assault were included in domestic assault and even though domestic assault included an element that assault did not the reverse was not true. State v. Freitas, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 762 (Tenn. Crim. App. Oct. 7, 2016).

8. Combination With Additional Criminal Charges.

In a home invasion case were the defendants were also convicted of aggravated burglary and aggravated robbery, defendants'  separate convictions for especially aggravated kidnapping of victim did not violate due process where the confinement of the victim was beyond that necessary to commit robbery, where it lessened the risk of defendant's detection, and where it increased the victim's risk of harm. (overruled to extent this case required a legal, as opposed to factual, due process evaluation) State v. Fuller, 172 S.W.3d 533, 2005 Tenn. LEXIS 773 (Tenn. 2005), cert. denied, Fuller v. Tennessee, 547 U.S. 1164, 126 S. Ct. 2321, 164 L. Ed. 2d 842, 2006 U.S. LEXIS 4190 (2006), overruled in part, State v. Osby, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 903 (Tenn. Crim. App. Nov. 2, 2012), overruled, State v. Hulse, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 242 (Tenn. Crim. App. Mar. 19, 2013), overruled, State v. Cecil, 409 S.W.3d 599, 2013 Tenn. LEXIS 637 (Tenn. Aug. 12, 2013), overruled, State v. Smith, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 955 (Tenn. Crim. App. Nov. 4, 2013), overruled, State v. Tate, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 1110 (Tenn. Crim. App. Dec. 18, 2013), overruled in part, Fuller v. Barbee, — F. Supp. 2d —, 2014 U.S. Dist. LEXIS 137295 (M.D. Tenn. Sept. 29, 2014).

9. Lesser Included Offense.

In a prosecution for attempted aggravated sexual battery, where the facts presented were susceptible to a determination that defendant's conduct toward one victim was merely the type that a reasonable person would regard as extremely offensive or provocative, rather than an attempt to make unlawful sexual contact, the trial court should have charged the jury on simple assault as a lesser included offense. 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 a prosecution for rape by force or coercion, defendants could be convicted of the lesser included offense of assault where the touching of the victim, i.e., acts of sexual intercourse, was offensive but did not rise to the level of rape. State v. Buckmeir, 902 S.W.2d 418, 1995 Tenn. Crim. App. LEXIS 6 (Tenn. Crim. App. 1995).

Class B misdemeanor assault is a lesser-included offense of aggravated sexual battery. State v. Swindle, 30 S.W.3d 289, 2000 Tenn. LEXIS 455 (Tenn. 2000), overruled in part, State v. Locke, 90 S.W.3d 663, 2002 Tenn. LEXIS 474 (Tenn. 2002).

The offense of intentionally causing “extremely offensive or provocative” physical contact should not have been submitted to the jury as a lesser included offense of aggravated assault (bodily injury) under T.C.A. § 39-13-102. State v. Smiley, 38 S.W.3d 521, 2001 Tenn. LEXIS 74 (Tenn. 2001).

Where evidence was legally sufficient to support a conviction of child abuse, as it showed that defendant held the victim down to sexually assault the victim, the victim attempted to fight off defendant, and the victim sustained bruises as a result of defendant's conduct, the trial court erred in failing to instruct the jury as to the lesser-included offense of child abuse; because the appellate court was unable to conclude beyond a reasonable doubt that the omission of a jury instruction on child abuse did not affect the outcome of the trial, the error was not harmless, and defendant's conviction for aggravated sexual battery had to be reversed and the case remanded for a new trial. State v. Elkins, 83 S.W.3d 706, 2002 Tenn. LEXIS 374 (Tenn. 2002).

Because the inmate affirmatively requested a jury instruction on the offense of aggravated assault, even though he was in error in believing that it was a lesser-included offense of attempted first-degree murder, he effectively agreed to amend the indictment to include aggravated assault; therefore, the trial court had jurisdiction to convict the inmate of aggravated assault, his conviction was not void, and he was not entitled to habeas corpus relief. Demonbreun v. Bell, 226 S.W.3d 321, 2007 Tenn. LEXIS 452 (Tenn. May 8, 2007), rehearing denied, — S.W.3d —, 2007 Tenn. LEXIS 529 (Tenn. May 25, 2007).

Defendant was improperly found guilty of aggravated sexual battery as a lesser included offense of the indicted offense of rape of a child because the evidence was insufficient to support a conviction for child abuse and neither assault, nor attempted assault was a lesser included offense of rape of a child. 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).

Defendant's aggravated assault conviction was modified to reckless endangerment because (1) the jury found serious injury but did not find an adverse effect on the victim's welfare, and (2) reckless endangerment was the next properly-charged lesser-included offense the evidence supported. State v. Hodges, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 288 (Tenn. Crim. App. Apr. 19, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 507 (Tenn. Aug. 16, 2017).

Because Class B misdemeanor assault was not a lesser-included offense of attempted rape, as assault as charged in defendant's case always involved an unlawful sexual contact whereas attempted rape did not, the trial court did not err by failing to instruct the jury on Class B misdemeanor assault as a lesser-included offense of attempted rape. State v. Durham, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 1031 (Tenn. Crim. App. Dec. 14, 2017).

Petitioner failed to show that, but for trial counsel's deficiency, the jury would have convicted him of misdemeanor assault as a lesser-included offense of aggravated sexual battery because the State presented proof that petitioner's unlawful sexual contact with the victim was for the purpose of sexual arousal or gratification; the victim's mother testified that she saw petitioner rubbing the victim's vagina over her clothes and that he had an erection. Townsend v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 105 (Tenn. Crim. App. Feb. 20, 2020), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 450 (Tenn. July 17, 2020).

10. Consent of Victim.

Where one victim admitted that he consented to defendant's sexual advances and did not claim to have suffered any bodily injury as a result of defendant's acts, assault convictions were not warranted. 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).

11. Sufficiency of Evidence.

Evidence was sufficient for conviction. State v. Buckmeir, 902 S.W.2d 418, 1995 Tenn. Crim. App. LEXIS 6 (Tenn. Crim. App. 1995).

There was ample evidence from which a rational trier of fact would conclude that driver 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, in what witnesses described as a careless manner; had a blood alcohol level which supported a finding that his blood alcohol level would have been between .04 percent and .07 percent at the time of the collision; and falsely told a police officer at the scene that a friend had been driving. 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 insufficient to sustain defendant's reckless aggravated assault convictions where there was absolutely no proof of bodily injury to either of the victims; in addition, reckless aggravated assault could not be a lesser-included offense of aggravated assault based on knowingly or recklessly causing another to reasonably fear imminent bodily injury. 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 support defendant's convictions of two counts of aggravated assault because the proof at trial established that defendant held the two victims at gunpoint and threatened to shoot them. One victim testified that he was terrified, while the second testified that he was afraid and thought that one or both of them were going to be killed. State v. Parsons, 437 S.W.3d 457, 2011 Tenn. Crim. App. LEXIS 922 (Tenn. Crim. App. Dec. 15, 2011), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 383 (Tenn. May 23, 2012).

Evidence that defendant scratched the victim's vagina, damaged the device affixed to the victim's back, causing her pain, caused the victim to have a sore forearm from the struggle, and caused discomfort to the victim's pubic area from the attack was sufficient to support defendant's conviction for assault. State v. Morris, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 58 (Tenn. Crim. App. Jan. 27, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 361 (Tenn. May 6, 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).

Although the victim denied any recollection of defendant hitting or harming her during their altercation, the officer's testimony that, when she arrived at the victim's home, the victim displayed scratches on her neck and the side of her cheek was sufficient for a rational jury to find that defendant intentionally caused bodily injury to the victim. State v. Williams, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 362 (Tenn. Crim. App. May 5, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 659 (Tenn. Sept. 23, 2016).

Evidence was sufficient to sustain defendant's convictions for aggravated assault and aggravated kidnapping because the jury credited the victim's testimony, and the testimony of other witnesses and the physical evidence corroborated her account; the victim reported defendant's abuse to an officer, who noted injuries to her face and redness to her neck, and the injuries were observable in the photographs admitted at trial. State v. Baxter, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 364 (Tenn. Crim. App. May 16, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 666 (Tenn. Sept. 23, 2016).

Evidence was sufficient to support defendant's conviction for second-degree murder where, by defendant's own admission, the victim was in the car with the door shut when he walked up and shot the passenger-side window out of the vehicle where the victim was sitting, there was no testimony that the victim was attempting to threaten defendant at that time, and defendant walked around to the front of the car, told the driver to move, and then shot the unarmed victim several more times. 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 for aggravated assault where the driver testified that defendant pulled a black and silver gun from his pants and pointed it at her, and she was terrified. 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 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 was sufficient to support defendant's conviction of aggravated assault where it showed that the victim had to have part of his intestines, his gallbladder, and half of his liver removed, he was still unable to run or ride a bicycle as a result of his injuries, and defendant was armed with a gun. State v. Jones, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 732 (Tenn. Crim. App. Sept. 26, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 45 (Tenn. Jan. 20, 2017).

Proof presented at trial was sufficient for rational trier of fact to find defendant committed an aggravated assault of his estranged wife beyond a reasonable doubt. The State proved the essential elements of aggravated assault by showing that defendant violated an active order of protection when he threatened his wife with a taser at an auction house. State v. Vinson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 728 (Tenn. Crim. App. Sept. 27, 2016).

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).

In rejecting defendant's challenge to the sufficiency of the evidence with respect to his convictions for aggravated kidnapping by bodily injury and domestic assault by bodily injury, the court of criminal appeals concluded there was sufficient evidence from which the jury could conclude that the victim's removal and confinement had criminal significance beyond that necessary to consummate the domestic assault. State v. Williams, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 211 (Tenn. Crim. App. Mar. 21, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 446 (Tenn. July 18, 2017).

Evidence was sufficient to sustain defendant's conviction for reckless aggravated assault because the victim offered extensive testimony at trial regarding being cut by defendant, and the jury accredited that testimony; a doctor testified that the victim's injuries were extensive and required surgery, and without treatment, the victim would have likely died. State v. Pittman, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 394 (Tenn. Crim. App. May 16, 2017).

Evidence that a man kicked open the victim's door, struggled with the victim causing injuries, fled out the front door, that a glove with defendant's DNA was left in the home, and that a car matching the description of the one the assailant left in was found at his fiance's home was sufficient to support defendant's convictions for aggravated burglary, vandalism, and assault. State v. Baker, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 601 (Tenn. Crim. App. July 10, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 773 (Tenn. Nov. 16, 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).

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).

Evidence was sufficient to support defendant's conviction for aggravated assault because based on the testimony of the victim alone–that defendant had a gun in defendant's hand, held the gun out the window of defendant's vehicle, and fired a shot at the victim and that, as a result, the victim feared for the victim's life–a reasonable juror could have found beyond a reasonable doubt that defendant intentionally or knowingly caused the victim to reasonably fear imminent bodily injury by the use or display of a deadly weapon. State v. Tiller, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 906 (Tenn. Crim. App. Oct. 9, 2017).

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 support defendant's conviction for reckless aggravated assault because the State of Tennessee presented evidence that defendant acted recklessly in discharging a deadly weapon into a house, causing bodily injury to the victim of the gunshot. Furthermore, defendant's admissible statements to the police established defendant's identity as the shooter. State v. Butts, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 243 (Tenn. Crim. App. Mar. 29, 2018).

Evidence supported defendant's convictions for assault and contributing to the delinquency of a minor because the testimony by the witnesses for the State of Tennessee established that defendant not only encouraged defendant's minor child to attack the minor victim and prevented other people from going to the victim's aid, but that defendant also struck the victim. The evidence further established that the victim was injured as a result of the attack State v. Edwards, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 434 (Tenn. Crim. App. June 6, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 589 (Tenn. Sept. 14, 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), dismissed, Fisher v. Genovese, — F. Supp. 2d —, 2020 U.S. Dist. LEXIS 79795 (M.D. Tenn. May 6, 2020).

Evidence supported defendant's multipe 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 aggravated assault because the victim testified that defendant squirted lighter fluid on him and attempted to ignite it, and defendant admitted to a detective and a deputy chief that she had been the aggressor. State v. Dunavant, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 794 (Tenn. Crim. App. Oct. 24, 2018).

Evidence was sufficient to support defendant's convictions for aggravated assault because, although neither shooting victim directly testified the victim was in fear during the shooting, the jury was entitled to infer the victims'  fear of imminent bodily injury as the victims were forced to hide behind vehicles as defendant began shooting at them, one victim testified to ducking and dodging bullets while attempting to shoot back at defendant, and, after the shooting ended, the victims called 911 and followed defendant until police arrived. State v. Juarez, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 175 (Tenn. Crim. App. Mar. 18, 2019).

Sufficient evidence supported defendant's convictions for attempted first degree murder, two counts of aggravated assault, reckless endangerment, and employment of a firearm during the commission of or attempt to commit a dangerous felony because the evidence showed defendant fired numerous shots at victims in the parking lot of a crowded shopping mall. State v. Chambers, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 241 (Tenn. Crim. App. Apr. 15, 2019), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 330 (Tenn. July 19, 2019).

Evidence did not establish that the victim constructively possessed any of the property taken from an apartment because the evidence did not support a conclusion that the victim had any interest in or right to the items taken from the apartment, and the victim's presence as a guest did not establish that the victim had a greater right to possess the items than defendant. Likewise, the lack of evidence regarding from where the items were taken precluded a conclusion that the items were taken from the victim's immediate presence and control. Boatwright v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 178 (Tenn. Crim. App. Mar. 10, 2020).

Evidence was sufficient to convict defendant of burglary, theft, and assault because defendant had been informed he was no longer allowed inside the store or on the store's property; defendant, without the store's consent, entered the store and attempted to leave with a cup of ice and a bag of peanuts without paying for the items; and, when confronted by a store employee, defendant hit him in the face. State v. Smith, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 455 (Tenn. Crim. App. July 1, 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).

Evidence was sufficient to support defendant's conviction for aggravated assault resulting in death, where an expert, after being apprised of the victim's pre-existing medical conditions as well as what occurred with the paramedics during transport, testified that the blunt force trauma was the cause of the victim's death. State v. Armstrong, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 672 (Tenn. Crim. App. Oct. 13, 2020).

Evidence failed to show that the victim suffered any injury as a result of defendant's conduct and thus the evidence was insufficient to support a conviction of child abuse or child neglect; the victim did not testify to experiencing any pain and the State presented no evidence of any emotional or psychological harm to the victim or of defendant's failure to act or deprivation of care for the victim. The evidence that defendant touched the victim's penis underneath his clothes satisfied the elements of a simple assault by offensive touching. State v. Walkington, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 734 (Tenn. Crim. App. Nov. 19, 2020).

12. Jury Instructions.

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).

In a case in which defendant was indicted for five counts of rape by force or coercion, but was convicted of only two counts of the lesser offense of sexual battery, defendant's convictions were reversed as the trial court erred in not instructing the jury as to the lesser-included offense of assault by extremely provocative or offensive physical contact because, by acquitting defendant of three of the indicted offenses and convicting him of the lesser-included offense of sexual battery on two of the counts, the jury obviously found much of the victim's testimony incredible; and there was a reasonable probability that the jury, if instructed on the lesser-included offense, would have convicted him on that offense rather than sexual battery. State v. Johnson, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 944 (Tenn. Crim. App. Nov. 3, 2017).

Petitioner's conviction for aggravated sexual battery was reversed because trial counsel's failure to request an instruction on misdemeanor assault as a lesser-included offense of rape of a child was prejudicial to petitioner since given the proof, a properly instructed jury could have found petitioner guilty of misdemeanor assault; the victim's mother testified that she did not see petitioner doing anything to the victim, and the jury discredited the victim's claim of penetration. Townsend v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 105 (Tenn. Crim. App. Feb. 20, 2020), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 450 (Tenn. July 17, 2020).

13. Sentencing.

Where the trial court failed to instruct the jury that they had to determine the grade of misdemeanor assault, and no distinction was made by the jury in their verdict, defendants should have received convictions for Class B misdemeanor assault and been sentenced accordingly. State v. Buckmeir, 902 S.W.2d 418, 1995 Tenn. Crim. App. LEXIS 6 (Tenn. Crim. App. 1995).

Where the affidavit of complaint states that defendant struck a police officer on the head with his fist during a traffic stop, he necessarily committed aggravated assault under Tennessee law. When defendant pleaded guilty to a federal offense for possessing with intent to distribute five grams or more of cocaine base, the federal district court did not err by designating him as a career offender because his prior Tennessee conviction for aggravated assault was properly counted as a crime of violence under U.S. Sentencing Guidelines Manual § 4B1.2(a)(2). In re Smith, 2016 U.S. App. LEXIS 23525 (6th Cir. Oct. 27, 2016).

Because, under T.C.A. § 39-14-402(a)(3), the crime of burglary was not complete until the person committed or attempted to commit a felony, theft, or assault, under a double jeopardy analysis, the statutory violations of theft and burglary in defendant's case arose from the same act or transaction, and the trial court was required to merge the theft and assault convictions into the burglary conviction. State v. Smith, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 455 (Tenn. Crim. App. July 1, 2020).

14. Double Jeopardy Violation.

When the trial court amended defendant's conviction to simple assault, it did so in violation of defendant's protection against double jeopardy because, under T.C.A. § 39-13-101, simple assault was an offense that required an intentional or knowing mental state and specifically excluded the mens rea of recklessness, and the jury had already determined that defendant did not act intentionally or knowingly, collaterally estopping the trial court from entering the simple assault conviction; State v. Howell, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 15 (Tenn. Crim. App. Jan. 11, 2018).

15. Fresh Complaint Evidence.

In connection with defendant's conviction of aggravated assault, aggravated criminal trespass of a habitation, and two counts of assault, the victim's co-worker's testimony qualified as fresh complaint evidence, as he testified about the details of the incident, and defendant had vigorously attacked the victim's credibility prior to the co-worker's testimony; the victim's statements were timely and any error in admitting the testimony was harmless. State v. Roberts, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 258 (Tenn. Crim. App. Apr. 5, 2018).

16. Evidence Sufficient.

Evidence supported defendant's conviction for aggravated assault, based upon a theory of criminal responsibility, because the evidence established that defendant was involved in planning the robbery of the victim in the victim's home, provided a BB gun and supplied a Sharpie for the purpose of painting the BB gun so that it would look like a real gun knowing that the BB gun was going to be used to rob the victim, provided the wrench which was used to repeatedly hit the victim during the robbery, and took a share of the stolen marijuana. State v. Odom, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 419 (Tenn. Crim. App. July 12, 2019).

Evidence that defendant pushed the victim and broke his beer bottle and that codefendants then beat the victim while defendant stood nearby but did not attempt to stop codefendants or aid the victim was sufficient to support defendant's conviction for reckless aggravated assault. State v. Flowers, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 465 (Tenn. Crim. App. June 25, 2018).

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 conviction for assault was supported by evidence that defendant told her daughter to go get a gun while standing on her balcony overlooking the victim's courtyard, the victim suffered from a disability was her mobility was restricted, and the threat caused the victim to fear for her life. State v. Goldberg, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 180 (Tenn. Crim. App. Mar. 20, 2019), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 541 (Tenn. Dec. 5, 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).

17. “Law Enforcement Officer.”

Defendant was properly convicted of retaliation for past action because there was no dispute that defendant threatened to kill a deputy and his family—body camera footage was played for the jury during trial from both a deputy and a correction officer showing the struggle with defendant and his threats—the deputy was a “law enforcement officer” as statutorily defined, and defendant's threat was in retaliation for the deputy's attempt to restrain him, which was done in the deputy's official capacity as a corrections officer. State v. Calvera, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 266 (Tenn. Crim. App. Apr. 25, 2019).

NOTES TO DECISIONS

1. Nature of the Offense.

For Armed Career Criminal Act (ACCA) purposes, predicate felonies did not have to be in the indictment or proven beyond a reasonable doubt; however, defendant's conviction under former T.C.A. § 39-13-102, which included reckless aggravated assault was not a categorically violent felony under either the “use of physical force” or “otherwise” clause of the ACCA. United States v. McMurray, 653 F.3d 367, 2011 FED App. 202P, 2011 U.S. App. LEXIS 16025 (6th Cir. Aug. 4, 2011).

2. Relation to Federal Law.

Although defendant argued the district court erred in overruling his objection to the presentence report's conclusion that he was an armed career criminal, based on its classification of his juvenile adjudication under T.C.A. § 39-13-102 as a violent felon under the Armed Career Criminal Act, the district court correctly followed the categorical approach, and the documents that it properly examined were narrowly drawn, covering only conduct that involved the use of a firearm; therefore, the juvenile adjudication was properly designated to be a violent felon. United States v. White, 455 Fed. Appx. 647, — F.3d —, 2012 U.S. App. LEXIS 791, 2012 FED App. 44N, (6th Cir. Tenn. 2012).

Although aggravated assault conviction under Tennessee law did not categorically qualify as crime of violence under career offender guidelines, Shepard documents demonstrated that defendant necessarily pleaded guilty to Class C felony, which criminalized conduct within generic definition of aggravated assault and did not cover wider range of behavior, and thus, defendant's conviction qualified as crime of violence, and district court correctly applied career-offender enhancement to defendant. United States v. Cooper, 739 F.3d 873, 2014 FED App. 5P, 2014 U.S. App. LEXIS 231 (6th Cir. Jan. 7, 2014).

Because crime of aggravated assault under Tennessee law categorically presented serious potential risk of physical injury to another that was roughly similar, in kind as well as in degree posed to enumerated offenses, defendant's violation was categorically violent felony for purposes of Armed Career Criminal Act. United States v. Bell, 575 Fed. Appx. 598 (6th Cir. Tenn. 2014), ___ F.3d ___, 2014 U.S. App. LEXIS 15263, 2014 FED App. 599N (6th Cir.).

District court properly classified defendant as Armed Career Criminal because his prior two Tennessee convictions for aggravated assault constituted violent felonies under Armed Career Criminal Act's “force” clause.  Braden v. United States, 817 F.3d 926, 2016 FED App. 80P,  2016 U.S. App. LEXIS 6269 (6th Cir. Mar. 10, 2016).

3. Elements.

Reckless aggravated assault is not a lesser included offense of attempted second degree murder, because reckless aggravated assault requires proof of either: (1) Serious bodily injury; or (2) Bodily injury and display of a deadly weapon, neither of which is required to prove attempted second degree murder. State v. Rush, 50 S.W.3d 424, 2001 Tenn. LEXIS 587 (Tenn. 2001).

Available Shepards documents did not demonstrate that defendant pleaded guilty to a narrowed charge of aggravated assault under T.C.A. § 39-13-102, or that defendant admitted to facts that established that he necessarily pleaded guilty to a section of Tennessee's aggravated-assault statute that constituted a “violent felony” for purposes of the Armed Career Criminal Act. United States v. McMurray, 653 F.3d 367, 2011 FED App. 202P, 2011 U.S. App. LEXIS 16025 (6th Cir. Aug. 4, 2011).

Post-conviction court did not err in denying defendant's petition for post-conviction relief alleging ineffective assistance of trial counsel because, with respect to counsel's alleged deficiency for failing to investigate the medical report, the appellate court noted that no medical report of the minor victim was submitted at the evidentiary hearing; and defendant's convictions for aggravated assault and attempted aggravated assault against the minor victim did not depend upon the victim's injuries, but instead were based on the victim's reasonable fear of imminent bodily injury caused by defendant's strangulation of the victim's neck and his use of the weight as a deadly weapon against the victim. Blaylock v. State, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 567 (Tenn. Crim. App. Aug. 4, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 825 (Tenn. Oct. 24, 2016).

Rational trier of fact could have found that the aggravated assault was accomplished when defendant put a knife to the victim's throat at the roadside and that the attempted aggravated kidnapping involved a separate attempted removal or confinement when defendant dragged the victim down the driveway; thus, there was no due process violation as there was no basis to disturb the determination of the jury that any removal or confinement was beyond that necessary to commit the aggravated assault. State v. Tittle, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 925 (Tenn. Crim. App. Oct. 23, 2017).

Defendant was properly convicted of first-degree premeditated murder and aggravated assault because, inter alia, defendant's mental defect did not prevent him from comprehending what was being said during his interview and his inquiry as to when a lawyer could come was not an unequivocal request for counsel, defendant admitted that he shot one person, had a motive for the shooting, procured a gun, fled the scene, disposed of the gun, tried to remove gunshot residue, and attempted to hide from police, and the jury could reasonably infer that, when he sprayed 32 bullets in the two assault victims'  direction, they reasonably feared for their lives. State v. Simmon, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 204 (Tenn. Crim. App. Mar. 19, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 428 (Tenn. July 19, 2018).

4. —“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).

Phrase “intentionally or knowingly” in the aggravated assault statute, T.C.A. § 39-13-102(a)(1)(A), did not modify the phrase “causes serious bodily injury.” Therefore, the trial court did not err by refusing to allow defendant to argue that he did not intentionally or knowingly cause the victim serious bodily injury. State v. Jones, 341 S.W.3d 318, 2010 Tenn. Crim. App. LEXIS 943 (Tenn. Crim. App. Nov. 5, 2010), appeal denied, — S.W.3d —, 2011 Tenn. LEXIS 251 (Tenn. Mar. 9, 2011).

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).

5. —Causation.

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).

6. —Use of Deadly Weapon.

A motor vehicle can constitute a deadly weapon within the meaning of T.C.A. § 39-13-102. State v. Tate, 912 S.W.2d 785, 1995 Tenn. Crim. App. LEXIS 683 (Tenn. Crim. App. 1995).

Categorical approach that was used to determine the nature of prior felonies under the Armed Career Criminal Act, 18 U.S.C. § 924(e), applied to defendant's juvenile convictions; however, while his aggravated assault conviction and his involvement in several drive-by shootings constituted two offenses qualifying as violent felonies given the underlying facts and his admissions, neither his adjudication of delinquency based upon a plea to the charge of attempted robbery nor his adjudication of delinquency based upon a charge of aggravated assault could be used as a third qualifying conviction for sentencing enhancement purposes. United States v. Wells, 473 F.3d 640, 2007 FED App. 8P, 2007 U.S. App. LEXIS 360 (6th Cir. Tenn. 2007).

Victim's testimony alone was sufficient to establish that defendant hit her in the head with a revolver, and thus the evidence was sufficient to support defendant's conviction for aggravated assault involving the use or display of a deadly weapon. State v. Anderson, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 114 (Tenn. Crim. App. Feb. 17, 2017), aff'd, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 433 (Tenn. Crim. App. May 24, 2017).

7. —Instructions.

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).

It was error for the trial court to include “attempt” in its instruction on reckless aggravated assault and the error was so misleading and confusing that it was not harmless beyond a reasonable doubt. State v. Cromwell, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 498 (Tenn. Crim. App. July 3, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 729 (Tenn. Nov. 15, 2018).

8. —Serious Bodily Injury.

Evidence was insufficient to sustain defendant's conviction for aggravated assault because the State failed to establish that the victim suffered serious bodily injury; the victim's swollen and bruised eye did not satisfy the requirement of “protracted or obvious disfigurement” to establish serious bodily injury. State v. Rowlett, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 163 (Tenn. Crim. App. Feb. 26, 2013).

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).

9. Indictment.

An indictment sufficiently charged the offense of aggravated assault where it stated the time and place of the occurrence, that defendant intentionally and knowingly assaulted the victim, and that defendant used a dangerous weapon, namely, a motor vehicle. State v. Tate, 912 S.W.2d 785, 1995 Tenn. Crim. App. LEXIS 683 (Tenn. Crim. App. 1995).

An indictment for aggravated assault which does not specifically allege the theory by which the state intended to establish the second element of the offense — commission of an assault — is sufficient so long as the indictment both protects the accused's constitutional rights to notice and satisfies the requirements imposed by statute. State v. Hammonds, 30 S.W.3d 294, 2000 Tenn. LEXIS 547 (Tenn. 2000).

Because the inmate affirmatively requested a jury instruction on the offense of aggravated assault, even though he was in error in believing that it was a lesser-included offense of attempted first-degree murder, he effectively agreed to amend the indictment to include aggravated assault; therefore, the trial court had jurisdiction to convict the inmate of aggravated assault, his conviction was not void, and he was not entitled to habeas corpus relief. Demonbreun v. Bell, 226 S.W.3d 321, 2007 Tenn. LEXIS 452 (Tenn. May 8, 2007), rehearing denied, — S.W.3d —, 2007 Tenn. LEXIS 529 (Tenn. May 25, 2007).

Defendant's indictment for aggravated assault was sufficient to permit defendant to be retried on that charge because the indictment provided to defendant sufficient notice of his charge for aggravated assault and provided to the trial court an adequate basis to enter a proper judgment; the indictment's language stated that defendant did threaten to commit domestic assault or assault against the victim, and the indictment referenced the applicable statute. State v. Smith, 492 S.W.3d 224, 2016 Tenn. LEXIS 383 (Tenn. June 24, 2016).

It was error to dismiss an indictment because counts of sexual exploitation of a minor were not based on the same conduct and did arise from the same episode as the offenses for which defendant was tried, especially aggravated kidnapping, aggravated rape, and aggravated assault; there was no proof images shown to the victim were the images that led to the indictment for sexual exploitation, and there was no overlap in the evidence necessary to prove the other offenses and sexual exploitation. State v. Ellis, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 75 (Tenn. Crim. App. Jan. 31, 2018).

10. Separate Injuries.

Separate stab wounds inflicted by the defendant upon the same victim were part of the same offense, even though they did not occur immediately and simultaneously but were close in time and proximity, and it was error for the trial court to allow separated convictions for two counts of aggravated assault. State v. Pelayo, 881 S.W.2d 7, 1994 Tenn. Crim. App. LEXIS 287 (Tenn. Crim. App. 1994).

11. Lesser Included Offense.

One indicted for attempted first-degree murder may not be convicted of aggravated assault since aggravated assault is neither a lesser grade or class of attempted first-degree murder nor a lesser included offense of first-degree murder. (overruled to the extent it established a distinction between lesser grades or classes of offenses and lesser-included offenses) State v. Trusty, 919 S.W.2d 305, 1996 Tenn. LEXIS 187 (Tenn. 1996), overruled in part, State v. Dominy, 6 S.W.3d 472, 1999 Tenn. LEXIS 571 (Tenn. 1999), overruled in part, State v. Carter, — S.W.3d —, 2000 Tenn. Crim. App. LEXIS 340 (Tenn. Crim. App. Apr. 27, 2000), overruled in part, State v. Beeler, — S.W.3d —, 2000 Tenn. Crim. App. LEXIS 1004 (Tenn. Crim. App. Nov. 22, 2000).

Tenn. Const., art. I, § 10, prohibiting double jeopardy, barred defendant's conviction for possessing a weapon intended for use in the commission of an offense and for voluntary manslaughter, because the offenses were lesser included offenses of aggravated assault. State v. Denton, 938 S.W.2d 373, 1996 Tenn. LEXIS 783 (Tenn. 1996), overruled, State v. White, 362 S.W.3d 559, 2012 Tenn. LEXIS 153 (Tenn. Mar. 9, 2012), overruled, State v. Watkins, 362 S.W.3d 530, 2012 Tenn. LEXIS 154 (Tenn. Mar. 9, 2012), overruled, State v. Dawson, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 271 (Tenn. Crim. App. May 2, 2012), overruled, State v. Brawner, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 269 (Tenn. Crim. App. May 3, 2012), overruled, State v. Buford, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 342 (Tenn. Crim. App. May 24, 2012), overruled, State v. Readus, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 736 (Tenn. Crim. App. Sept. 17, 2012), overruled, State v. Alston, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 460 (Tenn. Crim. App. May 30, 2013), overruled, State v. Hollins, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 1031 (Tenn. Crim. App. Nov. 25, 2013), overruled, State v. Ralph, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 1125 (Tenn. Crim. App. Dec. 23, 2013), overruled, Garrett v. State, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 335 (Tenn. Crim. App. Apr. 10, 2014), overruled, State v. Davis, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 377 (Tenn. Crim. App. Apr. 21, 2014), overruled in part, State v. Isabell, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 743 (Tenn. Crim. App. July 28, 2014), overruled, State v. Hernandez, — S.W.3d —, 2014 Tenn. Crim. App. LEXIS 736 (Tenn. Crim. App. July 29, 2014), overruled, State v. Martin, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 97 (Tenn. Crim. App. Feb. 10, 2015), overruled, State v. Feaster, 466 S.W.3d 80, 2015 Tenn. LEXIS 514 (Tenn. June 25, 2015), overruled in part, State v. Itzol-Deleon, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 218 (Tenn. Crim. App. Mar. 28, 2016), overruled, State v. Freitas, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 762 (Tenn. Crim. App. Oct. 7, 2016), overruled, State v. Jernigan, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 197 (Tenn. Crim. App. Mar. 15, 2017), overruled in part, State v. Collins, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 384 (Tenn. Crim. App. May 16, 2017), overruled, Johnson v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 848 (Tenn. Crim. App. Sept. 15, 2017), overruled, State v. Steelman, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 936 (Tenn. Crim. App. Oct. 30, 2017).

Where evidence used to prove the offenses of attempted second degree murder and aggravated assault was the same, defendant's convictions for both offenses were the “same” for purposes of Tenn. Const., art. I, § 10, prohibiting double jeopardy. State v. Hall, 947 S.W.2d 181, 1997 Tenn. Crim. App. LEXIS 63 (Tenn. Crim. App. 1997).

Aggravated assault by a parent or custodian is not a lesser included offense of first-degree murder by aggravated child abuse. State v. Roberson, 988 S.W.2d 690, 1998 Tenn. Crim. App. LEXIS 107 (Tenn. Crim. App. 1998).

The offense of intentionally causing “extremely offensive or provocative” physical contact should not have been submitted to the jury as a lesser included offense of aggravated assault (bodily injury). State v. Smiley, 38 S.W.3d 521, 2001 Tenn. LEXIS 74 (Tenn. 2001).

Defendant could not be convicted of reckless aggravated assault on the theory it was a lesser included offense of attempted second degree murder; application of the three-part Burns analysis dictated reckless aggravated assault is not a lesser included offense of attempted second degree murder; reckless aggravated assault requires proof of elements not required to prove attempted second degree murder and reckless aggravated assault does not necessarily involve a less serious harm or risk of harm to a person—indeed, it always involves bodily injury—whereas an attempted second degree murder offense sometimes involves no injury at all to the victim. State v. Rush, 50 S.W.3d 424, 2001 Tenn. LEXIS 587 (Tenn. 2001).

Although defendants' convictions on two counts of aggravated robbery violated double jeopardy principles, they were each guilty of two crimes because the evidence was sufficient to support a conviction against each defendant for aggravated assault as a lesser-included offense of aggravated robbery, as each of the two victims was threatened with a gun during the course of the robbery. State v. Franklin, 130 S.W.3d 789, 2003 Tenn. Crim. App. LEXIS 568 (Tenn. Crim. App. 2003), appeal denied, State v. Sandridge, — S.W.3d —, 2003 Tenn. LEXIS 1302 (Tenn. Dec. 22, 2003).

Because reckless endangerment with a deadly weapon was not a lesser-included offense of aggravated assault committed by intentionally or knowingly causing another to reasonably fear imminent bodily injury by use or display of a deadly weapon, the trial court committed plain error by charging reckless endangerment with a deadly weapon as a lesser included offense of reckless endangerment. Defendant was entitled to a new trial on aggravated assault. State v. Cross, 362 S.W.3d 512, 2012 Tenn. LEXIS 155 (Tenn. Mar. 9, 2012).

Trial court's failure to charge the next lesser-included offense of misdemeanor reckless endangerment was harmless error beyond a reasonable doubt because the trial court properly charged the jury to first consider the greater offense of intentional or knowing aggravated assault, T.C.A. §§ 39-13-102(d), (a)(1)(A), and 39-13-101(a)(1), and also instructed the jury that, if it determined defendant was not guilty of that offense, then it must consider the lesser-included offense of reckless aggravated assault; the jury convicted defendant of intentional or knowing aggravated assault. State v. Shelbourne, — S.W.3d —, 2012 Tenn. Crim. App. LEXIS 1076 (Tenn. Crim. App. Dec. 26, 2012).

Defendant's aggravated assault conviction was modified to reckless endangerment because (1) the jury found serious injury but did not find an adverse effect on the victim's welfare, and (2) reckless endangerment was the next properly-charged lesser-included offense the evidence supported. State v. Hodges, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 288 (Tenn. Crim. App. Apr. 19, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 507 (Tenn. Aug. 16, 2017).

12. Double Jeopardy.

Convictions for the offenses of aggravated assault and reckless endangerment did not violate double jeopardy since each offense required proof of an additional fact that the other did not. State v. Brooks, 909 S.W.2d 854, 1995 Tenn. Crim. App. LEXIS 701 (Tenn. Crim. App. 1995).

Because aggravated assault and attempted voluntary manslaughter each required proof of a fact not required in proving the other, the offenses were not multiplicitous and defendant's dual convictions did not violate the prohibition against double jeopardy. 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).

Although defendant's convictions for attempted voluntary manslaughter and aggravated assault arose out of the same incident, each of those offenses contained numerous elements that the other did not, and there was no evidence that the General Assembly intended to prohibit multiple punishments in circumstances such as these, and thus double jeopardy did not preclude the dual convictions. State v. Feaster, 466 S.W.3d 80, 2015 Tenn. LEXIS 514 (Tenn. June 25, 2015).

Unlawful killing of a person is a crime distinctly different from that of an assault upon a person, and although serious bodily injury is an element of assault it is not an element of murder and assault resulting in serious bodily injury and second degree murder are completely separate offenses; thus, reckless aggravated assault contains an element (serious bodily injury) not contained in the reckless homicide statute and that reckless homicide contains an element (killing) not required for a conviction for reckless aggravated assault, and defendant's convictions for both could stand under the double jeopardy analysis. State v. Beaty, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 491 (Tenn. Crim. App. July 8, 2016).

It had previously been held that the 2009 amendment of the statute abrogated part (b) of the State v. Burns double jeopardy test; thus, reckless aggravated assault is not a lesser included offense of reckless homicide under the statute and dual convictions are proper, and defendant was not entitled to relief. State v. Beaty, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 491 (Tenn. Crim. App. July 8, 2016).

Crimes occurred on the same day and in the same location, and thus the reckless homicide and reckless aggravated assault clearly arose from the same conduct; however, reckless aggravated assault contains an element (serious bodily injury) not contained in the reckless homicide statute and that reckless homicide contains an element (killing) not required for a conviction for reckless aggravated assault, and thus defendant's convictions for both could stand under the Blockburger  double jeopardy analysis. State v. Beaty, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 842 (Tenn. Crim. App. Nov. 8, 2016).

Although the offenses arose from the same act or transaction of defendant's act of putting a knife to the victim's throat and then dragging her 20-30 feet down a dark driveway toward a scrap yard, aggravated assault was not a lesser included offense of attempted aggravated kidnapping and the offenses were not the same for the purposes of double jeopardy as each crime contained an element that the other did not because attempted aggravated kidnapping required a specific intent to commit the crime of aggravated kidnapping, including a removal or confinement of the victim; and aggravated assault contained an element of fear and required the State to show that defendant caused the victim to reasonably fear imminent bodily injury. State v. Tittle, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 925 (Tenn. Crim. App. Oct. 23, 2017).

Defendant argued that the trial court erred by not merging the sentences for his voluntary manslaughter and aggravated assault convictions, but the issue was waived as defense counsel did not raise any double jeopardy issue at trial and the issue was not raised in a motion for new trial. Furthermore, relief via plain error was unwarranted as these offenses were not multiplicitous because they each required proof of a fact not required in proving the other, and thus defendant could not establish that a clear rule of law has been breached. State v. Wright, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 45 (Tenn. Crim. App. Jan. 29, 2020).

13. No Self-defense.

Defendant violated this section 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 T.C.A. § 39-11-611, 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 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).

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), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 116 (Tenn. Feb. 19, 2020).

14. Evidence.

Successor judge, who heard only defendant's motion for a new trial after his appointment under Tenn. R. Crim. P. 25(b)(1), could not properly act as a thirteenth juror in this case because credibility was an overriding issue. The validity of defendant's convictions for aggravated robbery, aggravated assault, and aggravated burglary depended upon the credibility determinations by the jury and ultimately the judge, acting as a thirteenth juror; other than the victims'  own statements, no one provided any independent knowledge of what was taken from the victims, that it was taken at gunpoint, or that defendant entered the residence forcibly. State v. Ellis, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 262 (Tenn. Crim. App. Mar. 22, 2013), rev'd, 453 S.W.3d 889, 2015 Tenn. LEXIS 5 (Tenn. Jan. 13, 2015).

Even though the trial court erred by admitting into evidence numerous graphic photographs of the victim's face during surgery, as the extent of the victim's injuries was clearly stated and not contested, the error was harmless because it was not more probable than not that the photos affected the jury's decision, given the conflicts in the testimony and the fact that the jury found defendant guilty of a lesser-included offense on one charge and acquitted him of the other. State v. Thompson, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 316 (Tenn. Crim. App. Apr. 27, 2017).

Evidence of defendant's prior bad acts towards the victim were relevant to show motive and intent; the trial court found the order of protection necessary to establish an element of aggravated assault by violation of a court order under T.C.A. § 39-13-102 and the allegations of threats and abuse in the petition were relevant to establish defendant's criminal intent and to rebut his theory of self-defense, plus witnesses testified regarding the victim's fear of defendant, and he was not entitled to relief. State v. Long, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 368 (Tenn. Crim. App. May 11, 2017).

In connection with defendant's conviction of aggravated assault, aggravated criminal trespass of a habitation, and two counts of assault, the victim's co-worker's testimony qualified as fresh complaint evidence, as he testified about the details of the incident, and defendant had vigorously attacked the victim's credibility prior to the co-worker's testimony; the victim's statements were timely and any error in admitting the testimony was harmless. State v. Roberts, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 258 (Tenn. Crim. App. Apr. 5, 2018).

15. —Sufficient.

The evidence was sufficient to support defendant's conviction of aggravated kidnapping and aggravated assault. State v. Boling, 840 S.W.2d 944, 1992 Tenn. Crim. App. LEXIS 384 (Tenn. Crim. App. 1992), appeal denied, — S.W.2d —, 1992 Tenn. LEXIS 530 (Tenn. Aug. 31, 1992).

Evidence was sufficient to support conviction. State v. Anderson, 835 S.W.2d 600, 1992 Tenn. Crim. App. LEXIS 22 (Tenn. Crim. App. 1992), appeal denied, 2002 Tenn. LEXIS 146 (Tenn. Mar. 18, 2002).

There was ample evidence from which a rational trier of fact would conclude that driver 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, in what witnesses described as a careless manner; had a blood alcohol level which supported a finding that his blood alcohol level would have been between .04 percent and .07 percent at the time of the collision; and falsely told a police officer at the scene that a friend had been driving. 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).

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 held sufficient to support conviction of aggravated assault involving an automobile accident. State v. Gillon, 15 S.W.3d 492, 1997 Tenn. Crim. App. LEXIS 1024 (Tenn. Crim. App. 1997).

Evidence was insufficient to sustain defendant's reckless aggravated assault convictions where there was absolutely no proof of bodily injury to either of the victims; in addition, reckless aggravated assault could not be a lesser-included offense of aggravated assault based on knowingly or recklessly causing another to reasonably fear imminent bodily injury. 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 support defendant's aggravated assault conviction where the evidence showed that defendant was served with an order of protection and notice of hearing, and several witnesses testified that they saw defendant hit the victim so hard that the victim's head smashed into a courtroom wall. State v. Armstrong, 256 S.W.3d 243, 2008 Tenn. Crim. App. LEXIS 77 (Tenn. Crim. App. Jan. 24, 2008).

Evidence was sufficient to support defendant's convictions of two counts of aggravated assault because the proof at trial established that defendant held the two victims at gunpoint and threatened to shoot them. One victim testified that he was terrified, while the second testified that he was afraid and thought that one or both of them were going to be killed. State v. Parsons, 437 S.W.3d 457, 2011 Tenn. Crim. App. LEXIS 922 (Tenn. Crim. App. Dec. 15, 2011), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 383 (Tenn. May 23, 2012).

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).

Facts were sufficient to sustain defendant's convictions for facilitation of attempted first degree premeditated murder, unlawful possession of a firearm, and aggravated assault because the victim identified defendant soon after the shooting and again in court, and the jury heard the evidence and was able to gauge the victim's credibility. State v. Johnson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 45 (Tenn. Crim. App. Jan. 25, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 457 (Tenn. June 23, 2016).

Evidence that defendant turned back towards the victim, pulled out a pocketknife and threatened the victim, and waived the knife at the victim causing injury was sufficient to support defendant's conviction for reckless aggravated assault. 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 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).

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 that the victim and defendants were all members of a street gang, that one defendant possessed a handgun, that defendants beat the victim until he was unconscious, and that the victim was in a medically-induced coma for nine weeks and needed physically therapy to walk and talk again was sufficient to support defendants'  convictions for attempted second degree murder, aggravated assault, and possession of a firearm during the commission of a dangerous felony. State v. Bonds, 502 S.W.3d 118, 2016 Tenn. Crim. App. LEXIS 266 (Tenn. Crim. App. Apr. 7, 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 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 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 sustain defendant's convictions for aggravated assault and aggravated kidnapping because the jury credited the victim's testimony, and the testimony of other witnesses and the physical evidence corroborated her account; the victim reported defendant's abuse to an officer, who noted injuries to her face and redness to her neck, and the injuries were observable in the photographs admitted at trial. State v. Baxter, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 364 (Tenn. Crim. App. May 16, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 666 (Tenn. Sept. 23, 2016).

Defendant's act of waiving his gun around an announcing that “this is a robbery,” demanding the women undress, and hitting a victim until she lost consciousness, and testimony that such action caused the victims to fear for their lives supported defendant's aggravated assault convictions. State v. Howard, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 395 (Tenn. Crim. App. May 26, 2016).

Defendant was properly convicted of attempted second-degree murder, aggravated assault, employing a firearm during commission of a dangerous felony, and possessing a firearm as a convicted felon because, without a prior disagreement or provocation, defendant drew a gun while the victim's back was turned, pointed it at the victim, and shot him when he attempted to escape, the shooting was a substantial step toward killing the victim, firing the gun was an intentional act, the victim believed that defendant intended to rob him, defendant did not attempt to render aid to the victim, left the scene, and hid in his mother's attic, and the parties stipulated that defendant had two prior felony convictions involving violence and/or drugs. State v. Jones, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 417 (Tenn. Crim. App. June 6, 2016).

In an aggravated assault case involving two defendants, the evidence was sufficient to support the second defendant's conviction. The jury could reasonably conclude that the second defendant acted with the intent to promote or assist in the commission of aggravated assault. State v. Henderson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 432 (Tenn. Crim. App. June 10, 2016).

In an aggravated assault case involving two defendants, there was sufficient evidence for the jury to conclude that first defendant was holding a gun and that the gun was clearly visible to the victim. The evidence was sufficient for the jury to conclude that the first defendant intentionally or knowingly caused the victim to reasonably fear imminent bodily injury and that he did so by use or display of a deadly weapon. State v. Henderson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 432 (Tenn. Crim. App. June 10, 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), appeal dismissed, — S.W.3d —, 2018 Tenn. LEXIS 330 (Tenn. June 6, 2018).

Evidence defendant approached the victims with a gun visible and ordered them to show their pockets allowed a jury to find that his assault of the victims involved the display of a deadly weapon and supported convictions for aggravated assault. State v. Brown, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 465 (Tenn. Crim. App. June 29, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 758 (Tenn. Oct. 20, 2016).

Evidence was sufficient to support defendant's conviction for aggravated assault where the driver testified that defendant pulled a black and silver gun from his pants and pointed it at her, and she was terrified. 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 supported defendant's convictions for reckless homicide and reckless aggravated assault; although the victim had bruising prior to her death, testimony was clear the victim died from blunt force injuries to her head that would have occurred on a certain date, and the victim would not have acted normally after sustaining the injuries. State v. Beaty, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 491 (Tenn. Crim. App. July 8, 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).

Evidence defendant hit the adult victim in the head with a gun, causing a bleeding wound, and threatened to harm one of the children, while brandishing a knife and poking him with it, was sufficient to support a conviction for aggravated assault. State v. Curry, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 602 (Tenn. Crim. App. Aug. 15, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 40 (Tenn. Jan. 19, 2017).

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).

Child victim's testimony that she thought defendant was going to shoot her mother and her, and testimony defendant pointed the gun at his girlfriend's car while she and the child were inside it and threatened to kill them supported convictions for aggravated assault and attempted aggravated assault, and the girlfriend's admission that a year later she could not remember whether defendant actually threatened to kill her did not create reasonable doubt, nor did her ongoing relationship with him. State v. Abujaber, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 631 (Tenn. Crim. App. Aug. 25, 2016), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 856 (Tenn. Nov. 16, 2016).

Defendant's conduct during the incident showed he intentionally or knowingly caused the victim bodily injury by striking her head repeatedly with a gun and shooting her and was sufficient to support a conviction for aggravated assault. State v. Vinson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 647 (Tenn. Crim. App. Aug. 31, 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).

Victim's testimony that defendant tried repeatedly to hit her with a stick while she was seated in her car and that she was afraid, and an officer's testimony that defendant stated he had attempted to hit the victim with a stick was sufficient to support defendant's conviction for aggravated assault. State v. Shettles, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 719 (Tenn. Crim. App. Sept. 23, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 139 (Tenn. Feb. 22, 2017).

Evidence was sufficient to support defendant's conviction of aggravated assault where it showed that the victim had to have part of his intestines, his gallbladder, and half of his liver removed, he was still unable to run or ride a bicycle as a result of his injuries, and defendant was armed with a gun. State v. Jones, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 732 (Tenn. Crim. App. Sept. 26, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 45 (Tenn. Jan. 20, 2017).

Evidence was sufficient to sustain defendant's convictions for aggravated assault and reckless endangerment. Defendant's attack left the victim bleeding profusely from the side of her neck that required medical attention, including stitches and pain medication, and defendant further endangered the victim by throwing her cellular phone out of her reach to prevent her from calling for help. 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).

Although the victim was unable to identify defendant as one of the perpetrators at the preliminary hearing, there was sufficient evidence of his identity, as the jury chose to credit the victim's trial testimony that defendant was one of the men who fled in a vehicle from her rental home, knocking her down in the process, and there was evidence that the vehicle that fled the scene was registered to defendant's mother and defendant had access to the vehicle and had driven it on another occasion. State v. Smith, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 794 (Tenn. Crim. App. Oct. 21, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 155 (Tenn. Feb. 28, 2017).

Evidence was sufficient to support defendant's convictions for reckless homicide and reckless aggravated assault; defendant was left alone with the infant victim, and when the mother returned, the victim was unresponsive, plus while at the hospital, defendant told the mother to say the victim had been with her the whole time, and the victim's injuries were caused by blunt force injuries to her head. State v. Beaty, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 842 (Tenn. Crim. App. Nov. 8, 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 support defendant's conviction of aggravated assault where the victim testified that he believed defendant was trying to kill him after he was robbed and after being shot point blank in the face the victim began running while defendant continued to shoot at him. State v. Vaughn, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 906 (Tenn. Crim. App. Dec. 6, 2016).

Evidence that two defendants fired their guns into a crowd of people, causing one of the crowd to fear for her life, was sufficient to sustain the aggravated assault convictions as to two defendants and to sustain a conviction based upon criminal responsibility as to the other defendant. 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 sustain defendant's conviction for reckless aggravated assault because the victim offered extensive testimony at trial regarding being cut by defendant, and the jury accredited that testimony; a doctor testified that the victim's injuries were extensive and required surgery, and without treatment, the victim would have likely died. State v. Pittman, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 394 (Tenn. Crim. App. May 16, 2017).

Evidence was sufficient to support petitioner's convictions of vehicular assault and reckless aggravated assault because it showed that petitioner did not apply his brakes until just before the collision, petitioner hit the truck with enough force to cause it to go airborne and land directly in front of the victim's van which was traveling in the oncoming lane of traffic, the victim suffered serious bodily injuries, and petitioner's blood was found to contain cocaine. Stewart v. State, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 519 (Tenn. Crim. App. June 20, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 666 (Tenn. Oct. 4, 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 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 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 including the victim's testimony that defendant pulled the victim out of her car and strangled her while she was on the ground and defendant's admission to another that he choked the victim was sufficient to support defendant's conviction for aggravated assault by strangulation. State v. Brooks, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 826 (Tenn. Crim. App. Sept. 8, 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).

Evidence was sufficient to support defendant's conviction of aggravated assault because it showed that defendant grabbed the victim around the neck and hit her in the face several times with a closed fist, he later displayed a box cutter and hit the victim with its handle, defendant fled the scene, and the victim suffered bruising to her face, neck, and arms along with swelling to both sides of her face. State v. Williams, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 843 (Tenn. Crim. App. Sept. 13, 2017), aff'd, 558 S.W.3d 633, 2018 Tenn. LEXIS 637 (Tenn. Oct. 12, 2018).

Evidence was sufficient to support defendant's conviction for aggravated assault because based on the testimony of the victim alone–that defendant had a gun in defendant's hand, held the gun out the window of defendant's vehicle, and fired a shot at the victim and that, as a result, the victim feared for the victim's life–a reasonable juror could have found beyond a reasonable doubt that defendant intentionally or knowingly caused the victim to reasonably fear imminent bodily injury by the use or display of a deadly weapon. State v. Tiller, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 906 (Tenn. Crim. App. Oct. 9, 2017).

Evidence was sufficient to convict defendant of three counts of especially aggravated kidnapping and of three counts of aggravated assault as defendant substantially interfered with the victims'  liberty by the use or threatened use of a deadly weapon and the victims had a reasonable fear of imminent bodily injury by the use of a deadly weapon because defendant terrorized the three victims for hours by confining them to the bedroom and hitting two of the victims with his fists; the victims were not allowed to leave the bedroom; defendant was armed with a knife and a beer bottle, which he used to threaten the victims; and all three victims testified that they feared for their safety. State v. Frazier, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 951 (Tenn. Ct. App. Nov. 8, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 172 (Tenn. Mar. 14, 2018).

Evidence was sufficient to support defendant's conviction of aggravated assault; the jury was free to find the victim's testimony credible, plus the State introduced physical evidence corroborating at least parts of the victim's testimony, and her multiple injuries were well-documented and a box cutter was found at the scene. State v. Williams, 558 S.W.3d 633, 2018 Tenn. LEXIS 637 (Tenn. Oct. 12, 2018).

Testimony from the victim and another witness that defendant produced a knife during a confrontation and evidence that a knife was recovered from defendant's vehicle was sufficient for a rational trier of fact to conclude that defendant was armed with a deadly weapon, as required for an aggravated assault conviction. State v. Stanley, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 207 (Tenn. Crim. App. Mar. 20, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 418 (Tenn. July 18, 2018).

Evidence was sufficient to support defendant's conviction for reckless aggravated assault because the State of Tennessee presented evidence that defendant acted recklessly in discharging a deadly weapon into a house, causing bodily injury to the victim of the gunshot. Furthermore, defendant's admissible statements to the police established defendant's identity as the shooter. State v. Butts, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 243 (Tenn. Crim. App. Mar. 29, 2018).

Evidence was sufficient to convict defendant of aggravated assault because the 12-year-old victim testified that defendant pointed a gun at him while standing near the television stand in the living room before any gunshots were fired. State v. Grant, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 294 (Tenn. Crim. App. Jan. 4, 2018).

Evidence that defendant entered the victim's residence through a window, shot the victim, and later gave a written statement admitting to breaking and entering into the residence and shooting the victim supported defendant's convictions for attempted first degree premeditated murder, aggravated assault, aggravated burglary, and employing a firearm during the commission of a dangerous felony. State v. Stitts, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 340 (Tenn. Crim. App. Apr. 27, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 474 (Tenn. Aug. 8, 2018).

Evidence was sufficient to support defendant's convictions of aggravated assault because while acting in concert with at least 10 other individuals, he intentionally or knowingly caused serious bodily injury to the victim by beating him severely with brass knuckles until the victim suffered facial fractures and temporarily lost consciousness, plus defendant handed a gun to his brother and told him to shoot the victim. State v. Gomez, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 359 (Tenn. Crim. App. May 9, 2018).

Evidence was sufficient to support defendant's convictions for attempted first-degree murder and aggravated assault, because despite the alibi testimony of defendant's mother, the jury chose not to accredit her testimony and resolve all conflicts in favor of the State and the victim's testimony identifying defendant as one of the shooters without hesitation. State v. Lee, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 390 (Tenn. Crim. App. May 18, 2018).

Evidence that defendant and codefendant ambushed the victims as they entered their home, defendant demanded money from a victim while codefendant subdue the other victims, defendant shot one victim when he attempted to fight back and later shot the other victims, and the bullets recovered from the victims were fired from a weapon that defendant sold to someone and had fired a month before the murders was sufficient to support defendant's convictions for murder, attempted murder, robbery and aggravated assault. State v. Wade, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 523 (Tenn. Crim. App. July 13, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 689 (Tenn. Nov. 15, 2018).

Evidence was sufficient to support defendant's conviction of aggravated assault by strangulation because the victim testified that defendant put his hand around the front of her neck and choked her, she told the officer at the scene that she had trouble breathing and had lost consciousness, she told the 911 operator that defendant had “choked her out, ” photographic evidence showed red marks around the victim's neck, and the officer testified that the victim had a handprint around her neck that was consistent with someone who had been strangled. State v. Maney, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 583 (Tenn. Crim. App. Aug. 3, 2018).

Evidence that the victim ordered defendant out of his residence and locked the front door and defendant returned and busted the door in, began hitting the victim in the face and eye with a wooden stick and knocked the victim unconscious, requiring a hospital visit and six months in an “old folks home” was sufficient to support defendant's conviction for aggravated assault. State v. Sanders, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 585 (Tenn. Crim. App. Aug. 6, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 675 (Tenn. Nov. 14, 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 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 assault because defendant intentionally caused serious bodily injury to the victim by hitting him with a baseball bat which resulted in a broken ulna and dislocated fingers; defendant admitted as such; and the jury clearly did not buy into defendant's theory of self-defense. State v. London, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 643 (Tenn. Crim. App. Aug. 21, 2018).

Evidence that defendant grabbed merchandise from a store and left without paying for it, that a loss prevention employee approached defendant and brought him back to his office, that defendant was knocking over tables and yelling profanity and threatened to kill the employee, and that while in the employee's office, defendant used a telephone cord to strangle the employee until he lost consciousness was sufficient to support defendant's convictions for attempted second-degree murder, aggravated assault, and theft. State v. Talley, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 658 (Tenn. Crim. App. Aug. 24, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 679 (Tenn. Nov. 16, 2018).

Evidence was sufficient to support defendant's convictions for attempted first degree murder and aggravated assault because it showed that he used a gun to shoot multiple shots towards the vehicle as the victim drove away and several of the shots hit the vehicle. State v. Battle, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 673 (Tenn. Crim. App. Aug. 31, 2018), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 99 (Tenn. Jan. 18, 2019).

Evidence was sufficient to support defendant's convictions for aggravated assault for two victims because one victim was shot in the leg and another victim testified she ducked and hid to avoid being shot. State v. Battle, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 673 (Tenn. Crim. App. Aug. 31, 2018), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 99 (Tenn. Jan. 18, 2019).

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 support defendant's conviction of aggravated assault because the victim testified that defendant squirted lighter fluid on him and attempted to ignite it, and defendant admitted to a detective and a deputy chief that she had been the aggressor. State v. Dunavant, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 794 (Tenn. Crim. App. Oct. 24, 2018).

Conviction for aggravated assault by strangulation was supported by evidence defendant choked the victim by placing his thumbs on the front of her throat and applying pressure so she was not able to breathe, grabbed the victim in a headlock and caused her to lose consciousness, continued to choke the victim after she regained consciousness by pushing on her neck until she was able to kick him in the ribs, and the redness, bruising, and abrasions on the victim's neck and shoulders seen in photos. State v. Brown, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 803 (Tenn. Crim. App. Oct. 30, 2018).

Evidence was sufficient to support defendant's aggravated assault conviction; one employee testified that she was standing next to a co-worker while defendant pointed his gun at him, and had he not complied with defendant's demands for money, the employee would have intervened and complied, and although she admitted the gun was not directly pointed at her, she said she feared for her life and was scared to move. State v. Jenkins, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 856 (Tenn. Crim. App. Nov. 20, 2018).

Doctor's testimony that the victim's subdural hematoma, or brain bleed, was life-threatening and that, if it grew, it had the potential to become even more dangerous, thus, requiring the victim to be place in the intensive care unit, was sufficient to establish serious bodily injury to sustain defendant's conviction of aggravated assault. State v. Ingram, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 907 (Tenn. Crim. App. Dec. 14, 2018), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 183 (Tenn. Apr. 12, 2019).

Evidence was sufficient to support defendant's conviction of aggravated assault because it showed that the victim, defendant's ex-wife, had obtained an order of protection against defendant, the order was in effect on the date of the incident, defendant went to the home of the victim's friend, he approached her car, and screamed and threatened to kill her while banging on the window. The victim stated that she believed defendant would kill or harm her. State v. Frazier, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 77 (Tenn. Crim. App. Feb. 5, 2019).

Evidence was sufficient to support defendant's convictions for aggravated assault because, although neither shooting victim directly testified the victim was in fear during the shooting, the jury was entitled to infer the victims'  fear of imminent bodily injury as the victims were forced to hide behind vehicles as defendant began shooting at them, one victim testified to ducking and dodging bullets while attempting to shoot back at defendant, and, after the shooting ended, the victims called 911 and followed defendant until police arrived. State v. Juarez, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 175 (Tenn. Crim. App. Mar. 18, 2019).

Sufficient evidence supported defendant's convictions for attempted first degree murder, two counts of aggravated assault, reckless endangerment, and employment of a firearm during the commission of or attempt to commit a dangerous felony because the evidence showed defendant fired numerous shots at victims in the parking lot of a crowded shopping mall. State v. Chambers, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 241 (Tenn. Crim. App. Apr. 15, 2019), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 330 (Tenn. July 19, 2019).

Evidence was sufficient to support defendant's conviction of aggravated assault because it showed that during the argument defendant produced a gun and said he knew “the code” and would “blow” the boyfriend's “chest out.” State v. Myers, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 285 (Tenn. Crim. App. Apr. 30, 2019), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 314 (Tenn. July 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, 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).

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), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 484 (Tenn. Sept. 20, 2019).

Evidence was sufficient to convict the first defendant of aggravated assault because the victim testified that the first defendant kicked him in the eye; and the victim and a witness testified that the first defendant held a gun on the victim. State v. Carter, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 496 (Tenn. Crim. App. Aug. 16, 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 supported defendant's conviction for aggravated assault, based upon a theory of criminal responsibility, because the evidence established that defendant was involved in planning the robbery of the victim in the victim's home, provided a BB gun and supplied a Sharpie for the purpose of painting the BB gun so that it would look like a real gun knowing that the BB gun was going to be used to rob the victim, provided the wrench which was used to repeatedly hit the victim during the robbery, and took a share of the stolen marijuana. State v. Odom, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 419 (Tenn. Crim. App. July 12, 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).

There was sufficient evidence to support defendant's convictions for aggravated robbery, attempted aggravated robbery, and aggravated assault including that defendant texted an accomplice about a robbery, defendant dropped off the accomplices at the pawn shop where they robbed the store and customers, the accomplices ran to an abandoned house and changed clothes before defendant picked them up, and the offenders were all tracked using a GPS placed in one of the jewelry cases taken during the robbery. State v. Wise, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 581 (Tenn. Crim. App. Sept. 18, 2019).

Evidence that the victim suffered a broken nose and fractured orbital bone and experienced pain at a 10 out of 10 level for two weeks was sufficient to support a finding that the victim suffered serious bodily injury as required for defendant's aggravated assault conviction. State v. Baker, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 627 (Tenn. Crim. App. Oct. 4, 2019), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 97 (Tenn. Feb. 20, 2020).

Defendant failed to establish that “display” as used in the statute was ambiguous, the rule of lenity did not apply, and the evidence was sufficient to support his aggravated assault convictions, as his obtaining control of the gun and placing his hand on the grip and trigger during the struggle was sufficient to show he displayed the weapon. State v. Sweeney, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 644 (Tenn. Crim. App. Oct. 11, 2019), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 116 (Tenn. Feb. 19, 2020).

Evidence that defendant stood one to two feet away from the victims and pointed a gun at them and told them to get on the ground, and that one victim testified he was scared and though he could die was sufficient to support defendant's conviction for aggravated assault against the scared victim. State v. Wilkins, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 55 (Tenn. Crim. App. Jan. 31, 2020).

Evidence was sufficient to support defendant's conviction of aggravated assault because it showed that he violently used a mallet to strike the victims'  bedroom door while threatening their lives and the victims testified his conduct put them in fear and caused them to call 911. State v. Spencer, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 66 (Tenn. Crim. App. Feb. 5, 2020).

Evidence was sufficient to support defendant's convictions for aggravated assault because both victims expressed their fear for their lives based on defendant's firing his gun into the vehicle in which both were passengers. State v. Stinnett, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 89 (Tenn. Crim. App. Feb. 12, 2020), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 389 (Tenn. June 5, 2020).

Where several of the State's witnesses saw defendant threaten the victim with a gun and defendant's use of a gun was corroborated by the presence of gunshot residue on his hands, the evidence was sufficient to sustain defendant's aggravated assault conviction. State v. Hurt, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 213 (Tenn. Crim. App. Apr. 1, 2020), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 385 (Tenn. Aug. 11, 2020).

Defendant's contention that the evidence was insufficient to support his convictions for attempted second degree murder and other offenses because witnesses testified that the victim was the primary aggressor failed because a reasonable juror could have found that defendant's self-defense claim was not well-founded given the victim's testimony that he had not drawn his gun when defendant opened fire and that defendant turned and walked toward the victim when the victim came outside, engaging further rather than continuing to walk away. State v. Cole, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 214 (Tenn. Crim. App. Apr. 1, 2020).

Evidence was sufficient to support defendant's convictions of attempted second degree murder, aggravated assault, and employing a firearm during the commission of a dangerous felony because the victim's identification of defendant in a photographic lineup and at trial was sufficient to establish defendant's identity as the perpetrator, and the jury could consider defendant's accomplice's testimony because it was sufficiently corroborated by the victim's testimony. State v. Hill, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 310 (Tenn. Crim. App. Apr. 30, 2020), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 310 (Tenn. Aug. 11, 2020).

Evidence was sufficient to support defendant's convictions because it showed that a co-defendant and defendant made a plan to “hit a lick” on Hispanic people, obtained a working magazine for the malfunctioning handgun, armed themselves, and asked another co-defendant to drive them around town to identify vulnerable targets. After choosing a house, the co-defendant and defendant walked back to the house, fired two shots into the air, and ordered the victims onto the ground, one of the men took a victim's wallet, and when they were surprised by the victims inside the house opening the door, the co-defendant and defendant opened fire, striking the house and four people present. State v. Young, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 335 (Tenn. Crim. App. May 12, 2020), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 507 (Tenn. Sept. 21, 2020).

There was sufficient evidence to support defendant's convictions for two counts of aggravated assault, including evidence that defendant brandished a knife and walked toward the victim inside an apartment and continued toward the victim as the victim walked backward, reasonably fearing imminent bodily injury as a result of defendant's conduct, and that defendant used a knife, a deadly weapon, to inflict bodily injury on the victim. State v. Parrish, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 346 (Tenn. Crim. App. May 15, 2020), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 545 (Tenn. Oct. 8, 2020).

Evidence was sufficient to support defendant's convictions of aggravated assault and domestic assault, where the evidence showed that the victim and defendant were dating and had a sexual relationship, during a tussle defendant ended up on top of the victim with his hands around her neck, and after the incident a police officer saw scratches on the victim's neck and other parts of the body. State v. Cartwright, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 384 (Tenn. Crim. App. June 2, 2020).

Evidence was sufficient to support defendant's convictions of aggravated and domestic assault; defendant used his vehicle to cause the victim to reasonably fear injury, defendant attempted to strike the victim's car, causing her to drive off of the roadway to prevent a collision and potential injury, she expressed fear that something would happen to her and called the police during the incident, her testimony was alone sufficient, and she was a domestic abuse victim because she and defendant had been in a romantic relationship and shared a child. State v. Alexander, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 392 (Tenn. Crim. App. June 5, 2020), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 506 (Tenn. Oct. 9, 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).

Evidence was sufficient to support defendant's convictions of three counts of aggravated assault and one count of aggravated kidnapping because it showed that during an argument defendant forced the victim into a chair, he blocked the victim from leaving the residence and grabbed her by the neck, and when the victim tried to leave again defendant brandished a knife and told her she would only leave in a body bag. State v. Stevens, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 626 (Tenn. Crim. App. Sept. 21, 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 sustain defendant's convictions for especially aggravated robbery and aggravated assault, as the record indicated defendant hit the victim in the back of the head three times with a hatchet and stole $13.00 and a bus pass from the victim's pocket and the victim testified that as a result of the attack he lost consciousness, suffered a skull fracture, received nearly thirty stitches, remained scarred and disfigured, and continued to experience pain and dizziness. State v. Goff, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 768 (Tenn. Crim. App. Nov. 30, 2020).

16. —Insufficient.

Where the trial court convicted defendant of reckless aggravated assault based on police testimony of the deceased victim's hearsay statements made at the crime scene, defendant's conviction could not be sustained. State v. Maclin, 183 S.W.3d 335, 2006 Tenn. LEXIS 6 (Tenn. 2006), cert. denied, Anderson v. Tennessee, 549 U.S. 828, 127 S. Ct. 47, 166 L. Ed. 2d 49, 2006 U.S. LEXIS 5944 (2006).

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), dismissed, Fisher v. Genovese, — F. Supp. 2d —, 2020 U.S. Dist. LEXIS 79795 (M.D. Tenn. May 6, 2020).

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).

Evidence did not establish that the victim constructively possessed any of the property taken from an apartment because the evidence did not support a conclusion that the victim had any interest in or right to the items taken from the apartment, and the victim's presence as a guest did not establish that the victim had a greater right to possess the items than defendant. Likewise, the lack of evidence regarding from where the items were taken precluded a conclusion that the items were taken from the victim's immediate presence and control. Boatwright v. State, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 178 (Tenn. Crim. App. Mar. 10, 2020).

17. Enhancement Factors.

The sentence enhancement factor that personal injury inflicted upon the victim was “particularly great” is an element of the offense of aggravated assault causing serious bodily injury and could not be used to enhance defendant's sentence. State v. Jones, 883 S.W.2d 597, 1994 Tenn. LEXIS 259 (Tenn. 1994).

The sentence enhancement factors that defendant had no hesitation about committing a crime when the “risk to human life was high” and that the “potential for bodily injury” to a victim was great” are not elements of the offense of aggravated assault causing serious bodily injury, and can be used for enhancement purposes if the facts of the case warrant such use. State v. Jones, 883 S.W.2d 597, 1994 Tenn. LEXIS 259 (Tenn. 1994); 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).

The use of a deadly weapon is not an essential element of an aggravated assault causing serious bodily injury, and thus can be used as an enhancement factor in sentencing following conviction. State v. Carter, 986 S.W.2d 596, 1998 Tenn. Crim. App. LEXIS 166 (Tenn. Crim. App. 1998).

Where the affidavit of complaint states that defendant struck a police officer on the head with his fist during a traffic stop, he necessarily committed aggravated assault under Tennessee law. When defendant pleaded guilty to a federal offense for possessing with intent to distribute five grams or more of cocaine base, the federal district court did not err by designating him as a career offender because his prior Tennessee conviction for aggravated assault was properly counted as a crime of violence under U.S. Sentencing Guidelines Manual § 4B1.2(a)(2). In re Smith, 2016 U.S. App. LEXIS 23525 (6th Cir. Oct. 27, 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).

18. Sentencing.

Defendant's ninety-four-month sentence for possessing cocaine with the intent to distribute and for violating 8 U.S.C. § 1326(a)(1), (a)(2), (b)(2), relating to the illegal reentry of removed aliens, was improperly enhanced by sixteen levels pursuant to U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A)(ii) because his prior conviction for vehicular assault pursuant to T.C.A. § 39-13-106(a), which required proof of the reckless use of force against a person or property of another, was not a crime of violence based on cases examining 18 U.S.C. § 16(a), which contained identical language to the guideline's catch-all provision. Moreover, the enhancement could not be sustained via the enumerated list of crimes in § 2L1.2(b)(1) by analogizing it to aggravated assault under T.C.A. § 39-13-102(a)(2) because only enumerated offenses could trigger the enhancement. United States v. Portela, 469 F.3d 496, 2006 FED App. 430P, 2006 U.S. App. LEXIS 28733 (6th Cir. Tenn. 2006).

Defendant's 10-year maximum sentence for aggravated assault that resulted in a permanent head injury to the victim was appropriate under T.C.A. § 40-35-114 given defendant's lack of potential for rehabilitation, his past felony causing death, and the past failure of alternatives to incarceration. State v. Jones, 341 S.W.3d 318, 2010 Tenn. Crim. App. LEXIS 943 (Tenn. Crim. App. Nov. 5, 2010), appeal denied, — S.W.3d —, 2011 Tenn. LEXIS 251 (Tenn. Mar. 9, 2011).

Trial court did not err by refusing to apply mitigating factors because defendant grabbed a wooden beam, struck the victim numerous times, caused extensive injuries to the victim's head and face, and stated numerous times during the attack that he was going to kill the victim; although the victim fell on the ground after the first strike, terminating any threat by the victim, defendant continued hitting the victim while he lay on the ground. State v. Tiger, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 253 (Tenn. Crim. App. Apr. 4, 2016).

Trial court did not abuse its discretion in imposing consecutive sentences for defendant's convictions of reckless homicide and reckless aggravated assault; defendant was found to be a dangerous offender whose behavior indicated little or no regard for human life and no hesitation about committing a crime in which the risk to human life was high, plus consecutive sentences were reasonably related to the severity of the offenses and necessary to protect the public. State v. Beaty, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 491 (Tenn. Crim. App. July 8, 2016).

In a case where defendant was convicted of three counts of aggravated assault, the trial court did not abuse its discretion by imposing concurrent maximum sentences of 15 years for a persistent offender because defendant had a very lengthy history of criminal convictions beyond those necessary to establish the appropriate range; he had a history of failing to comply with the conditions of release into the community based on over 20 previous revocations of probation or parole; and he was on bail when he committed the current crimes; however, the trial court erred by failing to merge all three convictions into a single conviction as they were based on the same occurrence and were indicted as alternative theories of the same offense. State v. Baxter, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 747 (Tenn. Crim. App. Sept. 30, 2016).

Trial court found that defendant was a dangerous offender whose behavior indicated little or no regard for human life, and consecutive sentences were reasonably related to the severity of the offenses committed and were necessary to protect the public, and thus the trial court did not abuse its discretion in imposing consecutive sentences; however, defendant's conviction for reckless aggravated assault had to merge into his conviction for reckless homicide, resulting in a total effective sentence of four years. State v. Beaty, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 842 (Tenn. Crim. App. Nov. 8, 2016).

Trial court did not err in sentencing defendant to an effective seven years'  confinement for two counts of aggravated assault or in denying his request for alternative sentencing as confinement was necessary to avoid depreciating the seriousness of the offenses and to deter other individuals from similar acts because defendant assaulted the victim three times, culminating with a severe beating that merited a one-week hospitalization; the final assault occurred while defendant was released on bond for the first assault; in jail telephone calls, defendant discussed beating the victim, and he and a friend laughed about it; and defendant's laughter in the context of the jail conversation indicated a lack of remorse. State v. Thomas, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 947 (Tenn. Crim. App. Dec. 23, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 263 (Tenn. Apr. 13, 2017).

Others were in the area when defendant began shooting, and thus the trial court did not abuse its discretion in applying the enhancement factor regarding no hesitation to commit a crime when the risk to human life was high, plus nothing established that the trial court wholly departed from the statutes in applying the various enhancement factors and within-range sentences; thus, there was no abuse of discretion in defendant's sentences of 23 years for aggravated robbery, five years for aggravated assault, and four years for attempted voluntary manslaughter. State v. Steed, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 343 (Tenn. Crim. App. May 5, 2017).

Trial court did not abuse its discretion in ordering defendant to serve six years for vehicular homicide and four years for reckless aggravated assault, after considering defendant's history of criminal behavior, the fact that the offenses included more than one victim, and defendant's good work history. State v. Lutrell, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 592 (Tenn. Crim. App. July 6, 2017).

Defendant had more than enough prior convictions to be considered a career offender because the prior aggravated assaults he committed were Class C felonies in which a statutory element of the offense was serious bodily injury, State v. Kirk, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 635 (Tenn. Crim. App. July 19, 2017).

In a case in which defendant was convicted of aggravated assault and child abuse, and sentenced to consecutive prison terms of six and four years, for a total effective sentence of 10 years, the evidence supported the trial court's imposition of consecutive sentences under the dangerous offender category because defendant, the two-month-old victim's caretaker, was frustrated with the victim's fussiness and was rough with him; the victim sustained 23 fractures throughout his body; defendant admitted to hearing a “pop” sound when aggressively handling the infant; and the trial court found it was necessary to protect the public from further criminal conduct and, in particular, any young child that defendant might come in contact with. 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).

Trial court properly imposed a sentence of ten years'  confinement because the sentence was within the statutory range and presumed reasonable; as a Range II, multiple offender, defendant was subject to a sentencing range of six to ten years for aggravated assault, a Class C felony. State v. Lyczkowski, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 913 (Tenn. Crim. App. Oct. 16, 2017).

Evidence was sufficient to support defendant's convictions of aggravated assault because while acting in concert with at least 10 other individuals, he intentionally or knowingly caused serious bodily injury to the victim by beating him severely with brass knuckles until the victim suffered facial fractures and temporarily lost consciousness, plus defendant handed a gun to his brother and told him to shoot the victim. State v. Gomez, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 359 (Tenn. Crim. App. May 9, 2018).

Defendant's 15-year sentence for two counts of aggravated assault was proper, as the sentence was within the range for a Range III offender and the record supported the trial court's application of enhancement factor for cruelty; defendant's conduct of striking the victim on the head once with the pipe supported defendant's conviction, and his striking the victim a second time while he was unable to defend himself supported a finding that defendant's conduct was for the purpose of inflicting pain or suffering for its own sake. State v. Hughes, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 367 (Tenn. Crim. App. May 11, 2018).

Trial court's order of confinement was supported by the record, as defendant had a prior history of criminal offenses and had previously failed to successfully complete parole, and the trial court properly exercised its discretion by ordering defendant to serve his sentence in the Department of Correction. 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).

Defendant's effective 13-year sentence for aggravated assault was proper; it was within the discretion of the trial court to enhance defendant's sentences based on his failure to comply with the conditions of his previous release on parole, and the trial court properly found that defendant had an extensive record of criminal activity, which alone supported the imposition of consecutive sentencing. 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).

Defendant, having received no properly filed notice of the State's intent to seek enhanced punishment, was entitled to relief, and his offender classification was modified from career offender to Range I, standard offender; enhancement factors applied, considering his lengthy criminal record, plus he did not file any mitigating factors, and thus his six-year sentence for aggravated assault was proper. State v. Williams, 558 S.W.3d 633, 2018 Tenn. LEXIS 637 (Tenn. Oct. 12, 2018).

Inherent dangers of strangulation cannot form the basis of a finding that the circumstances of the offense are particularly exaggerated when the conviction offense is assault by strangulation; the legislature has seen fit to make aggravated assault by strangulation, even of one's romantic partner, an offense eligible for judicial diversion, and thus the fact of the defendant's having committed that offense cannot support a denial of judicial diversion. The record did not support the denial in this case. State v. Hatfield, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 4 (Tenn. Crim. App. Jan. 3, 2019).

Trial court did not err in effectively sentencing defendant to 12 years for his aggravated assault and aggravated robbery convictions because defendant was sentenced to a within-range sentence as defendant faced a sentence of eight to 12 years for the aggravated robbery, and three to six years for the aggravated assault; the trial court properly applied enhancement factors based on defendant's prior offense of theft of property, his role as a leader in the commission of the crime, his failure to complete judicial diversion, and his status on judicial diversion at the time of the commission of the offense; and the trial court thoroughly and completely applied the statutory sentencing principles. State v. Godwin, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 6 (Tenn. Crim. App. Jan. 4, 2019), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 234 (Tenn. May 20, 2019).

Defendant's sentence was not an abuse of discretion because (1) defendant's firearm offense sentence was statutorily set, (2) the aggravating factor for particularly great injury was properly applied to defendant's aggravated assault sentence based on the victim's written statement describing specific, objective examples of the long-lasting and significant effects defendant's conduct had and continued to have on the victim, (3) the sentence was within the range defendant faced as a Range I offender, and (4) defendant did not state what mitigating factors defendant believed the court should have applied. State v. Blackmon, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 435 (Tenn. Crim. App. July 17, 2019).

Trial court did not abuse its discretion by imposing the maximum sentence for each conviction of aggravated assault and aggravated kidnapping because it articulated on the record its reasons for imposing the sentences, it found that defendant's prior convictions were significant and established a history to enhance his sentence because they were very violent attacks on the victim. The trial court found that defendant had previously failed to comply with the conditions of his probation for his prior California convictions. State v. Olivera, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 447 (Tenn. Crim. App. July 26, 2019), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 580 (Tenn. Dec. 5, 2019).

Trial court ordered defendant to serve his 10-year sentence for aggravated assault consecutively to his outstanding federal sentence, finding that consecutive sentencing was mandatory pursuant to Tenn. R. Crim. P. 32(c)(3)(A); however, defendant was on supervised release for a federal felony conviction when he committed the instant offenses, and because federal supervised release was not analogous to parole, Rule 32(c)(3)(A) did not apply. State v. Sweeney, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 644 (Tenn. Crim. App. Oct. 11, 2019), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 116 (Tenn. Feb. 19, 2020).

Trial court did not err in ordering defendant to serve his 10-year sentence for aggravated assault consecutively to his outstanding federal sentence, as consecutive sentencing was warranted pursuant to Tenn. R. Crim. P. 32(c)(2)(B), as good cause did not exist to run the sentences concurrently; defendant had an extensive criminal history that included convictions for violent offenses, had been on probation on multiple occasions, and had his probation revoked multiple times. State v. Sweeney, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 644 (Tenn. Crim. App. Oct. 11, 2019), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 116 (Tenn. Feb. 19, 2020).

Trial court did not abuse its discretion by imposing the maximum sentence for aggravated assault within the defendant's applicable range as a Range II multiple offender; the trial court considered and applied enhancement factors, found no mitigating factors applied, and considered the applicable sentencing principles, and defendant's claim that the trial court placed too much weight on the enhancement factors was not a ground for appeal. State v. Sweeney, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 644 (Tenn. Crim. App. Oct. 11, 2019), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 116 (Tenn. Feb. 19, 2020).

Record amply supported the application of the statute to the Defendant's sentences for voluntary manslaughter and aggravated assault convictions; the trial court noted that the 25-year-old defendant had a criminal history of multiple violent offenses, mostly committed with firearms, and he committed the offenses in this case while on release into the community. State v. Wright, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 45 (Tenn. Crim. App. Jan. 29, 2020).

Trial court properly sentenced defendant to a within range sentence of eight years and six months for aggravated assault and 11 months, 29 days for both reckless endangerment and domestic assault because, as a Range II offender multiple offender, defendant was subject to a sentencing range of six to 10 years for aggravated assault, and 11 months, 29 days for the Class A misdemeanors of reckless endangerment and domestic assault; defendant had a history of criminal convictions in addition to those necessary to establish the range; and he was on release from a federal sentence when he committed the offenses. State v. Porter, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 654 (Tenn. Crim. App. Oct. 6, 2020).

Trial court did not err in ordering that defendant's entire sentence for aggravated assault be served in confinement and in denying full probation because the trial court needed to avoid depreciating the seriousness of the offense; the sentence of incarceration for the entire sentence and the denial of probation was compliant with the purposes and principles of sentencing; defendant violated probation twice in 2018, within a span of four months, and also committed a new offense which resulted in a conviction; and defendant lacked the potential for rehabilitation. State v. Kirby, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 759 (Tenn. Crim. App. Nov. 30, 2020).

19. Election of Offenses.

Defendant's aggravated assault conviction had to be reversed because the State's failure to elect an offense as to the aggravated assault charge, and the trial court's failure to require the State to do so, resulted in plain error; because the State failed to elect the specific instance for which it wanted the jury to consider for the charge, a clear and unequivocal rule of law was breached, and defendant's constitutional right to a unanimous verdict was adversely affected. State v. Smith, 492 S.W.3d 224, 2016 Tenn. LEXIS 383 (Tenn. June 24, 2016).

Because the State adduced proof of more than one incident that each matched the allegations of the charging instrument, the election of offenses doctrine was implicated; the State's proof at trial allowed the jury to consider two incidents as each matching the single charge in the indictment for an aggravated assault, committed by violating an order of protection. State v. Smith, 492 S.W.3d 224, 2016 Tenn. LEXIS 383 (Tenn. June 24, 2016).

Defendant repeatedly punched and choked the victim until she punched him, defendant then threatened to kill her if he could not find his marijuana and exited the room, and then defendant returned moments later and struck the victim on the head with a revolver; defendant's actions occurred in such close temporal and geographic proximity that they constituted one act of aggravated assault, and the State was not required to make an election of offenses. State v. Anderson, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 114 (Tenn. Crim. App. Feb. 17, 2017), aff'd, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 433 (Tenn. Crim. App. May 24, 2017).

20. Verdicts.

Defendant claimed the verdicts on his convictions for reckless homicide and reckless aggravated assault were inconsistent, but he failed to cite authority for this, which could result in waiver; in any event, inconsistent verdicts were not a basis for relief. 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).

21. Merger.

Reckless aggravated assault is a lesser included offense of reckless homicide under part (b) of the State v. Burns  test as reckless aggravated assault fails to meet the definition of a lesser included offense of reckless homicide under Burns  part (a) only in the respect that it contains a statutory element establishing a less serious harm (serious bodily injury versus death) to the same person; thus, defendant's conviction for reckless aggravated assault had to merge into the conviction for reckless homicide. State v. Beaty, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 842 (Tenn. Crim. App. Nov. 8, 2016).

Failure to merge defendant's aggravated assault convictions, one based on a violation of a court order and one based on the use or display of a deadly weapon, constituted plain error. State v. Anderson, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 114 (Tenn. Crim. App. Feb. 17, 2017), aff'd, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 433 (Tenn. Crim. App. May 24, 2017).

Trial court did not err by refusing to merge the conviction of attempted voluntary manslaughter into the conviction of aggravated assault because, while the convictions arose from the same act or transaction, both of the offenses contained elements that the other did not, and there was no evidence that the legislature intended to prohibit multiple punishments in such circumstances. Accordingly, defendant's dual convictions did not violate double jeopardy. State v. Golden, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 169 (Tenn. Crim. App. Mar. 5, 2020), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 390 (Tenn. July 23, 2020).

22. Premeditation.

Defendant was properly convicted of first-degree premeditated murder and aggravated assault because, inter alia, defendant's mental defect did not prevent him from comprehending what was being said during his interview and his inquiry as to when a lawyer could come was not an unequivocal request for counsel, defendant admitted that he shot one person, had a motive for the shooting, procured a gun, fled the scene, disposed of the gun, tried to remove gunshot residue, and attempted to hide from police, and the jury could reasonably infer that, when he sprayed 32 bullets in the two assault victims'  direction, they reasonably feared for their lives. State v. Simmon, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 204 (Tenn. Crim. App. Mar. 19, 2018), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 428 (Tenn. July 19, 2018).

NOTES TO DECISIONS

1. Elements.

Defendant could not be convicted of felony reckless endangerment, T.C.A. § 39-13-103, as a lesser included offense of attempted second degree murder in a case where defendant stabbed defendant's former wife four times outside a bar during an altercation; application of the Burns test dictated that felony reckless endangerment is not a lesser included offense because it requires a different element of proof than does attempted second degree murder and its intent requirement does not indicate a lesser culpability or less serious risk of harm than does attempted second degree murder. State v. Rush, 50 S.W.3d 424, 2001 Tenn. LEXIS 587 (Tenn. 2001).

Defendant could not be convicted of misdemeanor reckless endangerment, T.C.A. § 39-13-103, as a lesser included offense of attempted second degree murder in a case where defendant stabbed defendant's former wife four times outside a bar during an altercation; application of the Burns test for determining whether an offense is a lesser included offense dictated that misdemeanor reckless endangerment is not a lesser included offense because it requires only a lesser degree of culpability—recklessness as opposed to knowledge—than does attempted second degree murder and its intent requirement requires a lesser culpability or less serious risk of harm than does attempted second degree murder. State v. Rush, 50 S.W.3d 424, 2001 Tenn. LEXIS 587 (Tenn. 2001).

Because proof of a deadly weapon is always required for a felony reckless endangerment conviction, and because the deadly weapon element does not reflect an intent requirement indicating lesser culpability or a less serious risk of harm, felony reckless endangerment is not a lesser included offense of attempted second degree murder. State v. Rush, 50 S.W.3d 424, 2001 Tenn. LEXIS 587 (Tenn. 2001).

Misdemeanor reckless endangerment includes all of the elements of felony reckless endangerment except for the element requiring use of a deadly weapon; therefore, misdemeanor reckless endangerment is a lesser included offense of attempted second degree murder. State v. Rush, 50 S.W.3d 424, 2001 Tenn. LEXIS 587 (Tenn. 2001).

2. —Recklessness.

Defendant's conduct in firing shots at a house, where occupants were not his intended victims, constituted reckless endangerment but was not ‘intentional or knowing’ so as to rise to the level of aggravated assault. State v. Wilson, 924 S.W.2d 648, 1996 Tenn. LEXIS 361 (Tenn. 1996).

Defendant's mere discharge of a gun into the air or up into a tree top was not sufficient to constitute the commission of reckless endangerment. State v. Fox, 947 S.W.2d 865, 1996 Tenn. Crim. App. LEXIS 350 (Tenn. Crim. App. 1996).

Driver who had a couple of drinks and approached a blind curve at night at such speed that he could not stop in time to avoid hitting a car in his lane attempting to make a legal left turn was reckless and was aware of the risk created by his driving, but consciously disregarded it. State v. Lewis, 978 S.W.2d 558, 1997 Tenn. Crim. App. LEXIS 1105 (Tenn. Crim. App. 1997).

Evidence was sufficient to support reckless endangerment conviction where testimony indicated defendant was driving fifteen to twenty miles over the speed limit and “whipped up into” an unsuspecting man's driveway, such that the man had to run to avoid being run over. State v. Neely, 1 S.W.3d 679, 1999 Tenn. Crim. App. LEXIS 415 (Tenn. Crim. App. 1999).

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. —Threat of Harm.

Reckless endangerment will occur even if the victim does not suffer the threatened harm. State v. Baggett, 836 S.W.2d 593, 1992 Tenn. Crim. App. LEXIS 348 (Tenn. Crim. App. 1992); State v. Ramsey, 903 S.W.2d 709, 1995 Tenn. Crim. App. LEXIS 14 (Tenn. Crim. App. 1995).

For the threat of bodily injury to be imminent, the person must be placed in a reasonable probability of danger as opposed to a mere possibility of danger. State v. Payne, 7 S.W.3d 25, 1999 Tenn. LEXIS 584 (Tenn. 1999).

4. —Conduct Victimizing More Than One Person.

Even though defendant's reckless conduct victimized more than one person, where the facts showed that it was one continuous act, a single course of conduct, it did not justify multiple convictions. State v. Ramsey, 903 S.W.2d 709, 1995 Tenn. Crim. App. LEXIS 14 (Tenn. Crim. App. 1995).

5. —Conduct Victimizing the Public at Large.

The term “public at large” may be used in an indictment for reckless endangerment to designate that class of persons occupying the zone of danger. State v. Payne, 7 S.W.3d 25, 1999 Tenn. LEXIS 584 (Tenn. 1999).

Reckless endangerment can be committed against the public at large where the state shows that a representative of that group was in an area in which a reasonable probability of danger existed. State v. Payne, 7 S.W.3d 25, 1999 Tenn. LEXIS 584 (Tenn. 1999).

6. Double Jeopardy.

Double jeopardy did not attach in a prosecution for reckless endangerment and driving while under the influence (DUI), where each conviction was based upon distinct conduct; the state's proof to the charge of DUI did not include proof of defendant's reckless driving; and the offenses neither had identical statutory elements, nor were lesser mutually inclusive. State v. Boggs, 865 S.W.2d 920, 1992 Tenn. Crim. App. LEXIS 896 (Tenn. Crim. App. 1992).

Convictions for the offenses of aggravated assault and reckless endangerment did not violate double jeopardy since each offense required proof of an additional fact that the other did not. State v. Brooks, 909 S.W.2d 854, 1995 Tenn. Crim. App. LEXIS 701 (Tenn. Crim. App. 1995).

Appellate court erred by holding that defendant's convictions of evading arrest, T.C.A. § 39-16-603(b), and reckless endangerment, T.C.A. § 39-13-103, violated the prohibitions against double jeopardy in the Fifth Amendment and Tenn. Const. art. I, § 10 because the crimes did not constitute the same offense nor was one a lesser included offense of the other for the purpose of the Blockburger  test. Reckless endangerment did not require the State to prove any of the elements of evading arrest, reckless endangerment simply required proof of imminent danger of death or serious bodily harm to another person, evading arrest did not require the use of a deadly weapon as reckless endangerment did, and the State did not need to prove that the danger was to a person who was an innocent bystander or third party in order to prove a defendant guilty beyond a reasonable doubt of reckless endangerment. State v. Cross, 362 S.W.3d 512, 2012 Tenn. LEXIS 155 (Tenn. Mar. 9, 2012).

Even though defendant's convictions of criminally negligent homicide and felony reckless endangerment were inconsistent, they did not have to be set aside because the evidence was sufficient to support both convictions. State v. Stewart, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 776 (Tenn. Crim. App. Oct. 18, 2016), review denied and ordered not published, — S.W.3d —, 2017 Tenn. LEXIS 166 (Tenn. Mar. 9, 2017).

7. Zone of Danger.

The “zone of danger” is that area in which a reasonable probability exists that the defendant's conduct would place others in imminent danger of death or serious bodily injury if others were present in that zone or area. State v. Payne, 7 S.W.3d 25, 1999 Tenn. LEXIS 584 (Tenn. 1999).

Evidence showing that defendant shot spouse at close range, while the victim of the reckless endangerment charge was standing within defendant's line of fire and near the spouse, was sufficient to convict defendant under this statute. State v. Alder, 71 S.W.3d 299, 2001 Tenn. Crim. App. LEXIS 771 (Tenn. Crim. App. 2001).

Because the record was devoid of evidence that anyone was in the vicinity when defendant allegedly discharged his gun, he could not have violated T.C.A. § 39-13-103. United States v. Mukes,  980 F.3d 526, 2020 FED App. 360P, 2020 FED App. 0360P (6th Cir.), 2020 U.S. App. LEXIS 36085 (6th Cir. Nov. 17, 2020).

8. Lesser Included Offense.

In a felony reckless endangerment case, failure to charge the jury with the lesser included offense of misdemeanor reckless endangerment was reversible error because evidence at trial would have supported a jury instruction on the lesser included offense. State v. Nelson, 275 S.W.3d 851, 2008 Tenn. Crim. App. LEXIS 346 (Tenn. Crim. App. Apr. 24, 2008).

Because reckless endangerment with a deadly weapon was not a lesser-included offense of aggravated assault committed by intentionally or knowingly causing another to reasonably fear imminent bodily injury by use or display of a deadly weapon, the trial court committed plain error by charging reckless endangerment with a deadly weapon as a lesser included offense of reckless endangerment. Defendant was entitled to a new trial on aggravated assault. State v. Cross, 362 S.W.3d 512, 2012 Tenn. LEXIS 155 (Tenn. Mar. 9, 2012).

Defendant did not show it was plain error not to instruct a jury on the lesser included offense of misdemeanor reckless endangerment because the jury was instructed on the lesser included offenses of attempted second degree murder and attempted voluntary manslaughter but chose to convict defendant of attempted first degree murder, so defendant did not show a reasonable probability that a reasonable jury would have convicted defendant of misdemeanor reckless endangerment instead of attempted first degree murder. State v. Chambers, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 241 (Tenn. Crim. App. Apr. 15, 2019), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 330 (Tenn. July 19, 2019).

9. Sufficiency of Evidence.

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; at 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 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 support defendant's reckless endangerment conviction because it showed that: (1) Defendant sped past two vehicles in no passing zones on blind curves while being chased by a deputy sheriff in a marked cruiser with its flashing lights and siren engaged; (2) He did so on a road with a 45 mile per hour speed limit while accelerating to speeds of 80 to 90 miles per hour; and (3) There were at least two other drivers that were placed in the zone of danger by defendant's conduct. State v. Cross, 362 S.W.3d 512, 2012 Tenn. LEXIS 155 (Tenn. Mar. 9, 2012).

Evidence that defendant swerved his vehicle toward an officer's vehicle, trying to force it into oncoming traffic, was sufficient to permit jury to find defendant committed reckless endangerment under T.C.A. § 39-13-103. State v. Houston, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 112 (Tenn. Crim. App. Feb. 11, 2013), appeal denied, — S.W.3d —, 2013 Tenn. LEXIS 449 (Tenn. May 8, 2013), cert. denied, Houston v. Tennessee, 189 L. Ed. 2d 747, 134 S. Ct. 2704, 572 U.S. 1153, 2014 U.S. LEXIS 3967 (U.S. 2014).

There was overwhelming circumstantial evidence that defendant was the perpetrator of the offenses of misdemeanor reckless endangerment and vandalism because three witnesses testified that they saw defendant's car shortly after the shootings, and when defendant was arrested, he had a shotgun in his lap and an over half-empty box of shotgun shells and shotgun shells in his car. State v. Robertson, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 401 (Tenn. Crim. App. May 27, 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 sustain defendant's convictions for reckless endangerment because one victim was placed in a reasonable probability of imminent danger of death or serious bodily injury when defendant drove his truck in such a way that the victim thought he was going to hit her; defendant drive into another victim's apartment, which placed that victim in a reasonable probability of imminent danger of death or serious bodily injury. State v. Rush, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 507 (Tenn. Crim. App. July 15, 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).

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 that defendant shot approximately 15 bullets in to the victims'  house, at least one bullet hole was found in the headboard of a victim's bed and others were found throughout the house, was sufficient to support defendant's conviction for reckless endangerment. State v. Lagrone, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 751 (Tenn. Crim. App. Sept. 30, 2016).

Evidence was sufficient to support defendant's convictions of criminally negligent homicide and reckless endangerment where it showed that, despite a do not enter sign, defendant drove west in an eastbound lane of a highway and struck the victim's car. State v. Stewart, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 776 (Tenn. Crim. App. Oct. 18, 2016), review denied and ordered not published, — S.W.3d —, 2017 Tenn. LEXIS 166 (Tenn. Mar. 9, 2017).

Evidence was sufficient to sustain defendant's convictions for aggravated assault and reckless endangerment. Defendant's attack left the victim bleeding profusely from the side of her neck that required medical attention, including stitches and pain medication, and defendant further endangered the victim by throwing her cellular phone out of her reach to prevent her from calling for help. 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 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), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 113 (Tenn. Feb. 16, 2017).

Evidence that two defendants opened fire into a crowd of people, placing them in imminent danger of death or serious injury was sufficient to support convictions for reckless endangerment. 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).

State established reckless endangerment and evading arrest by showing that defendant led police on a seven-mile, high-speed chase which put police officers'  and other motorists'  lives in imminent danger, plus defendant intentionally failed to stop when officers activated lights and sirens, which placed the officers and other motorists in danger; the jury viewed three dash-cam videos of the high-speed chase, showing defendant weaving through vehicles and crossing into oncoming lanes of traffic, and he reached speeds of up to 117 miles per hour. State v. McCommon, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 161 (Tenn. Crim. App. Mar. 3, 2017).

State presented sufficient evidence to support defendant's conviction for reckless endangerment with a deadly weapon because the jury accredited both the victim's testimony regarding being cut by defendant with a box cutter, and a doctor's testimony that the victim's lacerations were caused by a razor-sharp blade; any credibility questions raised by the victim's insobriety were within the province of the jury, and the court of criminal appeals could not reevaluate the victim's credibility. State v. Pittman, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 394 (Tenn. Crim. App. May 16, 2017).

Defendant was properly convicted of aggravated vehicular homicide, vehicular assault, and reckless endangerment with a deadly weapon because his intoxication proximately caused a car crash that killed his son and injured his nephew, while his convictions for vehicular assault and reckless endangerment both stemmed from the crash, his DUI conviction should merge with the vehicular assault conviction since it was a lesser-included offense and he could not be punished separately for one act of DUI that caused serious bodily injury, and the trial court properly considered the aggregating, mitigating, and sentencing factors. State v. Steelman, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 936 (Tenn. Crim. App. Oct. 30, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 99 (Tenn. Feb. 14, 2018).

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), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 217 (Tenn. Apr. 19, 2018).

Evidence was sufficient to support defendant's conviction for reckless endangerment 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. Furthermore, defendant's admissible statements to the police established defendant's identity as the shooter. State v. Butts, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 243 (Tenn. Crim. App. Mar. 29, 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).

Evidence was sufficient to convict defendant of reckless endangerment because the proof established that defendant twice struck a restaurant building with his 5,746 pound vehicle, causing the patrons who were seated mere feet away to scream and the glass separating the vehicle from the patrons to rattle; and defendant then recklessly drove through the restaurant parking lot, nearly striking an individual in the process. State v. Hamm, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 561 (Tenn. Crim. App. July 26, 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), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 49 (Tenn. Jan. 16, 2019).

Sufficient evidence supported defendant's convictions for attempted first degree murder, two counts of aggravated assault, reckless endangerment, and employment of a firearm during the commission of or attempt to commit a dangerous felony because the evidence showed defendant fired numerous shots at victims in the parking lot of a crowded shopping mall. State v. Chambers, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 241 (Tenn. Crim. App. Apr. 15, 2019), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 330 (Tenn. July 19, 2019).

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), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 314 (Tenn. July 17, 2019).

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).

All three defendants were involved in the events that led up to and included the victim's murder, and there was sufficient evidence from which the jury could have found that an accomplice's testimony was corroborated and to sustain the convictions for each defendant for first degree murder, conspiracy, attempt, employing a firearm during the commission of a dangerous felony, and reckless endangerment; they all met to discuss killing someone in retaliation for the murder of one defendant's sister earlier that day, and witnesses identified them. State v. Clayton, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 458 (Tenn. Crim. App. July 31, 2019), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 556 (Tenn. Dec. 10, 2019).

Evidence was sufficient to support defendant's conviction of reckless endangerment because it showed that two troopers each inspected defendant's truck's brake box and break-away device, and each deemed the trailer's brakes to be in operable, but despite being so advised defendant drove the trailer on a highway at interstate speeds without the required brakes while other motorists were also on the road. State v. Miller, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 58 (Tenn. Crim. App. Feb. 3, 2020).

evidence was sufficient to support defendant's convictions for reckless endangerment because it showed that defendant fired his gun into the vehicle toward his wife who was holding one baby and was sitting next to the other baby. State v. Stinnett, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 89 (Tenn. Crim. App. Feb. 12, 2020), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 389 (Tenn. June 5, 2020).

Defendant's contention that the evidence was insufficient to support his convictions for attempted second degree murder and other offenses because witnesses testified that the victim was the primary aggressor failed because a reasonable juror could have found that defendant's self-defense claim was not well-founded given the victim's testimony that he had not drawn his gun when defendant opened fire and that defendant turned and walked toward the victim when the victim came outside, engaging further rather than continuing to walk away. State v. Cole, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 214 (Tenn. Crim. App. Apr. 1, 2020).

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).

10. Sentencing.

Trial court properly imposed concurrent, three-year terms after defendant pled guilty to reckless endangerment with a deadly weapon under T.C.A. § 39-13-103 and theft of merchandise over five hundred dollars under T.C.A. § 39-14-146 and denied probation where: (1) defendant was a Range II, multiple offender, had repeatedly violated past probation conditions and continued to commit other crimes; (2) she was on probation when she committed these crimes; (3) the conduct of defendant and her accomplices could have cost the victim her life; and (4) defendant did not show an abuse of discretion or overcome the presumption of reasonableness. State v. Caudle, 388 S.W.3d 273, 2012 Tenn. LEXIS 824 (Tenn. Nov. 27, 2012).

Trial court properly imposed two-year sentences for defendant's convictions of criminally negligent homicide and reckless endangerment, even though it erred by applying the use of a deadly weapon enhancement factor to the reckless endangerment conviction, because the trial court properly applied several other enhancement factors. State v. Stewart, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 776 (Tenn. Crim. App. Oct. 18, 2016), review denied and ordered not published, — S.W.3d —, 2017 Tenn. LEXIS 166 (Tenn. Mar. 9, 2017).

Trial court's sentences for three years for Class D felony theft, two years for Class E felony reckless endangerment, and three months for Class A misdemeanor escape were entitled to a presumption of reasonableness because they were within the appropriate range under T.C.A. §§ 39-14-105, 39-13-103, 39-16-605, 40-35-111, 40-35-112; no error was found. State v. Moore, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 982 (Tenn. Crim. App. Nov. 28, 2017).

Trial court properly sentenced defendant to a within range sentence of eight years and six months for aggravated assault and 11 months, 29 days for both reckless endangerment and domestic assault because, as a Range II offender multiple offender, defendant was subject to a sentencing range of six to 10 years for aggravated assault, and 11 months, 29 days for the Class A misdemeanors of reckless endangerment and domestic assault; defendant had a history of criminal convictions in addition to those necessary to establish the range; and he was on release from a federal sentence when he committed the offenses. State v. Porter, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 654 (Tenn. Crim. App. Oct. 6, 2020).

11. Relationship to Federal Sentencing Laws.

Defendant was resentenced for drug trafficking convictions to a term of 300 months because he should not have been sentenced as a career offender under U.S. Sentencing Guidelines Manual (USSG) § 4B1.1 in that his prior conviction for reckless endangerment under T.C.A. § 39-13-103 was not a crime of violence under USSG § 4B1.2; however his criminal history and risk to the public under 18 U.S.C. § 3553(a) required a sentence five years beyond the applicable range. United States v. Johnson, 631 F. Supp. 2d 946, 2009 U.S. Dist. LEXIS 45989 (E.D. Tenn. June 2, 2009).

Defendant's sentence was vacated and remanded because based on current case law, defendant's prior conviction under T.C.A. § 39-13-103 could not be considered a “crime of violence” under U.S. Sentencing Guidelines Manual § 4B1.2(a)(2) because it did not involve the type of “purposeful, violent, and aggressive” conduct as burglary, arson, extortion, or the use of explosives. United States v. Baker, 559 F.3d 443, 2009 FED App. 97P, 2009 U.S. App. LEXIS 5351 (6th Cir. Mar. 16, 2009).

12. Jury Instructions.

The jury instructions were not improper because the trial court did not err in its instruction to the jury regarding criminal responsibility. Moreover, the verdict form listed the charged offense for each count, gave the jury the option of finding defendant not guilty or guilty, and allowed the jury to set the amount of the fine and did the same for each of the charged lesser included offenses. State v. Tipler, — S.W.3d —, 2015 Tenn. Crim. App. LEXIS 113 (Tenn. Crim. App. Feb. 19, 2015).

Trial court did not err by denying defendant's request for a special jury instruction regarding criminally negligent homicide and reckless vehicular homicide because the jury instructions given conveyed that the death had to be likely and foreseeable. State v. Stewart, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 776 (Tenn. Crim. App. Oct. 18, 2016), review denied and ordered not published, — S.W.3d —, 2017 Tenn. LEXIS 166 (Tenn. Mar. 9, 2017).

NOTES TO DECISIONS

1. Bodily Injury.

T.C.A. § 39-13-111(b) does not categorically qualify as a misdemeanor crime of domestic violence for purposes of 18 U.S.C. § 922(g)(9). Violation of a statute that builds on T.C.A. § 39-13-101 but makes it a crime only to cause “bodily injury,” serious or not, does not require the use of violent force.  United States v. Castleman, 695 F.3d 582, 2012 FED App. 344P, 2012 U.S. App. LEXIS 19635 (6th Cir. Sept. 19, 2012).

2. Nondivertible Offense.

In a prosecution for vehicular assault, holding that the charge was a nondivertible offense was proper because driving under the influence (DUI) (at the time nondivertible pursuant to T.C.A. § 40-15-105) was a lesser included offense of vehicular assault and the prohibition of pretrial diversion for DUI applied to vehicular assault as well. State v. Burdine, 888 S.W.2d 463, 1994 Tenn. Crim. App. LEXIS 377 (Tenn. Crim. App. 1994), appeal denied, — S.W.2d —, 1994 Tenn. LEXIS 280 (Tenn. Oct. 3, 1994).

3. Lesser Included Offenses.

Vehicular assault includes driving under the influence (DUI) as a lesser included offense; thus, for double jeopardy purposes, a person cannot be punished separately for DUI and vehicular assault for one act of driving under the influence that causes serious bodily injury. State v. Rhodes, 917 S.W.2d 708, 1995 Tenn. Crim. App. LEXIS 676 (Tenn. Crim. App. 1995).

4. Evidence Sufficient.

Evidence was sufficient to support conviction. State v. Williamson, 919 S.W.2d 69, 1995 Tenn. Crim. App. LEXIS 989 (Tenn. Crim. App. 1995).

In a case where police arrived at the scene of a three-car accident, defendant was found outside the truck while his friend was found in the passenger seat, and defendant's blood alcohol content was .30%, evidence was sufficient to support defendant's convictions for vehicular assault and aggravated vehicular homicide where one motorist was injured and another motorist died. 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).

Evidence was sufficient to support defendant's conviction for aggravated assault where the driver testified that defendant pulled a black and silver gun from his pants and pointed it at her, and she was terrified. 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).

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 conviction for vehicle assault due to intoxication because it showed that his blood alcohol was .08% after the accident, it was likely between .10 and .12 at the time of the accident, defendant was traveling in the center lane of a three lane roadway and he decided to turn right, crossing one lane of traffic when so doing, and he hit the victims at such a speed and with such force that they were both thrown a great distance from the motorcycle. State v. Harris, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 39 (Tenn. Crim. App. Jan. 20, 2017).

Defendant was properly convicted of aggravated vehicular homicide, vehicular assault, and reckless endangerment with a deadly weapon because his intoxication proximately caused a car crash that killed his son and injured his nephew, while his convictions for vehicular assault and reckless endangerment both stemmed from the crash, his DUI conviction should merge with the vehicular assault conviction since it was a lesser-included offense and he could not be punished separately for one act of DUI that caused serious bodily injury, and the trial court properly considered the aggregating, mitigating, and sentencing factors. State v. Steelman, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 936 (Tenn. Crim. App. Oct. 30, 2017), appeal denied, — S.W.3d —, 2018 Tenn. LEXIS 99 (Tenn. Feb. 14, 2018).

5. Sentencing.

Since causing “serious bodily injury” to the victim is an element of vehicular assault, the sentence enhancement factor that the personal injuries inflicted upon the victim were particularly great did not apply in sentencing for that offense. State v. Rhodes, 917 S.W.2d 708, 1995 Tenn. Crim. App. LEXIS 676 (Tenn. Crim. App. 1995).

Trial court erred in applying the enhancement factor of defendant with previous convictions to defendant in connection with defendant's conviction for vehicular assault in violation of T.C.A. § 39-13-106(a); in order to show intoxication, the State relied on defendant's prior driving under the influence conviction to reduce the presumptive level of intoxication to. 08 percent pursuant to T.C.A. § 55-10-408(b), and thus the prior conviction became a necessary element of the offense, which made the application of the enhancement factor improper. State v. Keathly, 145 S.W.3d 123, 2003 Tenn. Crim. App. LEXIS 438 (Tenn. Crim. App. 2003).

Trial court erred in applying the multiple victim enhancement factor to defendant in connection with defendant's conviction for vehicular assault in violation of T.C.A. § 39-13-106(a); because defendant was convicted of an offense involving a specifically named victim in the indictment, the trial court improperly applied this enhancement factor. State v. Keathly, 145 S.W.3d 123, 2003 Tenn. Crim. App. LEXIS 438 (Tenn. Crim. App. 2003).

Because there was no proof concerning the amount of the victim's property loss resulting from a collision, the State was required on remand to provide proof of “particularly great” property loss to support the application of the great amount of property damage enhancement factor to defendant in connection with defendant's conviction of vehicular assault in violation of T.C.A. § 39-13-106(a). State v. Keathly, 145 S.W.3d 123, 2003 Tenn. Crim. App. LEXIS 438 (Tenn. Crim. App. 2003).

Trial court properly applied the high risk to life in crime enhancement factor to defendant in connection with defendant's conviction for vehicular assault in violation of T.C.A. § 39-13-106(a) because when defendant collided with the victim's vehicle, the vehicle clipped the truck trailer in front of the victim, leaving the truck driver in danger due to defendant's driving. State v. Keathly, 145 S.W.3d 123, 2003 Tenn. Crim. App. LEXIS 438 (Tenn. Crim. App. 2003).

Defendant's ninety-four-month sentence for possessing cocaine with the intent to distribute and for violating 8 U.S.C. § 1326(a)(1), (a)(2), (b)(2), relating to the illegal reentry of removed aliens, was improperly enhanced by sixteen levels pursuant to U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A)(ii) because his prior conviction for vehicular assault pursuant to T.C.A. § 39-13-106(a), which required proof of the reckless use of force against a person or property of another, was not a crime of violence based on cases examining 18 U.S.C. § 16(a), which contained identical language to the guideline's catch-all provision. Moreover, the enhancement could not be sustained via the enumerated list of crimes in § 2L1.2(b)(1) by analogizing it to aggravated assault under T.C.A. § 39-13-102(a)(2) [now (a)(1)(B)] because only enumerated offenses could trigger the enhancement. United States v. Portela, 469 F.3d 496, 2006 FED App. 430P, 2006 U.S. App. LEXIS 28733 (6th Cir. Tenn. 2006).

Trial court did not abuse its discretion in sentencing defendant to the Department of Corrections for eight years following his guilty pleas of vehicular homicide, a Class B felony, and vehicular assault, a Class D felony, because defendant was not eligible for a sentence of full probation due to the statutorily imposed minimum jail terms. State v. Key, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 802 (Tenn. Crim. App. Dec. 27, 2019).

NOTES TO DECISIONS

1. Evidence Sufficient.

Evidence was sufficient to sustain defendant's conviction for criminal exposure of another to HIV where the evidence showed that defendant knew he was infected with HIV when he anally penetrated the victim during an aggravated rape. State v. Bonds, 189 S.W.3d 249, 2005 Tenn. Crim. App. LEXIS 1043 (Tenn. Crim. App. 2005), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 159 (Tenn. 2006).

Evidence that defendant was aware of his HIV status, was educated in the ways it could be transmitted, and penetrated multiple orifices of the victim was sufficient to support defendant's convictions for criminal exposure to HIV. State v. Hogg, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 329 (Tenn. Crim. App. Apr. 16, 2013), aff'd in part, rev'd in part, 448 S.W.3d 877, 2014 Tenn. LEXIS 668 (Tenn. Sept. 25, 2014).

Defendant's convictions for criminal exposure to HIV were upheld if the risk related to the charged conduct was more definite than a faint, speculative risk, as shown by expert medical proof. State v. Hogg, 448 S.W.3d 877, 2014 Tenn. LEXIS 668 (Tenn. Sept. 25, 2014).

Evidence was sufficient to convict defendant of criminal exposure to HIV because defendant and the victim engaged in both oral and vaginal sex; forensic testing confirmed the presence of defendant's semen in the victim's vagina and mouth; it was generally known that HIV was spread by the transfer of bodily fluids such as blood, genital secretions, and perhaps saliva; and the act of penetration, whether vaginal or oral, was itself sufficient evidence of exposure of the body of one person to a bodily fluid of another person in a manner that presented a significant risk of HIV transmission. State v. Person, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 32 (Tenn. Crim. App. Jan. 16, 2018).

2. Multiple Counts.

Convictions for multiple counts of especially aggravated sexual exploitation, criminal exposure to HIV, and aggravated statutory rape for various sex crimes were upheld, because defendant penetrated multiple orifices of the victim, including the victim's anus and mouth, and each act defendant performed was capable of producing its own fear, humiliation, pain, and damage to the victim. State v. Hogg, — S.W.3d —, 2013 Tenn. Crim. App. LEXIS 329 (Tenn. Crim. App. Apr. 16, 2013), aff'd in part, rev'd in part, 448 S.W.3d 877, 2014 Tenn. LEXIS 668 (Tenn. Sept. 25, 2014).

3. Joinder of Offenses.

Defendant's conviction for criminal exposure to HIV was vacated as the mandatory joinder rule barred the State from bringing that charge against defendant to trial because the State was aware of defendant's HIV status at the time of the first trial on the aggravated rape charge; the State had already obtained an indictment charging defendant with criminally exposing the victim to HIV during the same sexual encounter that gave rise to the aggravated rape charge; and the assistant district attorney general who conducted the aggravated rape trial acknowledged that she was aware of the indictment and actively elected not to pursue consolidation of the indictments and engaged in the type of “saving back” prohibited by the mandatory joinder rule. State v. Person, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 32 (Tenn. Crim. App. Jan. 16, 2018).

4. Severance of Offenses.

Trial court abused its discretion by denying defendant's motion to sever the offenses because the trial court concluded, without any analysis of a proper basis for admission, that evidence of defendant's HIV status would have been relevant and admissible as proof that he committed the aggravated rape as alleged by the victim, but the record did not support that conclusion as no evidence suggested that defendant's HIV positive status made any fact of consequence with regard to the aggravated rape charge more or less likely. State v. Person, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 32 (Tenn. Crim. App. Jan. 16, 2018).

NOTES TO DECISIONS

1. Construction With Other Law.

Defendant's convictions for assault and domestic assault violated double jeopardy under U.S. Const. amend. VI and Tenn. Const. art. I, § 10 because all of the elements of assault were included in domestic assault and even though domestic assault included an element that assault did not the reverse was not true. State v. Freitas, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 762 (Tenn. Crim. App. Oct. 7, 2016).

2. Sufficiency of Evidence.

Evidence that defendant, who was in a romantic relationship with and lived with the victim, forced himself on the victim, penetrating her vagina with his penis, told her not to leave the room after the rape and raised his hand in a threatening manner when she tried to leave was sufficient to support defendant's convictions for rape, false imprisonment, and domestic assault. 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).

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).

In rejecting defendant's challenge to the sufficiency of the evidence with respect to his convictions for aggravated kidnapping by bodily injury and domestic assault by bodily injury, the court of criminal appeals concluded there was sufficient evidence from which the jury could conclude that the victim's removal and confinement had criminal significance beyond that necessary to consummate the domestic assault. State v. Williams, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 211 (Tenn. Crim. App. Mar. 21, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 446 (Tenn. July 18, 2017).

Criminal court properly convicted defendant of domestic assault because, during an argument, he grabbed the victim with both of his hands, lifted her off of the couch where she had been sitting, and jerked her to the floor, the victim experienced pain and suffered bruising on her arms from the incident, two days later, the victim called 911 and told the operator that defendant had physically assaulted her, when the police officers arrived at the victim's home, she told them how defendant had been physically abusive to her and showed them the bruises on her arms, and the police officers believed that the victim's testimony was consistent with her injuries. State v. Downey, — S.W.3d —, 2017 Tenn. Crim. App. LEXIS 823 (Tenn. Crim. App. Sept. 7, 2017).

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 of domestic assault of the victim, his wife, because he grabbed the victim by the hair, spat in her face, forced her to the ground, straddled her, and slapped her in the face and tried to hit her; the victim recalled having bruises on her arms, shoulder, and legs, as well as a cut on her hand; and the victim's testimony was sufficient to establish the elements of the offense without the need for any photographic evidence. State v. Keast, — S.W.3d —, 2019 Tenn. Crim. App. LEXIS 255 (Tenn. Crim. App. Apr. 18, 2019), appeal denied, — S.W.3d —, 2019 Tenn. LEXIS 444 (Tenn. Aug. 23, 2019).

Evidence adduced at trial was sufficient to sustain defendant's conviction for domestic assault, as it establish that defendant intentionally struck his mother numerous times on the arm and chest and choked her. State v. Steele, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 235 (Tenn. Crim. App. Apr. 13, 2020), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 459 (Tenn. July 17, 2020).

Evidence of domestic assault was insufficient because the State of Tennessee failed to establish that defendant's spouse reasonably feared imminent bodily injury. Although defendant's spouse testified that the spouse was in the spouse's car speaking to defendant on the phone when defendant threatened kill the spouse by putting a bomb in the car if the spouse did not drop the charges against defendant, the spouse did not testify that the spouse feared imminent bodily injury, did not call the police and drove the car several hours later. State v. Jackson, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 353 (Tenn. Crim. App. May 14, 2020), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 454 (Tenn. Aug. 5, 2020).

Evidence was sufficient to support defendant's convictions of aggravated assault and domestic assault, where the evidence showed that the victim and defendant were dating and had a sexual relationship, during a tussle defendant ended up on top of the victim with his hands around her neck, and after the incident a police officer saw scratches on the victim's neck and other parts of the body. State v. Cartwright, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 384 (Tenn. Crim. App. June 2, 2020).

Evidence was sufficient to support defendant's convictions of aggravated and domestic assault; defendant used his vehicle to cause the victim to reasonably fear injury, defendant attempted to strike the victim's car, causing her to drive off of the roadway to prevent a collision and potential injury, she expressed fear that something would happen to her and called the police during the incident, her testimony was alone sufficient, and she was a domestic abuse victim because she and defendant had been in a romantic relationship and shared a child. State v. Alexander, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 392 (Tenn. Crim. App. June 5, 2020), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 506 (Tenn. Oct. 9, 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).

3. Lesser-included Offense Jury Instruction.

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).

4. Sentencing.

Trial court properly sentenced defendant to a within range sentence of eight years and six months for aggravated assault and 11 months, 29 days for both reckless endangerment and domestic assault because, as a Range II offender multiple offender, defendant was subject to a sentencing range of six to 10 years for aggravated assault, and 11 months, 29 days for the Class A misdemeanors of reckless endangerment and domestic assault; defendant had a history of criminal convictions in addition to those necessary to establish the range; and he was on release from a federal sentence when he committed the offenses. State v. Porter, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 654 (Tenn. Crim. App. Oct. 6, 2020).

NOTES TO DECISIONS

1. Sufficiency of Evidence.

Evidence was sufficient to support defendant's conviction of violation of an order of protection; a ban on indirect communication was intended by the issuing court, and defendant violated it, and his threat that he was going to “get” the victim and that it would hurt the victim more if something happened to his children could have been interpreted as a threat of physical harm. State v. Bullington, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 654 (Tenn. Crim. App. Sept. 1, 2016).

Evidence supported defendant's conviction for violating an order of protection because defendant was ordered at a hearing defendant did not attend following a continuance to stay away from defendant's child, the court made specific findings about abuse at the hearing and issued an order of protection instructing defendant to have no contact and to stay away from the parties'  child, the order was mailed to defendant but returned as undeliverable, and defendant violated the order by going to the child's school to see the child. State v. Richardson, — S.W.3d —, 2020 Tenn. Crim. App. LEXIS 448 (Tenn. Crim. App. June 26, 2020), appeal denied, — S.W.3d —, 2020 Tenn. LEXIS 582 (Tenn. Oct. 7, 2020).

3. Sentence.

Defendant's sentence of 11 months, 29 days at 75 percent for violation of an order of protection was not an abuse of discretion; the trial court considered the appropriate purposes of sentencing, defendant had previously violated the victim's order of protection three times, alternative sentencing did not deter defendant from disregarding the court's instructions, and his probation had been revoked. State v. Bullington, — S.W.3d —, 2016 Tenn. Crim. App. LEXIS 654 (Tenn. Crim. App. Sept. 1, 2016).

NOTES TO DECISIONS

1. License Revocation.

In a case in which the trial court imposed on defendant a lifetime ban from driving, the case was remanded for entry of a corrected judgment of defendant's aggravated vehicular homicide conviction to reflect that defendant's license was to be revoked for a period that would extend for the term of defendant's sentence pursuant to the license revocation statute. State v. Solomon, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 788 (Tenn. Crim. App. Oct. 23, 2018).

2. Sentence Upheld.

In an aggravated vehicular homicide, aggravated vehicular assault, and leaving the scene of an accident case, defendant's effective sentence of 33 years was appropriate because the trial court considered the risk and needs assessment in determining defendant's sentence, but did not err in declining to give it any weight as the assessment's conclusion that defendant had a low risk of reoffending was inconsistent with the evidence of his four driving under the influence convictions and other drug- and alcohol-related convictions, his multiple failed attempts at rehabilitation, his continued use of drugs, and the fact that he ran over two people in broad daylight while so intoxicated that he was unable to stay awake. State v. Solomon, — S.W.3d —, 2018 Tenn. Crim. App. LEXIS 788 (Tenn. Crim. App. Oct. 23, 2018).

39-13-201. Criminal homicide.

Criminal homicide is the unlawful killing of another person, which may be first degree murder, second degree murder, voluntary manslaughter, criminally negligent homicide or vehicular homicide.

Acts 1989, ch. 591, § 1; 1991, ch. 377, § 1; 1995, ch. 460, § 3.

Sentencing Commission Comments.

This section recognizes that homicide may be first degree murder, second degree murder, voluntary manslaughter, criminally negligent homicide or vehicular homicide. Prior categories of homicide are preserved, with the exception of the elimination of “involuntary manslaughter” and its replacement with the new offense of “criminally negligent homicide.”

[Subsection (b) was deleted by 1995 amendment.]

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. Conspiracy to take human life, § 39-12-103.

Prosecutor not required for indictment for homicide, § 40-13-104.

Restoration of voting rights to convicted felons, title 40, ch. 29, part 2.

Use of force defending residence against intruder, § 39-11-611.

Textbooks. Tennessee Jurisprudence, 4 Tenn. Juris., Automobiles, § 33; 14 Tenn. Juris., Homicide, §§ 2, 17.

Law Reviews.

Recent Developments — Tennessee Homicide Law, 60 Tenn. L. Rev. 675 (1993).

39-13-202. First degree murder.

1. First degree murder is:
   1. A premeditated and intentional killing of another;
   2. A killing of another committed in the perpetration of or attempt to perpetrate any first degree murder, act of terrorism, arson, rape, robbery, burglary, theft, kidnapping, physical abuse in violation of § 71-6-119, aggravated neglect of an elderly or vulnerable adult in violation of § 39-15-508, aggravated child abuse, aggravated child neglect, rape of a child, aggravated rape of a child or aircraft piracy; or
   3. A killing of another committed as the result of the unlawful throwing, placing or discharging of a destructive device or bomb.
2. No culpable mental state is required for conviction under subdivision (a)(2) or (a)(3), except the intent to commit the enumerated offenses or acts in those subdivisions.
3. A person convicted of first degree murder shall be punished by:
   1. Death;
   2. Imprisonment for life without possibility of parole; or
   3. Imprisonment for life.
4. As used in subdivision (a)(1), “premeditation” is an act done after the exercise of reflection and judgment. “Premeditation” means that the intent to kill must have been formed prior to the act itself. It is not necessary that the purpose to kill preexist in the mind of the accused for any definite period of time. The mental state of the accused at the time the accused allegedly decided to kill must be carefully considered in order to determine whether the accused was sufficiently free from excitement and passion as to be capable of premeditation.

Acts 1989, ch. 591, § 1; 1990, ch. 1030, § 15; 1991, ch. 377, § 2; 1993, ch. 338, § 1; 1993, ch. 473, § 1; 1994, ch. 883, § 1; 1995, ch. 460, § 1; 1998, ch. 1040, § 3; 2002, ch. 849, § 2a; 2007, ch. 158, § 2; 2018, ch. 1050, § 6.

Compiler's Notes. Acts 1993, ch. 473, § 16 provided that the amendment by that act shall apply to all offenses committed on or after July 1, 1993.

Acts 2018, ch. 1050, § 1 provided that the act, which amended this section, shall be known and may be cited as the “Elderly and Vulnerable Adult Protection Act of 2018.”

Acts 2018, ch. 1050, § 17 provided that the act, which amended this section, shall apply to acts committed on or after January 1, 2019.

Amendments. The 2018 amendment, effective January 1, 2019, inserted “, physical abuse in violation of § 71-6-119, aggravated neglect of an elderly or vulnerable adult in violation of § 39-15-508” in (a)(2).

Effective Dates. Acts 2018, ch. 1050, § 17. January 1, 2019; provided that for purposes of promulgating rules the act took effect May 21, 2018.

Cross-References. Abuse, neglect, or sexual abuse, § 37-5-512.

Airport and aircraft security, § 39-17-109.

Arson, title 39, ch. 14, part 3.

Burglary, title 39, ch. 14, part 4.

Child abuse, title 39, ch. 15, part 4.

Criminal attempt, § 39-12-101.

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

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

Kidnapping, title 39, ch. 13, part 3.

Post-conviction DNA analysis, title 40, ch. 30, part 3.

Robbery, title 39, ch. 13, part 4.

Sexual offenses, title 39, ch. 13, part 5.

Terrorism Prevention and Response Act, title 39, ch. 13, part 8.

Theft, title 39, ch. 14, part 1.

Transfer from juvenile court, sentence of death prohibited, § 37-1-134.

Use of force defending residence against intruder, § 39-11-611.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 4.3, 15.9, 32.30.

Tennessee Jurisprudence, 2 Tenn. Juris, Appeal and Error, §§ 151, 190, 233; 11 Tenn. Juris., Evidence, §§ 80.1, 185; 14 Tenn. Juris., Homicide, §§ 2, 6, 8, 9, 13-17.

Law Reviews.

Adjudicating Claims of Innocence for the Capitally Condemned in Tennessee: Embracing a Truth Forum (Dwight Aarons), 76 Tenn. L. Rev. 511 (2009).

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

Criminal Procedure — Capital Punishment — Motions to Reopen Petitions for Post-Conviction Relief, 81 Tenn. L. Rev. 389 (2014).

Recent Developments — Tennessee Homicide Law, 60 Tenn. L. Rev. 675 (1993).

Tennessee's Death Penalty: An Overview of the Procedural Safeguards, 31 U. Mem. L. Rev. 779 (2001).

The Trexler Saga: Hale & Middlebrooks (Gary R. Wade), 23 Mem. St. U.L. Rev. 319 (1993).

Attorney General Opinions. Constitutionality, OAG 94-31 (3/14/94).

Minimum length of service for life sentences after July 1, 1995, OAG 97-098 (7/1/97).

39-13-203. Intellectually disabled defendants — Death sentence prohibited.

1. As used in this section, “intellectual disability” means:
   1. Significantly subaverage general intellectual functioning as evidenced by a functional intelligence quotient (I.Q.) of seventy (70) or below;
   2. Deficits in adaptive behavior; and
   3. The intellectual disability must have been manifested during the developmental period, or by eighteen (18) years of age.
2. Notwithstanding any law to the contrary, no defendant with intellectual disability at the time of committing first degree murder shall be sentenced to death.
3. The burden of production and persuasion to demonstrate intellectual disability by a preponderance of the evidence is upon the defendant. The determination of whether the defendant had intellectual disability at the time of the offense of first degree murder shall be made by the court.
4. If the court determines that the defendant was a person with intellectual disability at the time of the offense, and if the trier of fact finds the defendant guilty of first degree murder, and if the district attorney general has filed notice of intention to ask for the sentence of imprisonment for life without possibility of parole as provided in § 39-13-208(b), the jury shall fix the punishment in a separate sentencing proceeding to determine whether the defendant shall be sentenced to imprisonment for life without possibility of parole or imprisonment for life. Section 39-13-207 shall govern the sentencing proceeding.
5. If the issue of intellectual disability is raised at trial and the court determines that the defendant is not a person with intellectual disability, the defendant shall be entitled to offer evidence to the trier of fact of diminished intellectual capacity as a mitigating circumstance pursuant to § 39-13-204(j)(8).
6. The determination by the trier of fact that the defendant does not have intellectual disability shall not be appealable by interlocutory appeal, but may be a basis of appeal by either the state or defendant following the sentencing stage of the trial.

Acts 1990, ch. 1038, §§ 1, 2; 1993, ch. 473, § 10; 2010, ch. 734, §§ 1-3.

Compiler's Notes. Acts 1993, ch. 473, § 16 provided that the amendment by that act shall apply to all offenses committed on or after July 1, 1993.

For the Preamble to the act regarding changing the term “mental retardation” to “intellectual disability”, please refer to Acts 2010, ch. 734.

Acts 2010, ch. 734, § 1 provided that the Tennessee code commission is directed to change all references to “mental retardation”, wherever such references appear in titles 33, 39 and 41, to “intellectual disability”, as supplements are issued and volumes are replaced.

Acts 2010, ch. 734, § 7 provided that for purposes of each provision amended by the act, a reference to intellectual disability shall be considered to refer to mental retardation, as defined by that provision on the day before the date of enactment of the act.

Acts 2010, ch. 734, § 8 provided that nothing in the act shall be construed to alter or otherwise affect the eligibility for services or the rights or responsibilities of individuals covered by the provision on the day before the date of enactment of the act.

Cross-References. Burden of proof, title 39, ch. 11, part 2.

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

Mental health and intellectual and developmental disabilities, title 33.

Textbooks. Tennessee Law of Evidence (2nd ed., Cohen, Paine and Sheppeard), §§ 101.1, 802.2.

Law Reviews.

A More Intelligent and Just Atkins: Adjusting for the Flynn Effect in Capital Determinations of Mental Retardation or Intellectual Disability (Geraldine W. Young), 65 Vand. L. Rev. 615 (2012).

Capital Punishment, Cultural Competency, and Litigating Intellectual Disability (Jeffrey Usman), 42 U. Mem. L. Rev. 855 (2012).

Criminal Procedure — Capital Punishment — Motions to Reopen Petitions for Post-Conviction Relief, 81 Tenn. L. Rev. 389 (2014).

Tennessee's Death Penalty: An Overview of the Procedural Safeguards, 31 U. Mem. L. Rev. 779 (2001).

Treated Differently in Life but Not in Death: The Execution of the Intellectually Disabled After Atkins v. Virginia (Penny J. White), 76 Tenn. L. Rev. 685 (2009).

39-13-204. Sentencing for first degree murder.

1. Upon a trial for first degree murder, should the jury find the defendant guilty of first degree murder, it shall not fix punishment as part of the verdict, but the jury shall fix the punishment in a separate sentencing hearing to determine whether the defendant shall be sentenced to death, to imprisonment for life without possibility of parole, or to imprisonment for life. The separate sentencing hearing shall be conducted as soon as practicable before the same jury that determined guilt, subject to the provisions of subsection (k) relating to certain retrials on punishment.
2. In the sentencing proceeding, the attorney for the state shall be allowed to make an opening statement to the jury and then the attorney for the defendant shall also be allowed such statement; provided, that the waiver of opening statement by one party shall not preclude the opening statement by the other party.
3. In the sentencing proceeding, evidence may be presented as to any matter that the court deems relevant to the punishment, and may include, but not be limited to, the nature and circumstances of the crime; the defendant's character, background history, and physical condition; any evidence tending to establish or rebut the aggravating circumstances enumerated in subsection (i); and any evidence tending to establish or rebut any mitigating factors. Any such evidence that the court deems to have probative value on the issue of punishment may be received, regardless of its admissibility under the rules of evidence; provided, that the defendant is accorded a fair opportunity to rebut any hearsay statements so admitted. However, this subsection (c) shall not be construed to authorize the introduction of any evidence secured in violation of the constitution of the United States or the constitution of Tennessee. In all cases where the state relies upon the aggravating factor that the defendant was previously convicted of one (1) or more felonies, other than the present charge, whose statutory elements involve the use of violence to the person, either party shall be permitted to introduce evidence concerning the facts and circumstances of the prior conviction. Such evidence shall not be construed to pose a danger of creating unfair prejudice, confusing the issues, or misleading the jury and shall not be subject to exclusion on the ground that the probative value of the evidence is outweighed by prejudice to either party. Such evidence shall be used by the jury in determining the weight to be accorded the aggravating factor. The court shall permit a member or members, or a representative or representatives of the victim's family to testify at the sentencing hearing about the victim and about the impact of the murder on the family of the victim and other relevant persons. The evidence may be considered by the jury in determining which sentence to impose. The court shall permit members or representatives of the victim's family to attend the trial, and those persons shall not be excluded because the person or persons shall testify during the sentencing proceeding as to the impact of the offense.
4. In the sentencing proceeding, the state shall be allowed to make a closing argument to the jury; and then the attorney for the defendant shall also be allowed such argument, with the state having the right of closing.
5. 1. After closing arguments in the sentencing hearing, the trial judge shall include instructions for the jury to weigh and consider any of the statutory aggravating circumstances set forth in subsection (i), which may be raised by the evidence at either the guilt or sentencing hearing, or both. The trial judge shall also include instructions for the jury to weigh and consider any mitigating circumstances raised by the evidence at either the guilt or sentencing hearing, or both, which shall include, but not be limited to, those circumstances set forth in subsection (j). These instructions and the manner of arriving at a sentence shall be given in the oral charge and in writing to the jury for its deliberations. However, a reviewing court shall not set aside a sentence of death or of imprisonment for life without the possibility of parole on the ground that the trial court did not specifically instruct the jury as to a requested mitigating factor that is not enumerated in subsection (j).
   2. The trial judge shall provide the jury three (3) separate verdict forms, as specified by subdivisions (f)(1), (f)(2), and (g)(2)(B). The jury shall be instructed that a defendant who receives a sentence of imprisonment for life shall not be eligible for parole consideration until the defendant has served at least twenty-five (25) full calendar years of the sentence. The jury shall also be instructed that a defendant who receives a sentence of imprisonment for life without possibility of parole shall never be eligible for release on parole.
6. 1. If the jury unanimously determines that no statutory aggravating circumstance has been proven by the state beyond a reasonable doubt, the sentence shall be imprisonment for life. The jury shall then return its verdict to the judge upon a form provided by the court, which may appear substantially as follows:

      PUNISHMENT OF IMPRISONMENT FOR LIFE

      We, the jury, unanimously determine that no statutory aggravating circumstance has been proven by the state beyond a reasonable doubt. We, the jury, therefore find that the sentence shall be imprisonment for life.

      /s/ /s/ Jury Foreperson Juror /s/ /s/ Juror Juror /s/ /s/ Juror Juror /s/ /s/ Juror Juror /s/ /s/ Juror Juror /s/ /s/ Juror Juror

      Click to view table.

   2. If the jury unanimously determines that a statutory aggravating circumstance or circumstances have been proven by the state beyond a reasonable doubt, but that such circumstance or circumstances have not been proven by the state to outweigh any mitigating circumstance or circumstances beyond a reasonable doubt, the jury shall, in its considered discretion, sentence the defendant either to imprisonment for life without possibility of parole or to imprisonment for life. The trial judge shall instruct the jury that, in choosing between the sentences of imprisonment for life without possibility of parole and imprisonment for life, the jury shall weigh and consider the statutory aggravating circumstance or circumstances proven by the state beyond a reasonable doubt and any mitigating circumstance or circumstances. In its verdict, the jury shall specify the statutory aggravating circumstance or circumstances proven by the state beyond a reasonable doubt and shall return its verdict to the judge upon a form provided by the court, which may appear substantially as follows:

      PUNISHMENT OF IMPRISONMENT FOR LIFE WITHOUT POSSIBILITY OF PAROLE OR IMPRISONMENT FOR LIFE

      We, the jury, unanimously find that the state has proven the following listed statutory aggravating circumstance or circumstances beyond a reasonable doubt:

      [Here list the statutory aggravating circumstance or circumstances so found.]

      We, the jury, unanimously find that such statutory aggravating circumstance or circumstances do not outweigh any mitigating circumstance or circumstances beyond a reasonable doubt; therefore:

      CHECK ONE (1) BOX ONLY

      [ ] We, the jury, unanimously agree that the defendant shall be sentenced to imprisonment for life without possibility of parole; or

      [ ] We, the jury, unanimously agree that the defendant shall be sentenced to imprisonment for life.

      /s/ /s/ Jury Foreperson Juror /s/ /s/ Juror Juror /s/ /s/ Juror Juror /s/ /s/ Juror Juror /s/ /s/ Juror Juror /s/ /s/ Juror Juror

      Click to view table.

7. 1. The sentence shall be death, if the jury unanimously determines that:
      1. At least one (1) statutory aggravating circumstance or several statutory aggravating circumstances have been proven by the state beyond a reasonable doubt; and
      2. Such circumstance or circumstances have been proven by the state to outweigh any mitigating circumstances beyond a reasonable doubt.
   2. 1. If the death penalty is the sentence of the jury, the jury shall:
         1. Reduce to writing the statutory aggravating circumstance or statutory aggravating circumstances so found; and
         2. Signify that the state has proven beyond a reasonable doubt that the statutory aggravating circumstance or circumstances outweigh any mitigating circumstances.
      2. These findings and verdict shall be returned to the judge upon a form provided by the court, which may appear substantially as follows:

         PUNISHMENT OF DEATH

         We, the jury, unanimously find the following listed statutory aggravating circumstance or circumstances:

         [Here list the statutory aggravating circumstance or circumstances so found.]

         We, the jury, unanimously find that the state has proven beyond a reasonable doubt that the statutory aggravating circumstance or circumstances outweigh any mitigating circumstances.

         Therefore, we, the jury, unanimously find that the punishment shall be death.

         /s/ /s/ Jury Foreperson Juror /s/ /s/ Juror Juror /s/ /s/ Juror Juror /s/ /s/ Juror Juror /s/ /s/ Juror Juror /s/ /s/ Juror Juror

         Click to view table.

8. If the jury cannot ultimately agree on punishment, the trial judge shall inquire of the foreperson of the jury whether the jury is divided over imposing a sentence of death. If the jury is divided over imposing a sentence of death, the judge shall instruct the jury that in further deliberations, the jury shall only consider the sentences of imprisonment for life without possibility of parole and imprisonment for life. If, after further deliberations, the jury still cannot agree as to sentence, the trial judge shall dismiss the jury and the judge shall impose a sentence of imprisonment for life. The judge shall not instruct the jury, nor shall the attorneys be permitted to comment at any time to the jury, on the effect of the jury's failure to agree on a punishment.
9. No death penalty or sentence of imprisonment for life without possibility of parole shall be imposed, except upon a unanimous finding that the state has proven beyond a reasonable doubt the existence of one (1) or more of the statutory aggravating circumstances, which are limited to the following:
   1. The murder was committed against a person less than twelve (12) years of age and the defendant was eighteen (18) years of age or older;
   2. The defendant was previously convicted of one (1) or more felonies, other than the present charge, whose statutory elements involve the use of violence to the person;
   3. The defendant knowingly created a great risk of death to two (2) or more persons, other than the victim murdered, during the act of murder;
   4. The defendant committed the murder for remuneration or the promise of remuneration, or employed another to commit the murder for remuneration or the promise of remuneration;
   5. The murder was especially heinous, atrocious, or cruel, in that it involved torture or serious physical abuse beyond that necessary to produce death;
   6. The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another;
   7. The murder was knowingly committed, solicited, directed, or aided by the defendant, while the defendant had a substantial role in committing or attempting to commit, or was fleeing after having a substantial role in committing or attempting to commit, any first degree murder, arson, rape, robbery, burglary, theft, kidnapping, aggravated child abuse, aggravated child neglect, rape of a child, aggravated rape of a child, aircraft piracy, or unlawful throwing, placing or discharging of a destructive device or bomb;
   8. The murder was committed by the defendant while the defendant was in lawful custody or in a place of lawful confinement or during the defendant's escape from lawful custody or from a place of lawful confinement;
   9. The murder was committed against any law enforcement officer, corrections official, corrections employee, probation and parole officer, emergency medical or rescue worker, emergency medical technician, paramedic or firefighter, who was engaged in the performance of official duties, and the defendant knew or reasonably should have known that the victim was a law enforcement officer, corrections official, corrections employee, probation and parole officer, emergency medical or rescue worker, emergency medical technician, paramedic or firefighter engaged in the performance of official duties;
   10. The murder was committed against any present or former judge, district attorney general or state attorney general, assistant district attorney general or assistant state attorney general, due to or because of the exercise of the victim's official duty or status and the defendant knew that the victim occupied such office;
   11. The murder was committed against a national, state, or local popularly elected official, due to or because of the official's lawful duties or status, and the defendant knew that the victim was such an official;
   12. The defendant committed “mass murder,” which is defined as the murder of three (3) or more persons, whether committed during a single criminal episode or at different times within a forty-eight-month period;
   13. The defendant knowingly mutilated the body of the victim after death;
   14. The victim of the murder was seventy (70) years of age or older; or the victim of the murder was particularly vulnerable due to a significant disability, whether mental or physical, and at the time of the murder the defendant knew or reasonably should have known of such disability;
   15. The murder was committed in the course of an act of terrorism;
   16. The murder was committed against a pregnant woman, and the defendant intentionally killed the victim, knowing that she was pregnant;
   17. The murder was committed at random and the reasons for the killing are not obvious or easily understood; or
   18. The defendant knowingly sold or distributed a substance containing fentanyl, carfentanil, or any other opiate listed in § 39-17-408(c) with the intent and premeditation to commit murder.
10. In arriving at the punishment, the jury shall consider, pursuant to this section, any mitigating circumstances, which shall include, but are not limited to, the following:
    1. The defendant has no significant history of prior criminal activity;
    2. The murder was committed while the defendant was under the influence of extreme mental or emotional disturbance;
    3. The victim was a participant in the defendant's conduct or consented to the act;
    4. The murder was committed under circumstances that the defendant reasonably believed to provide a moral justification for the defendant's conduct;
    5. The defendant was an accomplice in the murder committed by another person and the defendant's participation was relatively minor;
    6. The defendant acted under extreme duress or under the substantial domination of another person;
    7. The youth or advanced age of the defendant at the time of the crime;
    8. The capacity of the defendant to appreciate the wrongfulness of the defendant's conduct or to conform the defendant's conduct to the requirements of the law was substantially impaired as a result of mental disease or defect or intoxication, which was insufficient to establish a defense to the crime but which substantially affected the defendant's judgment; and
    9. Any other mitigating factor that is raised by the evidence produced by either the prosecution or defense, at either the guilt or sentencing hearing.
11. Upon motion for a new trial, after a conviction of first degree murder, if the court finds error in the trial determining guilt, a new trial on both guilt and sentencing shall be held; but if the court finds error alone in the trial determining punishment, a new trial on the issue of punishment alone shall be held by a new jury empanelled for that purpose. If the trial court, or any other court with jurisdiction to do so, orders that a defendant convicted of first degree murder, whether the sentence is death, imprisonment for life without possibility of parole or imprisonment for life, be granted a new trial, either as to guilt or punishment, or both, the new trial shall include the possible punishments of death, imprisonment for life without possibility of parole or imprisonment for life.

Acts 1989, ch. 591, § 1; T.C.A., § 39-13-203; Acts 1990, ch. 1038, § 3; 1993, ch. 473, §§ 2, 4-6, 13, 14; 1995, ch. 356, § 1; 1995, ch. 377, § 1; 1996, ch. 830, § 2; 1997, ch. 139, § 1; 1997, ch. 358, § 1; 1997, ch. 491, § 1; 1998, ch. 712, § 1; 1998, ch. 915, § 1; 1998, ch. 916, § 1; 1999, ch. 504, § 1; 2002, ch. 849, § 2b; 2008, ch. 829, § 1; 2009, ch. 582, § 1; 2010, ch. 1058, § 1; 2011, ch. 47, § 30; 2011, ch. 489, § 1; 2019, ch. 231, § 1.

Sentencing Commission Comments.

This section closely parallels prior law concerning imposition of the death penalty. One change, which is constitutionally required, is the language appearing at the end of subsection (j), providing that the mitigating circumstances shall include “any other mitigating factor which is raised by the evidence produced by either the prosecution or defense at either the guilt or sentencing hearing” (subdivision (j)(9)).

In 1993, life without the possibility of parole was added to the sentencing options of death and life imprisonment. Under this new sentencing procedure, the jury must unanimously determine that a statutory aggravating circumstance or circumstances outweigh a mitigating circumstance or circumstances beyond a reasonable doubt in order to impose the death sentence. See State v. Hartman, 703 S.W.2d 106 (Tenn. 1985), cert. denied, 478 U.S. 1010, 106 S. Ct. 3308, 92 L. Ed. 2d 721 (1986). If the aggravating circumstance or circumstances are found to have been proven beyond a reasonable doubt, but they have not been proven to outweigh the mitigating circumstances beyond a reasonable doubt, the jury may sentence the defendant to either life imprisonment or life without parole, in its discretion. If the jury finds that no aggravating circumstances have been proven beyond a reasonable doubt, the sentence must be life imprisonment.

Under subdivision (e), the judge must instruct the jury that imprisonment for life means that the defendant will not be eligible for parole consideration until service of at least twenty-five (25) calendar years, and that life without the possibility of parole means that the defendant will never be released on parole.

Compiler's Notes. Former § 39-13-204, concerning waiver of jury in first degree murder trials, was transferred to § 39-13-205 in 1990.

Acts 1993, ch. 473, § 16 provided that the amendments by that act shall apply to all offenses committed on or after July 1, 1993.

Acts 1995, ch. 356, § 2 provided that the amendments by that act shall apply to the sentencing of all persons committing the offense of first degree murder on or after July 1, 1995.

Acts 1995, ch. 377, § 2 provided that the amendment by that act applies to offenses committed on or after May 30, 1995.

Acts 1998, ch. 712, § 2, concerning aggravating circumstance, was added as subdivision (i)(14) and shall be known as “Lottie's Law.”

Acts 2011, ch. 47, § 107 provided that nothing in the legislation shall be construed to alter or otherwise affect the eligibility for services or the rights or responsibilities of individuals covered by the provision on the day before the date of enactment of this legislation, which was July 1, 2011.

Acts 2011, ch. 47, § 108 provided that the provisions of the act are declared to be remedial in nature and all provisions of the act shall be liberally construed to effectuate its purposes.

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

Amendments. The 2019 amendment added (i)(18).

Effective Dates. Acts 2019, ch. 231, § 2. July 1, 2019.

Cross-References. Abuse, neglect, or sexual abuse, § 37-5-512.

Airport and aircraft security, § 39-17-109.

Arson, title 39, ch. 14, part 3.

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

Burglary, title 39, ch. 14, part 4.

Criminal attempt, § 39-12-101.

Criminal conspiracy, § 39-12-103.

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

Enhancement factors, § 40-35-114.

First degree murder, § 39-13-202.

Kidnapping, title 39, ch. 13, part 3.

Mitigating factors, § 40-35-113.

Robbery, title 39, ch. 13, part 4.

Terrorism Prevention and Response Act, title 39, ch. 13, part 8.

Theft, title 39, ch. 14, part 1.

Rule Reference. This section is referred to in Rule 17 of the Rules of the Supreme Court of Tennessee.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 15.9, 15.10, 25.3, 26.30, 26.47, 28.60, 28.92, 28.113, 32.11, 32.31, 32.32, 32.34-32.43, 32.45-32.48.

Tennessee Jurisprudence, 8 Tenn. Juris., Criminal Procedure, §§ 46, 49; 14 Tenn. Juris., Homicide, §§ 4, 59; 14 Tenn. Juris., Indictments, Informations and Presentments, § 19; 15 Tenn. Juris., Instructions, § 15; 24 Tenn. Juris., Verdict, § 12.

Tennessee Law of Evidence (2nd ed., Cohen, Paine and Sheppeard), Rule 101.

Law Reviews.

A Survey of Tennessee Supreme Court Death Penalty Cases in the 1990s (Penny J. White), 61 Tenn. L. Rev. 733 (1994).

Adjudicating Claims of Innocence for the Capitally Condemned in Tennessee: Embracing a Truth Forum (Dwight Aarons), 76 Tenn. L. Rev. 511 (2009).

Breaking the Frame: Responding to Gang Stereotyping in Capital Cases (John M. Hagedorn, Ph.D.and Bradley A. MacLean, Esq.), 42 U. Mem. L. Rev. 1027  (2012).

Capital Prejudice (J. Richard Broughton), 43 U. Mem. L. Rev. 135 (2012).

Capital Punishment and the Marshall Hypothesis: Reforming a Broken System of Punishment, 80 Tenn. L. Rev. 411 (2013).

Casenote: Criminal Procedure — Capital Punishment — Motions to Reopen Petitions for Post-Conviction Relief, 81 Tenn. L. Rev. 389 (2014).

Inequalities in Capital Punishment in Tennessee Based on Race: An Analytical Study of Aggravating and Mitigating Factors in Death Penalty Cases, 31 U. Mem. L. Rev. 823 (2001).

Pretend Justice–Defense Representation in Tennessee Death Penalty Cases, (William P. Redick, Jr., Bradley A. Maclean, and M. Shane Truett), 38 U. Mem. L. Rev. 303 (2008).

Tennessee's Death Penalty: An Overview of the Procedural Safeguards, 31 U. Mem. L. Rev. 779 (2001).

The Competency Conundrum: Problems Courts Have Faced in Applying Different Standards for Competency to be Executed, 54 Vand. L. Rev. 2441 (2001).

The Constitutionality of the “Heinous, Atrocious, or Cruel” Aggravating Circumstance in Death Penalty Cases and its Interpretation by Tennessee Courts, 31 U. Mem. L. Rev. 939 (2001).

The Crisis in Representation of Tennessee Capital Cases (William P. Redick Jr.), 29 No. 2 Tenn. B.J. 22 (1993).

The Limited Diagnosticity of Criminal Trials (Dan Simon), 64 Vand. L. Rev. 143 (2011).

The Marshall Hypothesis and the Rise of Anti-Death Penalty Judges, 80 Tenn. L. Rev. 381 (2013).

The Trexler Saga: Hale & Middlebrooks (Gary R. Wade), 23 Mem. St. U.L. Rev. 319 (1993).

The Troubling Influence of Equality in Constitutional Criminal Procedure: From Brown to Miranda, Furman and Beyond, 54 Vand. L. Rev. 359 (2001).

Theology in the Jury Room: Religious Discussion as “Extra Material” in the Course of Capital Punishment Deliberations, 55 Vand. L. Rev. 127 (2002).

To Kill for a Mocking Word? Richard Lloyd Odom's crimes led him to murder trials in two states (Howard H. Vogel), 37 No. 6 Tenn. B.J. 25 (2001).

Tennessee’s Death Penalty Lottery, 13 Tenn. J. L. & Pol’y 85 (2018).

Attorney General Opinions. Constitutionality of proposed aggravating circumstance of handicapped victim, OAG 97-078 (5/21/97).

Jury instructions on non-statutory mitigating circumstances in capital cases. OAG 97-081 (5/21/97).