Assigned on Briefs January 18, 2017 at Knoxville
from the Circuit Court for Madison County No. C-13-82 Kyle C.
Petitioner, Tehren Wilson, appeals as of right from the
denial of his petition for post-conviction relief. On appeal,
the Petitioner contends that he received ineffective
assistance of counsel based on trial counsel's failure to
file a written request for a jury charge on fraudulent use of
a credit card as a lesser-included offense of identity theft.
Following our review, we affirm the judgment of the
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Colin Morris, Jackson, Tennessee, for the appellant, Tehren
Herbert H. Slatery III, Attorney General and Reporter;
Zachary T. Hinkle, Assistant Attorney General; James G.
Woodall, District Attorney General; and Benjamin C. Mayo,
Assistant District Attorney General, for the appellee, State
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which James Curwood Witt, Jr. and Robert H. Montgomery, Jr.,
KELLY THOMAS, JR., JUDGE
Petitioner was indicted for burglary of a vehicle, theft of
property valued at $500 or less, and identity theft.
State v. Tehren Carthel Wilson, No. W2010-02613-
CCA-R3-CD, 2012 WL 12931582 (Tenn. Crim. App. May 11, 2012),
perm. app. denied (Tenn. Sept. 20, 2012). At the
beginning of his trial, the Petitioner requested that the
court instruct the jury that a lesser-included offense of
identity theft was fraudulent use of a credit card; however,
the court found that fraudulent use of a credit card was not
a lesser-included offense of identity theft and refused to
give the jury instruction. Id. at *4. Following the
jury trial, the Petitioner was acquitted of the burglary of a
vehicle charge, but he was convicted of the theft of property
valued at $500 or less and identity theft. Id. at
*2. The trial court imposed an effective sentence of
twelve-years, eleven-months, and twenty-nine days to be
served in the Tennessee Department of Correction.
Id. at *1.
direct appeal, the Petitioner challenged the sufficiency of
the evidence supporting his convictions and the failure of
the trial court to instruct the jury on fraudulent use of a
credit card as a lesser-included offense of identity theft.
Wilson, at *1. In its opinion affirming the
Petitioner's conviction, this court summarized the facts
of this case as follows:
At the beginning of trial, prior to the selection of the
jury, the trial court discussed preliminary matters with the
attorneys, including proposed jury instructions. The court
noted that there was a question as to whether fraudulent use
of credit card was a lesser-included offense of identity
theft. The State argued that it was not a lesser-included
offense, and the [Petitioner] took the opposite position and
asked the court to give the charge. The court ultimately
decided that it would not charge fraudulent use of a credit
card as a lesser-included offense of identity theft. The
[Petitioner] raised the issue in his motion for a new trial,
which was denied by the trial court. The trial court found
that the [Petitioner] waived the issue for failing to file a
written request for the instruction and, alternatively, that
fraudulent use of a credit card is not a lesser-included
offense of identity theft.
Id. at *4.
court then reviewed the Petitioner's assertion that
fraudulent use of a credit card was a lesser-included offense
of identity theft under the test in State v. Burns,
6 S.W.3d 453 (Tenn. 1999). This court explained that under