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Wilson v. State

Court of Criminal Appeals of Tennessee, Jackson

March 17, 2017

TEHREN WILSON
v.
STATE OF TENNESSEE

          Assigned on Briefs January 18, 2017 at Knoxville

         Appeal from the Circuit Court for Madison County No. C-13-82 Kyle C. Atkins, Judge[1]

         The 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 post-conviction court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          J. Colin Morris, Jackson, Tennessee, for the appellant, Tehren Wilson.

          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 of Tennessee.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr. and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          D. KELLY THOMAS, JR., JUDGE

         FACTUAL BACKGROUND

         The 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.

         On 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.

         This 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 ...


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