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State v. Watkins

Court of Criminal Appeals of Tennessee, Jackson

April 5, 2017

STATE OF TENNESSEE
v.
GEORGE P. WATKINS, III

          Session August 2, 2016

         Appeal from the Circuit Court for Madison County No. 15-236 Donald H. Allen, Judge.

         The Defendant-Appellant, George P. Watkins, III, was convicted by a Madison County Circuit Court jury of one count of possession of marijuana with intent to sell (Count 1), one count of possession of marijuana with intent to deliver (Count 2), one count of possession of drug paraphernalia (Count 3), and two counts of possession of a firearm with the intent to go armed during the commission of a dangerous felony (Counts 4 and 5). See T.C.A. §§ 39-17-417(a), -425, -1324(a). The trial court, after merging Count 2 with Count 1 and Count 5 with Count 4, sentenced Watkins to two years at thirty percent for the possession of marijuana with intent to sell conviction, eleven months and twenty-nine days for the possession of drug paraphernalia conviction, and three years at one hundred percent for the firearm conviction. The court then ordered the sentences for the marijuana and drug paraphernalia convictions served concurrently and ordered the sentence for the firearm conviction served consecutively to the other sentences in accordance with Code section 39-17-1324(e), for an effective sentence of five years. On appeal, Watkins argues that (1) the trial court committed plain error when it instructed the jury on the mental states of "knowingly" and "recklessly" for the offenses of possession of a firearm with the intent to go armed during the commission of a dangerous felony, and (2) the evidence is insufficient to sustain his firearm convictions. Because the erroneous jury instruction for the firearm offenses constitutes plain error, we reverse and vacate the judgments in Counts 4 and 5 and remand the case for a new trial on these counts. We also remand the case for entry of corrected judgments in Counts 1 and 2.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed in Part, Reversed in Part, and Remanded.

          J. Colin Morris, Jackson, Tennessee, for the Defendant-Appellant, George P. Watkins, III.

          Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Aaron J. Chaplin, Assistant District Attorney General, for the appellee, State of Tennessee.

          Camille R. McMullen, J., delivered the opinion of the court, in which John Everett Williams, J., joined. Robert L. Holloway, Jr., J., filed a dissenting opinion.

          OPINION

          CAMILLE R. MCMULLEN, JUDGE.

         We will briefly summarize the facts presented at trial because they relate to both issues raised on appeal.

         Trial.

         On the morning of June 13, 2014, Investigator Tikal Greer executed a search warrant at Watkins's home located at 1711 North Royal Street, Jackson, Tennessee. Officers subsequently discovered the following items inside the residence: three bags of marijuana; a .357 Magnum revolver; several types of ammunition, including .38 Special ammunition capable of being fired by a .357 Magnum revolver; and two digital scales. The marijuana, one of the digital scales, all of the ammunition, and the revolver were found in Watkins's bedroom. The revolver, which was loaded, was found under the mattress of Watkins's bed near the nightstand. One bag of marijuana was on the nightstand by the bed, another bag of marijuana was on top of the dresser beside a digital scale, and a third, larger bag of marijuana was in the bottom drawer of the dresser. A second digital scale was found in the dining room of Watkins's home.

         Investigator Greer stated that digital scales were often used to weigh marijuana to determine how much an individual was buying or selling. He noted the open container of plastic sandwich bags found by Watkins's nightstand and asserted that such bags were often used for packaging marijuana. In addition, the total amount of marijuana, which was determined to be 45.32 grams, indicated that the marijuana was for sale or delivery. Investigator Greer and Lieutenant Rodney Anderson said the presence of the loaded revolver suggested that its purpose was for the protection of the drugs, the money, and the home. Surveillance conducted prior to the execution of the search warrant established that Watkins lived at the residence at 1711 North Royal Street. At the time the warrant was executed, the utilities were in Watkins's name, there was mail addressed to Watkins, a paystub belonging to Watkins, and photographs of Watkins discovered in the master bedroom where the marijuana was found. Investigator Greer acknowledged that Watkins was employed at Chick-Fil-A and as a mall security officer around the time that he investigated this case.

         Immediately after the execution of the search warrant, Investigator Nathaniel Shoate went to Chick-Fil-A, where Watkins was employed, and arrested him. He searched Watkins incident to the arrest and found a cell phone and $800 to $900 in cash on his person. Later that day, Investigator Shoate and Investigator Gerard Cobb interviewed Watkins after advising him of his rights. Watkins subsequently signed a waiver of his rights and provided a written statement admitting that the marijuana and the handgun belonged to him.

         ANALYSIS

         I. Jury Instruction. Watkins argues that the trial court committed plain error when it instructed the jury on the culpable mental states of "knowingly" and "recklessly" for the offenses of possession of a firearm with the intent to go armed during the commission of a dangerous felony. Citing State v. Tasha Briggs, No. W2014-01214-CCA-R3-CD, 2015 WL 5813664 (Tenn. Crim. App. Oct. 6, 2015), he asserts that his case should be reversed and remanded for a new trial on the firearm counts. We conclude that Watkins is entitled to plain error relief because the jury instruction given at trial lowered the State's burden of proof for the firearm offense.

         At the conclusion of the proof, the trial court provided the following jury instruction for the firearm offenses:

         COUNTS 4 AND 5

         UNLAWFUL POSSESSION OF A FIREARM DURING THE COMMISSION OF OR ATTEMPT TO COMMIT A DANGEROUS FELONY

Any person who possesses a firearm during the commission of or attempt to commit a dangerous felony is guilty of a crime.
For you to find the defendant guilty of this offense, the state must have proven beyond a reasonable doubt the existence of the following essential elements:
(1) that the defendant possessed a firearm;
and
(2) that the possession was with the intent to go armed was [sic] during the commission of or attempt to commit a dangerous felony is guilty of a crime [sic], to wit: Possession of Marijuana With the Intent to Sell and/or Deliver;
and
(3) that the defendant acted either intentionally, knowingly or recklessly.
"Possession" may be actual or constructive. A person who knowingly had direct physical control over an object at a given time is then in actual possession of it. A person who, although not in actual possession, knowingly had both the power and intention at any given time to exercise dominion and control over an object is then in constructive possession of it.
"Possession" may also be sole or joint. If a person has actual or constructive possession of a thing, possession is sole. I[f] two (2) or more persons have actual or constructive possession of a thing, then possession is joint.
"Firearm" means any weapon designed, made or adapted to expel a projectile by the action of an explosive or any device readily convertible to that use.
"Intentionally" means that a person acts intentionally with respect to the nature of the conduct or to a result of the conduct when it is the person's conscious objective or desire to engage in the conduct or cause the result.
"Knowingly" means that a person acts knowingly with respect to the conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist. A person acts knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result.
"Recklessly" means that a person acts recklessly with respect to the circumstances surrounding the conduct or the result of the conduct when the person is aware of, but consciously disregards, a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care than an ordinary person would exercise under all the circumstances as viewed from the accused person's standpoint.

         Interestingly, the jury instruction given in Watkins's case does not substantially follow the pattern jury instruction for possession of a firearm with the intent to go armed during the commission of a dangerous felony that was in effect at the time of the offense. See 7 Tenn. Prac. Pattern Jury Instr. T.P.I.-Crim. 36.06(c) (18th ed. 2014). First, it omits the language "with the intent to go armed" that should be in the first paragraph of the instruction. See id. Second, it includes the language "that the defendant acted either intentionally, knowingly or recklessly, " which is not a part of the pattern instruction for the offense of possession of a firearm but is a part of the pattern instruction for the offense of employment of a firearm during the commission of or attempt to commit a dangerous felony. See id.; see also T.C.A. § 39-17-1324(b)(1), (2). Third, while the trial court's instruction includes the definition for "intentionally" that is applicable to both the possession of a firearm and employment of a firearm offenses, the instruction given in Watkins's case also included the definitions for "knowingly" and "recklessly, " which are bracketed and contain optional language according to the preface for the pattern jury instructions. See T.P.I.-Crim. 36.06(c), Preface.

         Here, Watkins concedes that he did not object to the jury instruction for the firearm offenses at trial and acknowledges that he did not include this issue in his motion for new trial. See Tenn. R. App. P. 3(e); Tenn. R. App. P. 36(a). Rather, he contends, in an argument section consisting of less than a single page, [1] that this erroneous jury instruction amounted to plain error, though he fails to provide an analysis of the five factors required for plain error review.

         We recognize that Watkins has waived this issue, absent plain error. The plain error doctrine states that "[w]hen necessary to do substantial justice, an appellate court may consider an error that has affected the substantial rights of a party at any time, even though the error was not raised in the motion for a new trial or assigned as error on appeal." Tenn. R. App. P. 36(b). In order for this court to find plain error,

"(a) the record must clearly establish what occurred in the trial court; (b) a clear and unequivocal rule of law must have been breached; (c) a substantial right of the accused must have been adversely affected; (d) the accused did not waive the issue for tactical reasons; and (e) consideration of the error is 'necessary to do substantial justice.'"

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994)). "[P]lain error must be of such a great magnitude that it probably changed the outcome of the trial." Adkisson, 899 S.W.2d at 642 (internal quotations marks omitted). "It is the accused's burden to persuade an appellate court that the trial court committed plain error." State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007) (citing United States v. Olano, 507 U.S. 725, 734 (1993)). "[T]he presence of all five factors must be established by the record before this Court will recognize the existence of plain error, and complete consideration of all the factors is not necessary when it is clear from the record that at least one of the factors cannot be established." Smith, 24 S.W.3d at 283. A recognition of plain error "should be limited to errors that had an unfair prejudicial impact which undermined the fundamental fairness of the trial." Adkisson, 899 S.W.2d at 642. We must now consider each of the five factors in determining whether Watkins is entitled to plain error relief.

         1. The record must clearly establish what occurred in the trial court.

         Here, the State, in its brief filed July 13, 2016, argues that the record does not clearly establish what happened in the trial court because Watkins failed to include the jury instructions in the appellate record. However, the record in this case was supplemented to include the jury instructions on May 19, 2016. The record herein includes the indictment, the transcript of the testimony presented at trial, the exhibits, the transcript of the hearings that took place out of the jury's presence, the copy of the jury instructions provided in this case that were signed by the trial judge, and the verdict forms. Therefore, as to this issue, the record clearly shows what occurred in the trial court.

         2. A clear and unequivocal rule of law must have been breached.

         Regarding the two firearm counts, the State was required to prove beyond a reasonable doubt that Watkins "possess[ed] a firearm with the intent to go armed during the commission of or attempt to commit a dangerous felony." T.C.A. § 39-17-1324(a). In State v. Fayne, 451 S.W.3d 362, 369 (Tenn. 2014), the Tennessee Supreme Court, in determining whether the possession offense was a lesser included offense of the employment offense, held that the three elements of possession of a firearm during the commission of a dangerous felony were the following: "(1) that the defendant possessed a firearm; (2) that the possession was with the 'intent to go armed'; and (3) that the first two elements occurred during the commission or attempted commission of a 'dangerous felony.'" The Fayne court then held that "the mens rea element of section 39-17-1324(a)" was "that the possession of the firearm was with the 'intent to go armed.'" Id. at 370.

         Moreover, in Tasha Briggs, 2015 WL 5813664, at *3, filed approximately one year after Fayne, the defendant argued that the trial court erroneously instructed the jury that the offense of possession of a firearm with the intent to go armed during the commission of a dangerous felony could be committed if she acted intentionally, knowingly, or recklessly because the statute for this offense specified that she had to act intentionally. The defendant claimed that the court's instruction to the jury on the additional mental states of "knowingly" and "recklessly" lowered the State's burden of proof for this offense. Id. While the defendant agreed that the Tennessee Pattern Jury Instruction for employing a firearm during the commission of a dangerous felony included language that a defendant "acted either intentionally, knowingly, or recklessly, " she asserted that the pattern jury instruction for possession of a firearm during the commission of a dangerous felony omitted that language. Id. at *4 (citing 7 Tenn. Prac. Pattern Jury Instr. T.P.I.-Crim. 36.06(c)). The State, citing Tennessee Pattern Jury Instructions 36.03(a), 36.04, and 36.08, [2] argued that the pattern instructions for other offenses involving possession of a weapon with the intent to go armed included language that the defendant "acted either intentionally, knowingly, or recklessly." Id. However, the State acknowledged that footnote 2 of the pattern instructions for 36.03(a), 36.04, and 36.08 stated the following: "[T]he Tennessee Criminal Pattern Jury Instructions Committee is of the opinion that the definitions of 'knowingly' and 'recklessly, ' 'although statutorily required, ' are in conflict with the elements of the offense and that some judges believe only 'intentionally' should be instructed."[3] Id. at *4 n.3. In determining whether the instruction was reversible error, the court referenced the holding in Fayne that the mens rea element for this offense was that "the possession of the firearm was with the 'intent to go armed.'" Id. at *4; see Fayne, 451 S.W.3d at 370. After recognizing that this offense contained only one mental state, the court held that the trial court erred in instructing the jury that the defendant could be guilty of possessing a firearm with the intent to go armed during the commission of a dangerous felony if it found that the defendant acted knowingly or recklessly. Tasha Briggs, 2015 WL 5813664, at *4. The court also held that this error was not harmless because the jury instruction lessened the State's burden of proof for this offense. Id. at *5. Consequently, the court remanded the case for a new trial on the firearm charge. Id.

         Even more recently, in State v. Anthony Miller, No. W2016-00402-CCA-R3-CD, 2017 WL 244115, at *4 (Tenn. Crim. App. Jan. 20, 2017), this court reiterated that "[Tennessee Code Annotated section 39-17-1324(a)] contains only one possible mental state, that the Defendant possessed the firearms intentionally." It held that the instruction in this case, like the one in Tasha Briggs, was erroneous because it allowed the jury to convict the defendant if he acted knowingly or recklessly. Id. It also held that this error was not harmless because it lessened the State's burden of proof. In considering this issue, it recognized that the defendant's testimony suggested that his possession of the firearm might have been done recklessly or knowingly. Id After concluding that the instruction amounted to plain error, this court remanded the case for a new trial on the unlawful possession of a firearm charge. Id.

         In Fayne, 451 S.W.3d at 370, the Tennessee Supreme Court clarified a rule of law when it concluded that "the mens rea element of section 39-17-1324(a)" was "that the possession of the firearm was with the 'intent to go armed.'" This holding was repeated in the unpublished cases of Tasha Briggs, 2015 WL 5813664, at *4-5, and Anthony Miller, 2017 WL 244115, at *4. Because the trial court erroneously instructed the jury that Watkins could be guilty of possessing a firearm with the intent to go armed during the commission of the drug ...


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