State of Tennessee v. Deanty Montgomery

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs February 19, 2015

STATE OF TENNESSEE v. DEANTY MONTGOMERY

Appeal from the Criminal Court for Knox County
No. 100682 Steven W. Sword, Judge

No. E2014-01014-CCA-R3-CD – Filed May 28, 2015

The Defendant, Deanty Montgomery, appeals as of right from his jury convictions for
aggravated assault, unlawful possession of a weapon, and misdemeanor reckless
endangerment, which resulted in an effective five-year sentence. On appeal, the
Defendant raises the following issues for our review: (1) whether the trial court properly
permitted the State‘s argument that the Defendant was engaged in unlawful activity and
was, therefore, not excused from the duty to retreat under a theory of self-defense; (2)
whether the trial court committed error during jury deliberations in its response to a
question from the jury about a person‘s duty to retreat when engaged in an unlawful
activity; and (3) whether the evidence is sufficient to support his convictions. Following
our review, we affirm the trial court‘s judgments.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which NORMA MCGEE
OGLE, and ROBERT H. MONTGOMERY, JR., JJ., joined.

Patrick T. Phillips, Knoxville, Tennesee, for the Appellant, Deanty Montgomery.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;
Randall E. Nichols, District Attorney General; and TaKisha M. Fitzgerald, Assistant
District Attorney General, for the Appellee, State of Tennessee.

OPINION
FACTUAL BACKGROUND

This case arises out of a June 9, 2012 confrontation between the Defendant and
Maurice Davis (―the victim‖) in front of the Walter P. Taylor Homes‘ market in
Knoxville, which resulted in the Defendant‘s shooting the victim multiple times.
Thereafter, on November 27, 2012, a Knox County grand jury charged the Defendant in a
five-count indictment with the following: Count 1 – attempted first degree murder; Count
2 – employment of a firearm during the commission of a dangerous felony; Count 3 –
employment of a firearm during the commission of a dangerous felony by one having a
prior conviction for a dangerous felony; Count 4 – unlawful possession of firearm by one
having been convicted of a felony drug offense; and Count 5 – aggravated assault. See
Tenn. Code Ann. §§ 39-12-101, -13-102, -13-202, -17-1307, & -17-1324.

Officer Lee Shaw of the Knoxville Police Department (―KPD‖) testified that he
patrolled the Walter P. Taylor Homes area in June 2012 and responded to a call
concerning a shooting in front of the market on June 9, 2012. Upon his arrival, he saw
the victim lying behind a van, which was parked approximately fifteen to twenty feet
from the front entrance of the market. Officer Shaw observed that the victim was
suffering from multiple gunshot wounds, so he called for an ambulance and secured the
scene.

Several shell casings were found on the scene leading ―from the back of the van
towards the northeast,‖ and ―bullet impacts‖ were seen on the van and a nearby
newspaper stand, in addition to the victim‘s wounds. A total of five shell casings were
recovered and sent to the crime lab for testing.

KPD Investigator Lance Halseth was able to speak with one eyewitness at the
scene and later with the victim after his arrival at the University of Tennessee (―UT‖)
Medical Center where he received treatment for his injuries. From his investigation, Inv.
Halseth developed the Defendant as a suspect and prepared a photographic array for the
victim to view. The victim identified the Defendant as the shooter,1 according to Inv.
Halseth, and a warrant was issued for the Defendant‘s arrest. Inv. Halseth also asked the
market‘s clerk for security footage of the shooting, but he was told that the camera was
not working at that time.

Registered Nurse Dennis Downhour testified that he treated the victim when he
arrived at UT Medical Center on June 9, 2012, and that he observed multiple gunshot
wounds to the victim‘s shoulder, hand, and legs. The victim was immediately taken to
surgery due to the femoral fracture in his leg, which ―can be very dangerous‖ due to the
amount of blood loss, according to Nurse Downhour. After reviewing his notes, Nurse
Downhour could not definitely say whether the Defendant was shot in the back of the
shoulder or if it was merely an exit wound.

1
The victim invoked his Fifth Amendment rights and refused to testify at trial.
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 The Defendant was arrested in the weeks that followed, and following waiver of
his Miranda2 rights, he spoke with Inv. Halseth on July 18, 2012. The Defendant‘s
statement was played for the jury.

In the statement, the Defendant described the events as a ―drug deal gone bad‖ and
provided the following details to Inv. Halseth. The Defendant stated that a cousin had
called him and advised that he had a large quantity of crack cocaine for sale if the
Defendant knew of any interested buyers. Thereafter, the Defendant was contacted by
the victim, also a familial relation, who coincidently was seeking to make just such a
purchase. Because it was family, the Defendant agreed to facilitate the exchange,
referring to himself as the ―middleman‖ in the transaction. The Defendant then brokered
a deal between the victim and his cousin for $1,125-worth of crack cocaine, which took
place on June 7, 2012. A few hours later, the victim contacted the Defendant, advising
him that his customers did not like the taste of the crack cocaine. The Defendant offered
to return with the victim to the seller‘s residence, but the victim did not show up.

The Defendant told Inv. Halseth that, during the early morning hours of June 9,
2012, the victim, along with the victim‘s father, Maurice Johnson, confronted the
Defendant about the money that they believed was owed to the victim. According to the
Defendant, the victim pulled a TEC-9 semi-automatic pistol on him. The Defendant
claimed that they forced him into the car and that they drove to the seller‘s house to
demand a refund. However, when they arrived at the house, no one answered the door.
They later let the Defendant go.

The Defendant maintained that, later that day, he called the victim and offered to
reimburse him for half of the money he paid for the drugs. While en route to Walter P.
Taylor Homes, the Defendant heard from several people that the victim was with his
father at the Walter P. Taylor Homes complex looking for the Defendant, was armed, and
was threatening to kill him.

Once the Defendant arrived at Walter P. Taylor Homes, he stopped to speak with
L‘Amour Sly and Tomichael Bennett. While talking, the Defendant saw the victim and
his father walk past him headed towards the nearby market. Although they did not stop
to speak to him, the Defendant said he could see the outline of the TEC-9 inside the
victim‘s backpack at that time. According to the Defendant, he wanted to speak with the
victim, so he followed the victim inside the market. He stated that he did so in order to
appease the victim and negotiate an agreeable outcome.

2
See Miranda v. Arizona, 384 U.S. 436, 471-75 (1966).
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 Because the victim was with several friends while inside the store, the Defendant
went outside and waited for the victim to exit. Once outside, the Defendant again told the
victim that he would give him half of the cocaine purchase price, but the victim was not
satisfied with that offer, stating that the Defendant was trying to ―play‖ him. The
Defendant responded that he was only trying the resolve the matter. He then saw the
victim walk behind the van, heard him cursing, and he could see that the victim was
attempting to retrieve something from inside his backpack. The Defendant then pulled
out his weapon and warned the victim not to get the gun out of the bag. However,
according to the Defendant, the victim began to run away while trying to get inside the
bag, and he fired at the victim ―six or seven‖ times in self-defense.

Although the Defendant said L‘Amour Sly and Tomichael Bennett witnessed these
events, Inv. Halseth confirmed that he never spoke with these individuals following the
Defendant‘s interview to confirm the Defendant‘s story. That concluded the State‘s
proof.

The Defendant presented several witnesses in his defense. First, L‘Amour Sly
testified that, on June 9, 2012, he was at Walter P. Taylor Homes and stopped to talk with
Tomichael Bennett and the Defendant. As they were conversing, Mr. Sly saw the victim
and the victim‘s father walk past them. According to Mr. Sly, the victim had a TEC-9 in
his backpack, and the victim‘s father had black gloves and a handgun in his pockets. Mr.
Sly, along with Mr. Bennett and the Defendant, proceeded to the neighborhood market,
where they went inside and made some purchases. When Mr. Sly exited, he saw the
victim and his father ―standing on the other side of the van‖ that was parked in front of
the store and the Defendant ―standing with his back against the door.‖ Mr. Sly heard the
victim and the Defendant talking, and the conversation began ―getting heated.‖

Mr. Sly saw the victim turn towards the van and walk to the opposite side while
taking off his backpack. The victim‘s father, who was standing behind a metal
newspaper receptacle at this point, started putting his black gloves on, so Mr. Sly thought
―[s]omething fixing to go down.‖ According to Mr. Sly, the Defendant walked around to
the front of the van, and then the victim ―pull[ed] the gun up [and] squeeze[d] off two
shots‖; the Defendant went for his pistol and returned fire. When the victim fell to the
ground, his father fired ―four or five‖ shots at the Defendant, using the newspaper stand
―for cover[.]‖ Mr. Sly saw the Defendant leave going one way, and the victim‘s father
leave going another, but only doing so after he ―picked up the gun from the [victim] and
picked up the backpack[.]‖ Before the victim‘s father was able to ―cut [the Defendant]
off[,]‖ the Defendant got in a car and rode away, according to Mr. Sly.

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 Mr. Sly was asked if the Defendant had ―an opportunity to safely withdraw from
the situation[.]‖ He replied, ―I mean, he could have walked away, but they was in a—
they was pretty much following him to make sure that he didn‘t go nowhere.‖ Mr. Sly
agreed that there were many people present in the Walter P. Taylor Homes area that day,
including kids playing. He further agreed that there was a large open area next to the
store that the Defendant ―could have retreated to[,]‖ although he would have been turning
his back on two armed men. Mr. Sly confirmed that he had a felony conviction for
possession of marijuana with intent to sell.

James Johnson, an inmate in the county jail, testified that he worked at the Walter
P. Taylor Homes‘ market in June of 2012 but was off on the day of the shooting.
According to Mr. Johnson, the security surveillance system was operational during that
time; when the disk covering that day was full, the owner asked him to clear the disk; and
before he deleted it, he watched the footage of the shooting. On that disk, Mr. Johnson
saw a man dressed in black standing in front of the van, and he saw the Defendant and
the victim talking while standing toward the back of the van. Mr. Johnson believed that
the man in black was carrying a pistol. According to Mr. Johnson, he saw the man in
black ―running behind the car,‖ and it appeared that they were ―trying to ambush‖ the
Defendant. Mr. Johnson also saw the victim take his backpack off and attempt to get
something from inside. He never actually saw the victim with a weapon. Mr. Johnson
believed ―all the guns were in play‖ before the victim fell to the ground. According to
Mr. Johnson, the man in black tried to retrieve something from under the van, and he then
grabbed the victim‘s backpack and ran from the scene, never to return.

Tomichael Bennett, previously convicted of selling a counterfeit controlled
substance and of felony possession of a Schedule III controlled substance, testified for the
Defendant and gave his recollection of the events. Prior to the events at the market, Mr.
Bennett saw the victim and his father walking around Walter P. Taylor Homes looking
for the Defendant. The victim was wearing a red backpack that appeared heavy, and the
bag ―hung[, s]o it had to be a gun or something in it,‖ according to Mr. Bennett. Mr.
Bennett saw a ―reflection‖ of a gun inside the victim‘s father‘s pants pocket.

Later at the market, the Defendant was ―on a wall by the store‖ when the victim
and his father exited. Mr. Bennett saw the victim walk towards the Defendant, and they
had a conversation; he saw the victim‘s father go the other way towards the newspaper
stand. The victim then moved towards the front of the van and started ―fumbling with
this red little backpack‖ and pulled out what appeared to be a TEC-9. This was the first
time Mr. Bennett had seen the weapon. The Defendant then shot the victim. Mr.
Bennett also observed the victim‘s father pick up the red backpack and the victim‘s
handgun after the victim had been shot. According to Mr. Bennett, other than himself,
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the victim, the victim‘s father, the Defendant, and Mr. Sly, no one else was outside of the
market at this time.

A private investigator hired by the Defendant, Thomas Ham, testified that he
interviewed the victim on June 22, 2013. According to Mr. Ham, he asked the victim
about the shooting, and the victim advised,

‗Cause I tried walking up on him and tried to hit him, and he started
reaching . . . . I got myself shot. I wasn‘t even mad at Fat Cat,3 ‗cause
anybody knows you see somebody reaching for a gun, why would you even
reach for a gun, and he telling you, ‗Don‘t do it. Don‘t do it.‘ Fat Cat
telling you, ‗Don‘t do it.‘ It‘s . . . like I said, I‘m new to the game. That‘s
why I was going . . . .

Mr. Ham then asked the victim why he pulled the gun, to which the victim replied, ―Heat
of the moment. I knew he wasn‘t going to pay me my money anyway.‖ The victim also
told Mr. Ham that his father was not with him that day and that he did not see him until
after he got shot. According to the victim, his father came to him while he was lying on
the ground and asked, ―You got a gun?‖ The victim replied, ―It‘s right there,‖ to which
his father responded, ―I got you now.‖ Mr. Ham confirmed that the victim meant ―new to
the game‖ of selling drugs in his statement.

The State called Rebecca Byers, an evidence technician with the KPD, in rebuttal.
She stated that five spent shell casings were recovered from one general area at the scene
and that they were all .40 caliber Smith and Wesson casings. She also identified a
photograph of the victim at the hospital and, based upon that photograph, testified that the
victim had a bullet wound to his back in the upper shoulder area.

Following the conclusion of the proof, the jury found the Defendant guilty of
misdemeanor reckless endangerment as a lesser-included offense of attempted first
degree murder; not guilty of employment of a firearm during the commission of
dangerous felony; guilty as charged of unlawful possession of a weapon; and guilty as
charged of aggravated assault. Thereafter, the trial court imposed concurrent terms of
eleven-months and twenty-nine days for the misdemeanor reckless endangerment
conviction; two years for the unlawful possession of a weapon conviction 4; and five years
for the aggravated assault conviction. This timely appeal followed.
3
Fat Cat refers to the Defendant.
4
The Defendant was convicted under a prior version of section Tennessee Code Annotated section 39-17-
1307, for which his crime of unlawful possession of a firearm was only a Class E felony. This offense is
presently delineated as a Class D felony.
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 ANALYSIS

On appeal, the Defendant contends (1) that the trial court erred by allowing the
State to argue that the Defendant was engaged in unlawful activity and was, therefore, not
excused from the duty to retreat under a theory of self-defense; (2) that the trial court‘s
response to a question from the jury during deliberations about a person‘s duty to retreat
when engaged in an unlawful activity was in error; and (3) that the evidence is
insufficient to support his convictions. We will address each in turn.

I. Duty to Retreat
First, the Defendant argues that the trial court erred ―in permitting the State to
offer proof and argue that the Defendant had a duty to retreat before resorting to deadly
force in self-defense because at the time, [the] Defendant was engaged in . . . unlawful
acts.‖ Essentially, the Defendant contends that his actions were lawful. According to the
Defendant, Tennessee Code Annotated section 39-17-1322 bars his prosecution for
unlawful possession of a weapon because he employed a handgun in justifiable self-
defense, and moreover, the drug sale should have been viewed as completed two days
prior to the shooting and should not have been considered as ―ongoing‖ in nature.
Therefore, the Defendant surmises that the State should not have been permitted to argue
that he was engaged in any ―unlawful activity,‖ thus, requiring a duty to retreat under the
self-defense statute, Tennessee Code Annotated section 39-11-611(b). The State
responds that the trial court properly declined to limit its argument in this regard,
appropriately allowing evidence to be presented that the Defendant was engaged in
unlawful activity, in the form of either a drug sale or unlawful possession of a weapon,
and that the Defendant, therefore, had a duty to retreat before acting in self-defense.

Resolving these arguments involves principles of statutory construction. ―The
most basic principle of statutory construction is to ascertain and give effect to the
legislative intent without unduly restricting or expanding a statute‘s coverage beyond its
intended scope.‖ Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995) (citing State v.
Sliger, 846 S.W.2d 262, 263 (Tenn. 1993)). Where the statute‘s language is clear and
unambiguous, we derive the legislative intent from its plain and ordinary meaning. State
v. Collins, 166 S.W.3d 721, 726 (Tenn. 2005) (citing State v. Wilson, 132 S.W.3d 340,
341 (Tenn. 2004)). If, however, ―the parties derive different interpretations from the
statutory language, an ambiguity exists, and we must look to the entire statutory scheme
in seeking to ascertain legislative intent.‖ Owens, 908 S.W.2d at 926 (citing Lyons v.
Rasar, 872 S.W.2d 895, 897 (Tenn. 1994)). In ascertaining the intent of the legislature,
courts ―‗may look to the language of the statute, its subject matter, the object and reach of
the statute, the wrong or evil which it seeks to remedy or prevent, and the purpose sought
to be accomplished in its enactment.‘‖ Collins, 166 S.W.3d at 726 (quoting State v.
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Gilliland, 22 S.W.3d 266, 275 (Tenn. 2000)). ―Statutes ‗in pari materia‘—those relating
to the same subject or having a common purpose—are to be construed together.‖ Owens,
908 S.W.2d at 926 (citing Lyons, 872 S.W.2d at 897). Furthermore, the rules of statutory
construction direct courts not to ―apply a particular interpretation to a statute if that
interpretation would yield an absurd result.‖ State v. Sims, 45 S.W.3d 1, 11 (Tenn.
2001).

Tennessee‘s statute on self-defense provides, in pertinent part, as follows:

(b)(1) Notwithstanding § 39-17-1322, a person who is not engaged
in unlawful activity and is in a place where the person has a right to be has
no duty to retreat before threatening or using force against another person
when and to the degree the person reasonably believes the force is
immediately necessary to protect against the other‘s use or attempted use of
unlawful force.
(2) Notwithstanding § 39-17-1322, a person who is not engaged in
unlawful activity and is in a place where the person has a right to be has no
duty to retreat before threatening or using force intended or likely to cause
death or serious bodily injury, if:
(A) The person has a reasonable belief that there is an imminent
danger of death or serious bodily injury;
(B) The danger creating the belief of imminent death or serious
bodily injury is real, or honestly believed to be real at the time; and
(C) The belief of danger is founded upon reasonable grounds.

Tenn. Code Ann. § 39-11-611(b). The section referenced therein, section 39-17-1322,
provides as a defense to prosecution,

A person shall not be charged with or convicted of a violation under this
part if the person possessed, displayed or employed a handgun in justifiable
self-defense or in justifiable defense of another during the commission of a
crime in which that person or the other person defended was a victim.

The words ―this part‖ include all of the criminal violations in part 13 of Tennessee Code
Annotated chapter 39, title 17, or more specifically, Tennessee Code Annotated sections
39-17-1001 through 39-17-1364. ―The criminal violations set forth in part 13 of title 39,
chapter 17, comprise a diverse group of offenses involving a wide variety of weapons.‖
State v. Tracey C. Clark, No. M2007-00496-CCA-R3-CD, 2008 WL 1699425, at *6
(Tenn. Crim. App. Apr. 10, 2008) (Woodall, concurring).

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 In State v. Tracey Clark, the defendant made a similar argument as presented
herein, and the trial court granted the defendant‘s motion to dismiss the indictment for
possession of a weapon on school grounds, concluding that the defendant had established
to the court that he was acting in justifiable self-defense and that, therefore, section 39-
17-1322 barred his prosecution. 2008 WL 1699425, at *1-2. This court reversed on
appeal, rejecting the defendant‘s assertion that section 39-17-1322 ―operates as a
complete bar to indictment and prosecution for actions that are performed in ‗self-
defense.‘‖ Id. at *3. In so holding, the court reasoned that the ―justifiable self-defense‖
language of section 39-17-1322 served ―as a directive to law enforcement and district
attorneys that should they determine, based upon their investigation and using their
discretion, that a person acted in justifiable self-defense, they shall not seek to indict that
individual.‖ Id. This section,

along with others that grant legislative immunity for actions that ordinarily
amount to criminal activity, ―evidence the unambiguous legislative intent to
pronounce the Tennessee public policy of encouraging citizens to rescue a
person reasonably believed to be in imminent danger of death or serious
bodily harm, and to protect a citizen who undertakes such heroic action
from negative repercussions.‖

Id. (quoting Little v. Eastgate of Jackson, LLC, No. W2006-01846-COA-R9-CV, 2007
WL 1202431, at *9 (Tenn. Ct. App. Apr. 24, 2007)). The court continued,

If the legislature had intended actions performed in ―self-defense‖ to
operate as an absolute bar to prosecution, then it would have been
unnecessary to include the language that prohibits conviction in the statute.
In other words, if the statute barred indictment, there would be no reason to
address a conviction under Tennessee Code Annotated section 39-17-1322,
as there can be no prosecution without a valid indictment.

Id. (citing Dykes v. Compton, 978 S.W.2d 528, 529-30 (Tenn. 1998)).

The court in Clark then determined that the trial court improperly took the role of
fact-finder and usurped the role of the jury when it dismissed the indictment for
possession of a weapon on school grounds, concluding from the facts that the defendant
acted in justifiable self-defense. 2008 WL 1699425, at *5. In reaching its conclusion,
this court explained,

[B]y dismissing the indictment, the trial court found that the facts of the
case would not support a conviction for possession of a weapon on school
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 grounds because [the defendant] was the victim of an assault and displayed
his handgun in self-defense. This amounts, in our view, to a determination
of facts that were ―intertwined with the factual evidence of the defendant‘s
conduct at the time of the alleged offense.‖ [State v.] Goodman, 90 S.W.3d
[557,] 562 [(Tenn. 2002)]. The trial court‘s actions amounted to a grant of
summary judgment for [the defendant], which does not exist in criminal
cases. See [State v.] Burrow, 769 S.W.2d [510,] 514 [(Tenn. Crim. App.
1989)]. In our view, the facts asserted in the motion and at the evidentiary
hearing could only rationally bear upon the issue of guilt or innocence;
therefore, they were improper for consideration on the motion to dismiss.
Furthermore, the issue of self-defense is a matter for the jury to decide.
State v. Ivy, 868 S.W.2d 724, 727 (Tenn. Crim. App. 1993).

Id.

The Defendant argues that ―[i]f conduct cannot, by direct prohibition, be the basis
for a charge or conviction, how can it logically be considered the basis of a determination
that the felon who has armed himself in self-defense is engaged in ‗unlawful activity?‘‖
In accordance with the rationale espoused by this court in Clark, we agree that section 39-
17-1322 does not bar a charge or conviction for the Defendant‘s conduct in this case, and
any issue in that regard, i.e., whether he was acting in justifiable self-defense, was a
proper question for the jury. However, the issue of whether one was engaged in
justifiable self-defense while unlawfully possessing a weapon does not equate to the issue
of whether one was engaged in ―unlawful activity‖ for the purposes of the self-defense
statute requiring a duty to retreat. If we were to permit the State to argue that a felon in
possession of a weapon asserting self-defense, without more, could satisfy the definition
of ―unlawful activity,‖ such an interpretation would nullify the defense set forth in
section 39-17-1322, leading to an absurd result. Accordingly, the State should not have
been permitted to argue that the Defendant‘s conduct, a convicted felon for a drug
offense arming himself with a weapon prior to the shooting, standing alone, could have
formed the basis for the jury to conclude that the Defendant was engaged in ―unlawful
activity‖ for the purposes of the self-defense statute requiring a duty to retreat.

The Defendant also submits that he was not engaged in the ―unlawful activity‖ of
selling drugs at the time of the shooting. He reasons that the sale had been ―completed
two days prior when the contraband became the property of the buyer.‖ Accordingly, the
State should not have been allowed to present such an argument to the jury, in his
opinion. We decline to adopt the assertion put forward by the Defendant because, here,
we are dealing with the exchange of illegal narcotics, not a transfer of commercial goods.
We agree with the trial court that this issue of whether the Defendant was still engaged in
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a drug deal was factually driven. The Defendant by his own admission was the
middleman between the victim and a third party seller. When the victim became
displeased with the product shortly after the sale, he and his father returned to the seller‘s
house to retrieve the victim‘s money—whether the Defendant was forced by the victim to
return to the seller‘s house with them was a factual issue to be considered by the jury.
They were unsuccessful at the seller‘s house, and when the Defendant heard the victim
was looking for him, he sought out the victim while armed. According to the Defendant,
he did so to negotiate a satisfactory outcome; however, when negotiations broke down,
shots were fired. The Defendant was asking the trial court to make factual
determinations reserved for the jury.

The term ―unlawful activity‖ as used in section 39-11-611(b) is not defined.
Regardless, ―[w]here words and terms are in common use and are such as can be
understood by persons of ordinary intelligence, it is not necessary, in the absence of
anything in the charge to obscure their meaning, for the court to define or explain them.‖
See State v. Summers, 692 S.W.2d 439, 445 (Tenn. Crim. App. 1985). We note that the
parties seemingly argue both of these theories, unlawful possession of a weapon and
selling drugs, in a vacuum as to whether they qualify as ―unlawful activity‖ for purposes
of the self-defense statue. However, we feel constrained to note that the jury was entitled
to consider all of the facts and circumstances leading up to the Defendant‘s conduct in
determining whether the Defendant‘s use of force in defending himself was reasonable,
including whether he was engaged in ―unlawful activity‖ at the time. See T.P.I. Crim. —
40.06(b)(2).

Although we conclude that the trial court erred in allowing the State‘s argument
regarding unlawful possession of a weapon alone satisfied the definition of ―unlawful
activity,‖ the jury in this case was charged that justifiable self-defense was a defense to
the possession charge. Moreover, the jury was properly allowed to consider all of the
Defendant‘s conduct leading up to the shooting in determining whether he was engaged
in ―unlawful activity‖ and, therefore, had a duty to retreat under section 39-11-611(b).
Indeed, the question of whether the Defendant‘s actions were unlawful at the time of the
shooting was a question for the jury in their role as fact-finders. Given the overwhelming
evidence that the Defendant was engaged in ―unlawful activity‖ at the time of the
offenses, i.e., dealing drugs and all of his attendant conduct surrounding that transaction,
and in light of the jury‘s decision to find the Defendant guilty of unlawful possession of a
weapon with proper instructions, any error in permitting the State‘s argument was
certainly harmless. The Defendant is not entitled to relief.

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 II. Jury Instructions
The Defendant next contends that the trial court erred by failing to answer a
question posed by the jury during its deliberations and instead simply referring them
again to the pattern jury instruction on self-defense. The State responds that the trial
court‘s response was proper.

At trial, the court instructed the jury on self-defense as follows:

Included in the defendant‘s plea of not guilty is his plea of self-
defense.
If a defendant was not engaged in unlawful activity and was in a
place where he or she had a right to be, he or she would have no duty to
retreat before threatening or using force against the alleged victim when
and to the degree the defendant reasonably believed the force was
immediately necessary to protect against the alleged victim‘s use of
unlawful force.
If a defendant was not engaged in unlawful activity and was in a
place where he or she had a right to be, he or she would also have no duty
to retreat before threatening or using force intended or likely to cause death
or serious bodily injury if the defendant had a reasonable belief that there
was an imminent danger of death or serious bodily injury, the danger
creating the belief of imminent death or serious bodily injury was real, or
honestly believed to be real at the time, and the belief of danger was
founded upon reasonable grounds.
In determining whether the defendant‘s use of force in defending
himself was reasonable, you may consider not only his use of force but also
all the facts and circumstances surrounding and leading up to it. Factors to
consider in deciding whether there were reasonable grounds for the
defendant to fear death or serious bodily injury from the alleged victim
include but are not limited to any previous threats of the alleged victim
made known to the defendant; the character of the alleged victim for
violence, when known to the defendant; the animosity of the alleged victim
for the defendant, as revealed to the defendant by previous acts and words
of the alleged victim; and the manner in which the parties were armed and
their relative strengths and sizes.
―Force‖ means compulsion by the use of physical power or violence.
―Violence‖ means evidence of physical force unlawfully exercised
so as to damage, injure or abuse. Physical contact is not required to prove
violence. Unlawfully pointing a deadly weapon at an alleged victim is
physical force directed toward the body of the victim.
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 ―Imminent‖ means near at hand; on the point of happening.
If evidence is introduced supporting self-defense, the burden is on
the state to prove beyond a reasonable doubt that the defendant did not act
in self-defense.
If from all the facts and circumstances you find the defendant acted
in self-defense, or if you have a reasonable doubt as to whether the
defendant acted in self-defense, you must find him not guilty.

See T.P.I. Crim. — 40.06(b)(2).

During deliberations, the jury presented a question to the trial court regarding the
instructions on self-defense. The question reads: ―Does unlawful act preclude act of self-
defense as a defense plea?‖ The trial court then discussed with the parties the proper
response. Defense counsel asked the court to provide a supplemental instruction stating
that ―unlawful act‖ only goes to the question of whether the Defendant had a duty to
retreat and additionally instruct that the Defendant has no duty to retreat if he cannot do
so safely. The State requested that the trial court just ―reread‖ the instruction on self-
defense. The trial court then responded to the jury‘s inquiry as follows: ―Dear Jurors, I
will refer you back to the instructions, specifically page 16, which explains the law of
self-defense.‖ This was the ―safest and most accurate response‖ in the trial court‘s
opinion because to do otherwise may have ―run the danger of improperly influencing
their verdict.‖

Under Tennessee law, a trial court has a duty to provide ―a complete charge of the
law applicable to the facts of the case.‖ State v. James, 315 S.W.3d 440, 446 (Tenn.
2010) (quoting State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986)); see also Tenn. R.
Crim. P. 30(d)(2). A charge ―should not contain inaccurate or inapplicable statements of
legal principles that might tend to confuse the jury.‖ State v. Hatcher, 310 S.W.3d 788,
812 (Tenn. 2010) (citations omitted). Tennessee law, however, does not mandate that
any particular jury instructions be given so long as the trial court gives a complete charge
on the applicable law. See State v. West, 844 S.W.2d 144, 151 (Tenn. 1992). A charge is
prejudicial error ―if it fails to fairly submit the legal issues or if it misleads the jury as to
the applicable law.‖ State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997) (citing State v.
Forbes, 918 S.W.2d 431, 447 (Tenn. Crim. App. 1995); Graham v. State, 547 S.W.2d 531
(Tenn. 1977)). As a mixed question of law and fact, our standard of review for questions
concerning the propriety of jury instructions is de novo with no presumption of
correctness. State v. Smiley, 38 S.W.3d 521, 524 (Tenn. 2001).

Trial courts have ―the authority to respond to jury questions with a supplemental
instruction.‖ Forbes, 918 S.W.2d at 451. However, the Defendant has not cited to any
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authority which states that a trial court is obligated to answer the jury‘s questions during
deliberations or give a supplemental instruction in light of the jury‘s question. See, e.g.,
State v. Jim Gerhardt, No. W2006-02589-CCA-R3-CD, 2009 WL 160930, at *13 (Tenn.
Crim. App. Jan. 23, 2009) (finding that no clear or unequivocal rule of law had been
breached when the trial court simply referred the jury back to the initial charge in
response to the jury‘s note: ―Please define a criminal intent attempt of child abuse and
neglect. Does it matter if he (defendant) knew what he did would cause harm?‖; and the
word ―intent‖ was struck through). We are aware that this court has previously reversed
a defendant‘s conviction for failure to issue a supplemental instruction in light of an
erroneous jury instruction. See, e.g., State v. Robinson, 239 S.W.3d 211, 226-28 (Tenn.
Crim. App. 2006) (trial court‘s failure to answer jury question and issue supplemental
instruction regarding inability of accomplices to corroborate each other where initial jury
instruction did not inform jury of this ―well-settled law‖ constituted reversible error).
However, on appeal, the Defendant does not argue that the jury instruction on self-
defense was erroneous. Instead, the Defendant argues that ―[a] certain way to assure that
the jury understood that ‗unlawful activity‘ is only a consideration as to a duty to retreat
is to tell them so directly and answer the question directly.‖ According to the Defendant,
the trial court‘s response did not address the jury‘s misunderstanding. The Defendant
also requested that the trial court clarify for the jury that there is no duty to retreat if such
cannot be accomplished safely.

―Under the ‗true man‘ doctrine, one need not retreat from the threatened attack of
another even though one may safely do so. Neither must one pause and consider whether
a reasonable person might think it possible to safely flee rather than to attack and disable
or kill the assailant.‖ State v. Renner, 912 S.W.2d 701, 704 (Tenn. 1995). Tennessee‘s
law of self-defense in the use of deadly force, Tennessee Code Annotated section 39-11-
611(b), adheres to the true man doctrine. The statute also requires that one be in a place
where he has a right to be and not be engaged in any unlawful activity before there is no
duty to retreat. See State v. Hawkins, 406 S.W.3d 121, 128 (Tenn. 2013) (―To prevail on
a theory of self-defense, a defendant must show that he or she was ‗not engaged in
unlawful activity‘ and was ‗in a place where the person has a right to be.‘‖); State v.
Zachary Carlisle, No. W2012-00291-CCA-MR3-CD, 2013 WL 5561480, at *18-19
(Tenn. Crim. App. Oct. 7, 2013) (concluding that the defendant was not entitled to a self-
defense instruction because he was engaged in illegal activity, i.e., a drug deal with the
victim at the time of the murder, and because no evidence in the record suggested the
victim threatened the defendant with a deadly weapon or force). As discussed in the
section above, the State was properly allowed to argue, and the jury was correctly
allowed to consider, that the Defendant was engaged in unlawful activity and, therefore,
had a duty to retreat pursuant to the self-defense statute.

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 The trial court‘s instruction on self-defense was a proper statement of the law.
The instruction tracks the language of the relevant statute, see Tennessee Code Annotated
section 39-11-611(b), and it follows the pattern jury instruction, as provided in the
Tennessee Pattern Jury Instructions. Additionally, when a court chooses to repeat
instructions or give supplemental instructions, the instructions must be:

(1) appropriately indicated by questions or statements from jurors, or from
the circumstances surrounding the deliberative and decisional process, (2)
comprehensively fair to all parties, and (3) not unduly emphatic upon
certain portions of the law to the exclusion of other parts equally applicable
to the area of jury misunderstanding or confusion.

Berry v. Conover, 673 S.W.2d 541, 545 (Tenn. Ct. App. 1984). The trial court‘s ruling
indicates that it choose not to issue a supplemental instruction for fear such instruction
would be ―unduly emphatic upon certain portions of the law to the exclusion of other
parts equally applicable to the area of jury misunderstanding or confusion.‖ The trial
court also noted that the instruction on self-defense was an accurate statement of the law
and that the defense was permitted to argue to the jury ―that someone shouldn‘t have to
retreat if they can‘t do so safely.‖ We find no error in this regard.

We conclude that the trial court‘s jury instruction on self-defense fairly submitted
the legal issues, including that one only has a duty to retreat if engaged in unlawful
activity, and did not mislead the jury as to the applicable law. As such, the trial court‘s
referring the jury to its charge without giving an additional instruction was an appropriate
response. The Defendant is therefore denied relief on this issue.

III. Sufficiency of the Evidence
Next, the Defendant challenges the sufficiency of the convicting evidence
supporting his convictions for misdemeanor reckless endangerment and aggravated
assault. He argues that the State failed to provide any evidence that contradicted his
theory of self-defense, neither testimony from an eyewitness or a police officer, nor the
condition of the scene, nor any medical evidence. Specifically, he states,

While the jury is free to accept or reject any witness, the verdict does
not indicate rejection of the testimony of any eyewitnesses or the
Defendant‘s theory of the facts. Rather, the verdict is more indicative of
jury confusion about the effect of the 48-hour[-]old drug deal on [the
Defendant‘s] opportunity to claim self-defense.

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In response, the State contends that the evidence is sufficient to support these convictions
and that a reasonable juror could have rejected the Defendant‘s claim of self-defense.

An appellate court‘s standard of review when a defendant questions the
sufficiency of the evidence on appeal is ―whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.‖ Jackson v. Virginia, 443 U.S. 307,
319 (1979). This court does not reweigh the evidence; rather, it presumes that the jury
has resolved all conflicts in the testimony and drawn all reasonable inferences from the
evidence in favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984);
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness
credibility, conflicts in testimony, and the weight and value to be given to evidence were
resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

A guilty verdict ―removes the presumption of innocence and replaces it with a
presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the
evidence is insufficient to support the jury‘s verdict.‖ Id.; State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982). ―This [standard] applies to findings of guilt based upon direct
evidence, circumstantial evidence, or a combination of [both] direct and circumstantial
evidence.‖ State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). The
standard of proof is the same, whether the evidence is direct or circumstantial. State v.
Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). Likewise, appellate review of the
convicting evidence ―is the same whether the conviction is based upon direct or
circumstantial evidence.‖ Id. (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)). The duty of this court ―on appeal of a conviction is not to contemplate all
plausible inferences in the [d]efendant‘s favor, but to draw all reasonable inferences from
the evidence in favor of the State.‖ State v. Sisk, 343 S.W.3d 60, 67 (Tenn. 2011).

When a defendant relies upon a theory of self-defense, the State bears the burden
of proving that the defendant did not act in self-defense. State v. Sims, 45 S.W.3d 1, 10
(Tenn. 2001). Further, it is well-settled that whether an individual acted in self-defense is
a factual determination to be made by the jury as the sole trier of fact. See State v.
Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997); State v. Ivy, 868 S.W.2d 724,
727 (Tenn. Crim. App. 1993). ―Encompassed within that determination is whether the
defendant‘s belief in imminent danger was reasonable, whether the force used was
reasonable, and whether the defendant was without fault.‖ State v. Thomas Eugene
Lester, No. 03C01-9702-CR-00069, 1998 WL 334394, at *2 (Tenn. Crim. App. June 25,
1998) (citing Renner, 912 S.W.2d at 704). It is within the prerogative of the jury to reject
a claim of self-defense. See Goode, 956 S.W.2d at 527. Upon our review of a jury‘s
rejection of a claim of self-defense, ―in order to prevail, the defendant must show that the
-16-
evidence relative to justification, such as self-defense, raises, as a matter of law, a
reasonable doubt as to his conduct being criminal.‖ State v. Clifton, 880 S.W.2d 737,
743 (Tenn. Crim. App. 1994).

Some of the Defendant‘s arguments are superfluous, most being rendered moot by
our conclusions in the above sections of this opinion. First, as detailed previously, the
jury was entitled to consider all of the facts and circumstances leading up to the
Defendant‘s conduct in determining whether the Defendant‘s use of force in defending
himself was reasonable, including whether he was engaged in ―unlawful activity‖ at the
time. We have also noted that the trial court‘s instruction on self-defense was a proper
statement of the law and concluded that the trial court did not err by declining to clarify
the instruction in any regard. Thus, we disagree with the Defendant‘s assertion that ―the
verdict is more indicative of jury confusion about the effect of the 48-hour-old drug deal
on [his] opportunity to claim self-defense.‖

The Defendant argues that the evidence shows that he acted in self-defense when
he fired several rounds at the victim. As outlined in detail above, a person has no duty to
retreat and can use force against another ―when and to the degree the person reasonably
believes the force is immediately necessary to protect against the other‘s use or attempted
use of unlawful force,‖ provided the person ―is not engaged in unlawful activity and is in
a place where the person has a right to be.‖ Tenn. Code Ann. § 39-11-611(b). However,
a claim of self-defense is not available when the real or apparent necessity to use force is
brought about by the ―design, fault or contrivance of the defendant.‖ See Floyd v. State,
430 S.W.2d 888, 890 (Tenn. Crim. App. 1968).

―Reliance on self-defense is not limited to the exact moment of the assault [but]
may be considered in connection with the entirety of the events leading to the assault.‖
Ivy, 868 S.W.2d at 727 (citing Allsup v. State, 73 Tenn. 362 (1880)). The same is true
for the jury‘s rejection of a self-defense claim—they are entitled to consider the entirety
of the events leading up to the offenses. Viewed in the light most favorable to the State,
the evidence shows that the Defendant was engaged in unlawful activity at the time of
these acts—being the middleman in ―a drug deal gone bad‖ and possessing a weapon
while trying to locate the victim who had made threats against the Defendant. The
Defendant armed himself and sought out to the victim to engage in further ―negotiations‖
about the victim‘s dissatisfaction with the drugs. The Defendant, knowing that the victim
was armed, approached the victim and did not retreat. The Defendant drew his gun first,
and when the victim turned to run, shot him multiple times.

The evidence is sufficient to support a conclusion beyond a reasonable doubt that
Defendant did not act in self-defense when he shot the victim. The jury accredited some
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of the Defendant‘s evidence as shown by their decision to convict him only of
misdemeanor reckless endangerment as a lesser-included offense of attempted first
degree murder and by their not guilty verdict of employment of a firearm during the
commission of a dangerous felony offense. As this court has previously stated, ―[i]t is
the jury‘s province, as the trier of fact, to determine which parts of the testimony and
evidence to credit, and there is no requirement that a jury must wholly accept or reject a
witness‘s account of events.‖ State v. Gene Shelton Rucker, Jr., No. E2002-02101-CCA-
R3-CD, 2004 WL 2827004, at *6 (Tenn. Crim. App. Dec. 9, 2004) (citing State v. Bolin,
922 S.W.2d 870, 876 (Tenn. 1996)). ―The jury was entitled to accept that part of the
[D]efendant‘s proof they felt was consistent with truth and reject that portion they
believed originated in falsity.‖ State v. Gilbert, 612 S.W.2d 188, 190 (Tenn. Crim. App.
1980).

Finally, as to his conviction for unlawful possession of a weapon, the Defendant
―contends that, having established that his possession of a firearm as a convicted felon
was in self-defense by one faced with an illegal attack he cannot be convicted under any
offense in part 17 including Tenn[essee] Code [Ann]otated [section] 39-17-1322.‖ We
have previously dispensed with this argument herein. Accordingly, we conclude that the
evidence is sufficient to support all of the Defendant‘s convictions.

CONCLUSION

Based upon the foregoing reasoning and authorities, we affirm the judgments of
the trial court.

_________________________________
D. KELLY THOMAS, JR., JUDGE

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