Rashe Moore v. State of Tennessee

IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
November 4, 2015 Session

RASHE MOORE v. STATE OF TENNESSEE

Appeal by Permission from the Court of Criminal Appeals
Criminal Court for Shelby County
Nos. 0006306, 0006313-0006317 W. Otis Higgs, Jr., Judge

No. W2013-00674-SC-R11-PC – Filed March 16, 2016

In this post-conviction case, we clarify the appropriate prejudice analysis for ineffective
assistance of counsel claims arising from the failure to properly request jury instructions
on lesser-included offenses where, as here, the jury was given no option to convict of any
lesser-included offense. The jury convicted the petitioner as charged of one count of
aggravated burglary and multiple counts of aggravated rape, especially aggravated
kidnapping, and aggravated robbery in connection with a home invasion. On direct
appeal, the Court of Criminal Appeals affirmed the convictions and declined to address
the trial court’s failure to instruct the jury on lesser-included offenses because the
petitioner’s trial counsel did not request the instructions in writing as required by statute.
Thereafter, the post-conviction court denied relief. On appeal, a majority of the Court of
Criminal Appeals granted a new trial on the especially aggravated kidnapping charges
based on ineffective assistance of counsel. We hold that the Court of Criminal Appeals
erred in concluding that the petitioner was prejudiced by his trial counsel’s failure to
request a jury instruction on aggravated kidnapping as a lesser-included offense of
especially aggravated kidnapping. We conclude that no reasonable probability exists that
a properly instructed jury would have convicted the petitioner of any of his asserted
lesser-included offenses instead of the charged offenses. Because the petitioner suffered
no prejudice, he did not receive ineffective assistance of counsel as to any of his
convictions. We reverse the Court of Criminal Appeals’ judgment granting a new trial on
the especially aggravated kidnapping charges and reinstate the post-conviction court’s
judgment denying relief on these convictions. We further hold that the Court of Criminal
Appeals properly affirmed the denial of post-conviction relief on the petitioner’s other
convictions.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal
Appeals Affirmed in Part, Reversed in Part
SHARON G. LEE, C.J., delivered the opinion of the Court, in which CORNELIA A. CLARK,
JEFFREY S. BIVINS, and HOLLY KIRBY, JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor
General; Rachel E. Willis, Senior Counsel, Criminal Justice Division; Amy P. Weirich,
District Attorney General; David Zak, Assistant District Attorney General; and Charles
Summers, Assistant District Attorney General, for the appellant, State of Tennessee.

Charles S. Mitchell, Memphis, Tennessee, for the appellee, Rashe Moore.

OPINION

I.

On the evening of July 21, 1999, Albert Smith was at his house in Memphis,
Tennessee, with his friend Deana T. and his eight-year-old son. An older man, later
identified as Genore Dancy,1 forced his way into the house. A younger man, later
identified as the petitioner, Rashe Moore, entered the house a few minutes later. Both
Mr. Moore and Mr. Dancy were armed with handguns during the home invasion that
lasted approximately two hours. They took personal items from Mr. Smith and Deana T.
at gunpoint. While Mr. Dancy continued to hold the victims at gunpoint, Mr. Moore
ransacked the house.

A short time later, Mr. Smith’s roommate arrived at the house with Shauntel K.
and Latoya K. They were forced inside at gunpoint. Mr. Moore and Mr. Dancy took
various items of personal property from the six victims and then made them strip down to
their underwear and lie on the floor of the den.

Mr. Dancy ordered Latoya K. into another room while Mr. Moore held the other
victims at gunpoint. Mr. Dancy forced his penis into Latoya K.’s mouth at gunpoint. Mr.
Dancy and Latoya K. then returned to the den. Mr. Moore ordered Shauntel K. into
another room while Mr. Dancy held the other victims at gunpoint. Mr. Moore forced his
penis into Shauntel K.’s mouth at gunpoint. When a pager sounded, Mr. Dancy shot it.
Mr. Moore and Shauntel K. then returned to the den. Mr. Moore and Mr. Dancy ordered
the six victims into the kitchen, covered them with a sheet as they were lying on the floor,

1
Genore Dancy was convicted in a separate trial of four counts (later merged into two counts) of
aggravated rape, five counts of aggravated robbery, seven counts of especially aggravated kidnapping,
and one count of aggravated burglary. State v. Dancy, No. W2001-02451-CCA-R3-CD, 2003 WL
402788, at *1 (Tenn. Crim. App. Feb. 18, 2003). He was sentenced to 150 years. Id. At Mr. Dancy’s
trial, two victims, who also testified at Mr. Moore’s trial, identified Mr. Dancy as the first man to enter
the house. Id. Although Mr. Dancy was not identified by name at Mr. Moore’s trial, we use his name in
this opinion for clarity.
2
and bound their hands and feet with duct tape. Mr. Dancy then ordered Deana T. into
another room, where he forced his penis into her vagina.

While the victims were lying on the kitchen floor, a friend of Mr. Smith’s
roommate arrived at the house and was ordered inside at gunpoint. Mr. Moore and Mr.
Dancy pulled the man’s shirt over his head, took his keys and money, pulled his pants
down to his ankles, bound his hands, and put him under the sheet with the other six
victims.

Additional intruders entered the house. Four or five intruders took Deana T. from
the kitchen with a pillowcase on her head. One intruder forced his penis into her mouth,
and then another intruder repeated this act. The intruders removed the duct tape from her
ankles and then vaginally raped her. When Mr. Moore, Mr. Dancy, and the other
intruders left, they took with them the victims’ personal property and various items from
Mr. Smith’s house.

Deana T., Mr. Smith, and Shauntel K. identified Mr. Moore in a photo lineup. At
the trial in February 2002, four victims—Deana T., Mr. Smith, Shauntel K., and Latoya
K.—identified Mr. Moore as the younger man who, armed with a handgun, entered the
house, took valuable items from the victims, bound seven victims and forced them to lie
under a sheet on the kitchen floor, raped Shauntel K. at gunpoint, and held a gun on the
victims while Mr. Dancy raped Latoya K. and Deana T. and while other intruders then
raped Deana T. Mr. Smith and Deana T. testified that Mr. Moore appeared to be a
willing participant in the events of July 21, 1999.

Mr. Moore presented an alibi defense. He testified that he was at a club with his
girlfriend on the evening of July 21, 1999, and was not involved in the home invasion.
He did not deny that any of the events occurred, just that he was not present.

At the close of proof, the trial court announced its decision not to instruct on any
lesser-included offenses because Mr. Moore did not contest that the offenses occurred but
denied his involvement, testifying that he was elsewhere at the time of the home invasion.
Mr. Moore’s attorney then orally requested the trial court to instruct the jury on
facilitation as a lesser-included offense for the aggravated rapes of Latoya K. and Deana
T. The trial court denied the request, explaining that no factual basis supported a jury
instruction for facilitation, or any other lesser-included offense, based on the evidence.
The trial court stated, “I think it’s an all or nothing defense that has been presented.” The
jury convicted Mr. Moore as charged of six counts (later merged into three counts) of
aggravated rape, five counts of aggravated robbery, seven counts of especially aggravated
kidnapping, and one count of aggravated burglary. Mr. Moore received an effective
sentence of ninety-nine years.

3
 The Court of Criminal Appeals affirmed the judgment of the trial court. State v.
Moore, No. W2002-01195-CCA-R3-CD, 2003 WL 22888881, at *11 (Tenn. Crim. App.
Dec. 3, 2003). Mr. Moore argued, among other things, that the trial court erred in failing
to instruct the jury on the applicable lesser-included offenses, including facilitation for
the aggravated rape charges regarding Latoya K. and Deana T. and false imprisonment
for the especially aggravated kidnapping charges. Id. at *8. The Court of Criminal
Appeals held that Mr. Moore waived this issue by failing to make a written request for
jury instructions on the lesser-included offenses. Id. The Court of Criminal Appeals
pointed to a 2002 statutory amendment providing that, unless a defendant makes a written
request for lesser-included offense instructions, a trial judge’s failure to instruct the jury
on lesser-included offenses cannot be presented as a ground for relief on appeal. Id.
(citing Tenn. Code Ann. § 40-18-110(c) (Supp. 2002)). The Court of Criminal Appeals
did not review the issue for plain error. See State v. Page, 184 S.W.3d 223, 230 (Tenn.
2006) (“Although section 40-18-110(c) precludes a defendant from raising the trial
court’s failure to instruct on lesser-included offense instructions not requested in writing,
appellate courts are not precluded from sua sponte reviewing this issue under the plain
error doctrine.”). We denied Mr. Moore’s application for permission to appeal.

Thereafter, Mr. Moore filed a petition for post-conviction relief. The
post-conviction evidentiary hearing focused on his allegation that trial counsel was
ineffective for failing to properly request jury instructions on lesser-included offenses.

Trial counsel testified that Mr. Moore consistently maintained that he was at a club
with his girlfriend on July 21, 1999, and not at Mr. Smith’s house. Mr. Moore claimed at
trial that the victims had misidentified him. When the case was tried, trial counsel was
not aware of the amendment to Tennessee Code Annotated section 40-18-110, requiring
requests for jury instructions on lesser-included offenses to be in writing. See Tenn.
Code Ann. § 40-18-110(a) (Supp. 2002). The amendment requiring written requests
went into effect on January 1, 2002. See Act of May 24, 2001, ch. 338, §§ 1-2, 2001
Tenn. Pub. Acts 708, 709 (codified as amended at Tenn. Code Ann. § 40-18-110 (2012)).
The trial began just over a month later on February 11, 2002. The prior version of the
statute had placed a duty on trial judges to instruct on all lesser-included offenses
supported by the evidence, whether or not requested by the defendant. See Page, 184
S.W.3d at 229 (citing Strader v. State, 362 S.W.2d 224, 228 (Tenn. 1962)).

Trial counsel doubted that the outcome at trial would have been different had the
trial judge instructed the jury on any lesser-included offenses. Trial counsel testified that
“in reality the jury was going to believe [Mr. Moore] was there and participated in these
things, or they weren’t.” In trial counsel’s opinion, the case was not about
lesser-included offenses. On cross-examination, however, trial counsel clarified that he
thought the record was adequate for an appellate court to review the trial judge’s refusal
to instruct on any lesser-included offenses. Explaining that this trial judge routinely
4
refused to instruct on lesser-included offenses when the evidence supported the charged
offense, trial counsel gave this example of what the trial judge might say: “You want the
jury to believe that this witness who said she was raped at gunpoint, that somehow she
wasn’t raped at gunpoint, when that wasn’t your defense? No, that would be ludicrous,
we are not charging it.” Then, attempting to justify his failure to request instructions on
lesser-included offenses, trial counsel added, “So you didn’t argue. I made my record
and I didn’t argue.” Trial counsel knew that appellate courts had sent cases back to this
trial judge because of instructional error under the prior version of Tennessee Code
Annotated section 40-18-110(a). See, e.g., State v. Cox, No. W2000-02238-CCA-R3-
CD, 2001 WL 1584133, at *4 (Tenn. Crim. App. Nov. 29, 2001) (holding that this trial
judge committed reversible error by failing to instruct on theft as a lesser-included
offense of robbery); State v. Hughes, No. W1999-00360-CCA-R3-CD, 2001 WL 91736,
at *13-14 (Tenn. Crim. App. Jan. 26, 2001) (holding that this trial judge’s failure to
instruct on attempted voluntary manslaughter as a lesser-included offense of attempted
second degree murder was plain error and not harmless beyond a reasonable doubt).
Trial counsel had raised the lesser-included offense issue in the motion for new trial,
alleging that “the Court erred by failing to charge lesser[-]included offenses, where the
evidence adduced at trial was such that lesser[-]included offense instructions were
necessary to a fair trial[.]” Because trial counsel was not aware of the amendment to
Tennessee Code Annotated section 40-18-110, he mistakenly thought that Mr. Moore
could allege trial court error based on the omission of lesser-included offense instructions
that were not requested in writing.

The post-conviction court ruled that the trial court had denied the request for jury
instructions on lesser-included offenses on its merits, not because trial counsel had failed
to make a written request. The post-conviction court stated, “There is additionally no
evidence to suggest that the trial court would have granted [Mr. Moore’s] motion for any
additional lesser[-]included offenses had [trial counsel] filed a written motion.” The
post-conviction court found that the lesser-included offense instructions were irrelevant
to the defense presented by Mr. Moore. The post-conviction court concluded that Mr.
Moore failed to show that, but for trial counsel’s failure to make a written request for jury
instructions on lesser-included offenses, the outcome of his case would have been
different.

The Court of Criminal Appeals reversed the post-conviction court’s judgment on
Mr. Moore’s convictions for especially aggravated kidnapping, but affirmed the judgment
in all other respects. Moore v. State, No. W2013-00674-CCA-R3-PC, 2014 WL
8772276, at *13 (Tenn. Crim. App. Apr. 22, 2014). In granting Mr. Moore a new trial on
the especially aggravated kidnapping charges, the Court of Criminal Appeals reasoned
that “trial counsel’s failure to file a written motion requesting instructions prejudiced
[Mr. Moore] because if the written motion had been filed, even if it was denied, [the
Court of Criminal Appeals] would have reviewed the issue on the merits on direct appeal
5
and concluded that the trial court’s refusal to instruct the jury on aggravated kidnapping
was reversible error.” Id. at *10, *13. Concurring in part and dissenting in part, Judge
Roger Page agreed with the majority except as to granting a new trial for the especially
aggravated kidnapping charges. Id. at *13 (Page, J., concurring in part and dissenting in
part). Judge Page determined that, based on the evidence at trial, the trial court’s failure
to instruct the jury on aggravated kidnapping was harmless beyond a reasonable doubt,
and Mr. Moore therefore suffered no prejudice on his ineffective assistance of counsel
claim regarding the convictions for especially aggravated kidnapping. Id.

The State sought permission to appeal the Court of Criminal Appeals’ decision
overturning Mr. Moore’s especially aggravated kidnapping convictions. Mr. Moore
sought permission to appeal the Court of Criminal Appeals’ decision affirming the denial
of post-conviction relief on the rest of his convictions. We granted the parties’
applications to clarify the appropriate prejudice analysis for ineffective assistance of
counsel claims arising from the failure to properly request jury instructions on
lesser-included offenses where, as here, the jury was given no option to convict of any
lesser-included offense.

II.

A.

The Sixth Amendment to the United States Constitution and article I, section 9 of
the Tennessee Constitution guarantee individuals the right to effective assistance of
counsel in criminal proceedings. See Strickland v. Washington, 466 U.S. 668, 686 (1984)
(citing McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)); Vaughn v. State, 202
S.W.3d 106, 116 (Tenn. 2006) (citing State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999);
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The Post-Conviction Procedure Act,
see Tenn. Code Ann. §§ 40-30-101 to -122 (2012), provides for relief when a conviction
or sentence is void or voidable because of the abridgment of a right guaranteed by the
United States Constitution or the Tennessee Constitution. Id. § 40-30-103. The
deprivation of effective assistance of counsel is a constitutional claim cognizable under
the Post-Conviction Procedure Act. Mobley v. State, 397 S.W.3d 70, 79-80 (Tenn. 2013)
(citing Pylant v. State, 263 S.W.3d 854, 868 (Tenn. 2008)).

To prevail on a claim of ineffective assistance of counsel, a petitioner must
establish both that counsel’s performance was deficient and that counsel’s deficiency
prejudiced the defense. Strickland, 466 U.S. at 687; Goad v. State, 938 S.W.2d 363, 369
(Tenn. 1996) (citing Strickland, 466 U.S. at 687; Overton v. State, 874 S.W.2d 6, 11
(Tenn. 1994); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990)). If either the
performance or prejudice prong of the Strickland test is not met, then a court need not
consider the other. Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).
6
 A claim of ineffective assistance of counsel presents a mixed question of law and
fact. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Burns, 6 S.W.3d at 461).
A post-conviction petitioner must prove the allegations of fact by clear and convincing
evidence. Tenn. Code Ann. § 40-30-110(f). A post-conviction court’s factual findings
are conclusive on appeal unless the record preponderates against them. Fields, 40
S.W.3d at 456 (citing Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997); Tidwell v.
State, 922 S.W.2d 497, 500 (Tenn. 1996)); see also Tenn. R. App. P. 13(d). A
post-conviction court’s conclusions of law—such as whether counsel’s performance was
deficient and whether that deficiency was prejudicial—are reviewed under a purely de
novo standard with no presumption of correctness given to the trial court’s conclusions.
Fields, 40 S.W.3d at 458.

B.

In this case, the alleged ineffective assistance arises from trial counsel’s failure to
properly request jury instructions on lesser-included offenses. The first question we
address is whether trial counsel’s failure to make a written request for lesser-included
offense instructions constitutes deficient performance. To establish deficient
performance, a petitioner must demonstrate “that counsel’s representation fell below an
objective standard of reasonableness.” Strickland, 466 U.S. at 687-88. Counsel’s
performance is not deficient if the advice given or the services rendered “are within the
range of competence demanded of attorneys in criminal cases.” Baxter, 523 S.W.2d at
936; see also Strickland, 466 U.S. at 687 (stating that the “proper standard for attorney
performance is that of reasonably effective assistance”). Strategic decisions of counsel
are given deference but only when such choices are informed ones based upon adequate
preparation. Goad, 938 S.W.2d at 369 (citing Hellard v. State, 629 S.W.2d 4, 9 (Tenn.
1982); Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992)).

The State conceded that trial counsel’s lack of knowledge regarding the necessity
of making a written request for lesser-included offense instructions was deficient.
Moore, 2014 WL 8772276, at *4. Failing to request lesser-included offense instructions
will not constitute deficient performance, however, if the decision was a matter of
strategy. See Goad, 938 S.W.2d at 369. In this case, trial counsel had a two-part
strategy: (1) at trial, present an alibi defense; and (2) in the motion for new trial, allege
trial court error based on the failure to instruct on any lesser-included offenses. Choosing
not to request lesser-included offense instructions appears to be consistent with an all or
nothing defense based on Mr. Moore’s alleged alibi. However, this was only the first part
of trial counsel’s strategy. In making our deficient performance inquiry, we also must
evaluate the second part of trial counsel’s strategy.

Notwithstanding the alibi defense, Mr. Moore had a constitutional right to
lesser-included offense instructions warranted by the proof. See State v. Allen, 69 S.W.3d
7
181, 188 (Tenn. 2002) (“The evidence, not the theories of the parties, controls whether an
instruction is required.”); State v. Ely, 48 S.W.3d 710, 726-27 (Tenn. 2001) (holding that
a trial court’s obligation to instruct on all lesser-included offenses, when supported by the
evidence, derived not only from statute, but more importantly from article I, section 6 of
the Tennessee Constitution).2 Trial counsel mistakenly thought that Tennessee Code
Annotated section 40-18-110 still required the trial court to give the jury these
lesser-included offense instructions, whether or not requested in writing by Mr. Moore.
See Tenn. Code Ann. § 40-18-110(a) (1997) (“It is the duty of all judges charging juries
in cases of criminal prosecutions for any felony wherein two (2) or more grades or
classes of offense may be included in the indictment, to charge the jury as to all of the
law of each offense included in the indictment, without any request on the part of the
defendant to do so.”). Trial counsel did not know about the statute’s amendment,
effective approximately one month prior to Mr. Moore’s trial, requiring a written request
for lesser-included offense instructions. See id. § 40-18-110(a) (Supp. 2002) (“When
requested by a party in writing prior to the trial judge’s instructions to the jury in a
criminal case, the trial judge shall instruct the jury as to the law of each offense
specifically identified in the request that is a lesser[-]included offense of the offense
charged in the indictment or presentment.”). In addition, trial counsel was not aware of
the amendment requiring a written request to avoid waiver of the issue. See id.
§ 40-18-110(c) (“Notwithstanding any other provision of law to the contrary, when the
defendant fails to request the instruction of a lesser[-]included offense as required by this
section, such instruction is waived.”). Finally, because of a lack of knowledge about the
amendment, trial counsel improperly presented the lesser-included offense instruction
issue in the motion for new trial. See id. (“Absent a written request, the failure of a trial
judge to instruct the jury on any lesser[-]included offense may not be presented as a
ground for relief either in a motion for a new trial or on appeal.”).

Trial counsel’s decision to forego requesting instructions on any lesser-included
offenses, except facilitation, was not an informed choice based upon adequate
preparation. See Goad, 938 S.W.2d at 369 (citing Hellard, 629 S.W.2d at 9; Cooper, 847
S.W.2d at 528) (stating that “deference to matters of strategy and tactical choices applies
only if the choices are informed ones based upon adequate preparation”). We therefore
conclude that trial counsel performed deficiently by failing to properly request jury
instructions on lesser-included offenses.

C.

Having determined that trial counsel’s performance was deficient, the second
question is whether this deficiency resulted in prejudice. To establish prejudice, a

2
Article I, section 6 provides in pertinent part that “the right of trial by jury shall remain
inviolate[.]” Tenn. Const. art. I, § 6.
8
petitioner must show “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at
694; Goad, 938 S.W.2d at 370. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694. For ineffective
assistance of counsel claims arising from the failure to properly request lesser-included
offense instructions, the prejudice inquiry assesses whether a reasonable probability
exists that a properly instructed jury would have convicted the petitioner of the
lesser-included offense instead of the charged offense. Pylant, 263 S.W.3d at 869 (citing
State v. Zimmerman, 823 S.W.2d 220, 224 (Tenn. Crim. App. 1991)). The plurality
opinion in Bryant v. State, 460 S.W.3d 513, 527-28 (Tenn. 2015), incorrectly referred to
what a reasonable jury “could” have done rather than “would” have done. We overrule
any language in Bryant that suggests that the proper inquiry for assessing prejudice is
whether a jury “could” have convicted the petitioner of the lesser-included offense
instead of the charged offense.3

In assessing whether the jury would have convicted a petitioner of a
lesser-included offense instead of the charged offense, the analytical framework for the
prejudice inquiry at post-conviction mirrors the harmless error inquiry on direct appeal.
See State v. Richmond, 90 S.W.3d 648, 662 (Tenn. 2002) (“[I]n deciding whether it was
harmless beyond a reasonable doubt not to charge a lesser-included offense, the
reviewing court must determine whether a reasonable jury would have convicted the
defendant of the lesser-included offense instead of the charged offense.”). In determining
whether a reasonable jury would have convicted the defendant of the lesser-included
offense instead of the charged offense, courts should apply either the analysis set forth in
State v. Williams, 977 S.W.2d 101 (Tenn. 1998), or that adopted in Allen, 69 S.W.3d at
191. See State v. Locke, 90 S.W.3d 663, 675 (Tenn. 2002) (noting that harmless error is
not limited to Williams-type cases and citing Allen as the alternative analysis). We
previously have described the two approaches as (1) the analysis set forth in Williams and
(2) the determination of whether the jury would have convicted the defendant of the
lesser-included offense instead of the charged offense. State v. Banks, 271 S.W.3d 90,
126 (Tenn. 2008) (citing Richmond, 90 S.W.3d at 662, and Locke, 90 S.W.3d at 675, for
the “second” approach). We clarify that the purpose of the harmless error inquiry is to
assess whether the jury would have convicted the defendant of the lesser-included offense
instead of the charged offense. This assessment of prejudice is not a separate approach.
Rather, the assessment is made by applying either the Williams analysis or the Allen
analysis, depending on the circumstances.

Under the Williams analysis, where the jury convicts the defendant of a greater
charged offense rather than an immediately lesser offense standing between omitted
3
The term “could” connotes a possibility, no matter how improbable; whereas, the Strickland
prejudice prong requires a “reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Strickland, 466 U.S. at 694 (emphasis added).
9
lesser-included offenses and the offense for which the defendant was convicted, any error
from the omission of jury instructions on these other asserted lesser-included offenses is
harmless beyond a reasonable doubt because the jury, by finding the defendant guilty of
the greater offense to the exclusion of the immediately lesser offense, necessarily rejected
all other lesser-included offenses.4 Williams, 977 S.W.2d at 106. When the Williams
analysis cannot be used because the jury did not reject the immediately lesser offense, or
was given no option to convict of any lesser-included offense, courts should apply the
harmless error analysis adopted in Allen, 69 S.W.3d at 191. Under the Allen analysis,
courts “should conduct a thorough examination of the record, including the evidence
presented at trial, the defendant’s theory of defense, and the verdict returned by the
jury.”5 Id. In examining the evidence presented at trial, the harmless error analysis
focuses on the distinguishing element between the greater and lesser offenses, the
strength of the evidence of the distinguishing element, and the existence of contradicting
evidence of the distinguishing element. See id. We hereby adopt the Allen analysis for
ineffective assistance of counsel claims arising from the failure to properly request jury
instructions on lesser-included offense instructions where, as here, the jury was given no
option to convict of any lesser-included offense.

The lead opinion in Bryant referred to a strict approach of reviewing these
lesser-included offense issues and suggested that this approach was rejected in all
circumstances. See Bryant, 460 S.W.3d at 527 (describing a strict approach followed by
two panels of the Court of Criminal Appeals as “holding that a defendant can never show
prejudice stemming from the failure to charge a lesser-included offense when the
defendant has been found guilty of a greater offense”). This reference to a strict approach
has caused confusion, and we take this opportunity to resolve any unintended
consequences of Bryant. A strict approach relying solely on the fact of the conviction for
the charged offense would be contrary to Strickland because such reasoning, in essence,
converts the prejudice inquiry into a sufficiency-of-the-evidence question. See Crace v.

4
We need not specifically define the term “immediately lesser offense” in this case because the
jury here was given no option to convict Mr. Moore of any lesser offense. We clarify, however, that the
term “immediately lesser offense” does not encompass facilitation of the charged offense, attempt to
commit the charged offense, or solicitation to commit the charged offense. See Tenn. Code Ann.
§ 40-18-110(f)(2)-(4) (2012) (specifically including facilitation, attempt, and solicitation in the definition
of lesser-included offense); Burns, 6 S.W.3d at 467 (specifically including the “inchoate offenses” of
facilitation, attempt, and solicitation in the definition of lesser-included offense).
5
The “verdict returned by the jury” factor, although not material on this issue in many cases, was
important to the analysis in Allen because the jury rejected the charged offense of aggravated robbery and
instead convicted the defendant of the lesser-included offense of robbery. Id. at 185. In light of the
verdict convicting him of robbery and the controverted evidence of his intent, this Court held that the
failure to instruct on the asserted lesser-included offense of facilitation of robbery was reversible error.
Id. at 191-92. The “verdict returned by the jury” factor is not intended to be simply a review of the
sufficiency of the evidence.
10
Herzog, 798 F.3d 840, 849, 853 (9th Cir. 2015) (reviewing a decision of the Washington
Supreme Court and granting habeas corpus relief); Breakiron v. Horn, 642 F.3d 126, 140,
147 (3d Cir. 2011) (reviewing a decision of the Pennsylvania Supreme Court and
granting habeas corpus relief). A strict approach using the Williams analysis, however,
would not be contrary to Strickland. This type of strict approach does not rely on the fact
of the conviction for the charged offense, but instead recognizes that the analytical
framework for the prejudice inquiry at post-conviction mirrors the harmless error inquiry
on direct appeal and, under some circumstances, such as Williams-type cases, prejudice
can never be proven.6 Moreover, when any error from omitting a particular
lesser-included offense instruction is determined to be harmless beyond a reasonable
doubt on direct appeal, whether under the Williams analysis or the Allen analysis, then
any asserted deficiency of trial counsel based on failure to request that particular
lesser-included offense instruction can never be prejudicial in a post-conviction
proceeding.

D.

We now apply this prejudice analysis to Mr. Moore’s case. In determining
whether a reasonable probability exists that a properly instructed jury would have
convicted Mr. Moore of any of his asserted lesser-included offenses instead of the
charged offenses, we conduct a thorough examination of the record, including the
evidence presented at trial and the theory of defense. See Allen, 69 S.W.3d at 191. The
verdict returned by the jury does not factor into the analysis because the jury here was
given no option to convict Mr. Moore of any lesser-included offense. Moreover, because
the issue of any error from omitting lesser-included offense instructions was not
addressed on direct appeal and, therefore, not determined to be harmless beyond a
reasonable doubt, trial counsel’s failure to properly request jury instructions on
lesser-included offenses is an appropriate issue for post-conviction review. When
examining the evidence presented at trial, the prejudice analysis focuses on (1) the
distinguishing element between the greater and lesser offenses, (2) the strength of the
evidence of the distinguishing element, and (3) the existence of contradicting evidence of
the distinguishing element. See id.

The Court of Criminal Appeals reviewed the following asserted lesser-included
offenses of Mr. Moore’s respective convictions: (1) especially aggravated kidnapping—
aggravated kidnapping, kidnapping, false imprisonment, and attempt; (2) aggravated
rape—rape, aggravated sexual battery, sexual battery, and facilitation; (3) aggravated
robbery—robbery, aggravated assault, assault, theft, attempt, and facilitation; and
(4) aggravated burglary—burglary, aggravated criminal trespass, criminal trespass,

6
In this case, we need not determine the broader applicability of a strict approach because the
jury was given no option to convict Mr. Moore of any lesser-included offense.
11
attempt, and facilitation. Moore, 2014 WL 8772276, at *7-12. We will address
facilitation and attempt at the end of our analysis. We begin with the especially
aggravated kidnapping convictions, which the Court of Criminal Appeals reversed based
on trial counsel’s failure to make a written request for a jury instruction on aggravated
kidnapping as a lesser-included offense. Id. at *13.

As relevant to the charges against Mr. Moore, especially aggravated kidnapping is
false imprisonment “[a]ccomplished with a deadly weapon or by display of any article
used or fashioned to lead the victim to reasonably believe it to be a deadly weapon[.]”
Tenn. Code Ann. § 39-13-305(a)(1) (1997). Aggravated kidnapping is false
imprisonment “[w]hile the defendant is in possession of a deadly weapon or threatens the
use of a deadly weapon.” Id. § 39-13-304(a)(5) (1997). For purposes of our analysis,
especially aggravated kidnapping and aggravated kidnapping differ in whether the
defendant uses a deadly weapon or merely possesses (or threatens to use) a deadly
weapon. Overwhelming evidence showed that the perpetrators used deadly weapons by
holding the victims at gunpoint. Mr. Moore presented an alibi theory of defense. He did
not contest whether the perpetrators used deadly weapons, as opposed to merely
possessing them. No reasonable probability exists that a properly instructed jury would
have convicted Mr. Moore of aggravated kidnapping instead of especially aggravated
kidnapping. Therefore, we hold that the Court of Criminal Appeals erred in concluding
that prejudice resulted from trial counsel’s failure to properly request a jury instruction on
aggravated kidnapping. Because of the overwhelming evidence supporting the deadly
weapon element, we also hold that no prejudice resulted from trial counsel’s failure to
properly request jury instructions on the lesser-included offenses of false imprisonment
and kidnapping.7

Next, we apply the prejudice analysis to the aggravated rape convictions. As
relevant to the charges against Mr. Moore, “armed with a weapon” is the element that
distinguishes aggravated rape from rape,8 as well as aggravated sexual battery from
sexual battery.9 Sexual penetration, as opposed to sexual contact, is the element

7
See id. §§ 39-13-302(a) (1997) (defining false imprisonment as “knowingly remov[ing] or
confin[ing] another unlawfully so as to interfere substantially with the other’s liberty”), 39-13-303(a)
(1997) (defining kidnapping as false imprisonment “under circumstances exposing the other person to
substantial risk of bodily injury”).
8
See id. §§ 39-13-502(a)(1) (1997) (defining aggravated rape, as relevant here, as “unlawful
sexual penetration of a victim by the defendant or the defendant by a victim” where “[f]orce or coercion is
used to accomplish the act and the defendant is armed with a weapon or any article used or fashioned in a
manner to lead the victim reasonably to believe it to be a weapon”), 39-13-503(a)(1) (1997) (defining
rape, as relevant here, as “unlawful sexual penetration of a victim by the defendant or of the defendant by
a victim” where “[f]orce or coercion is used to accomplish the act”).
9
See id. §§ 39-13-504(a)(1) (1997) (defining aggravated sexual battery, as relevant here, as
12
distinguishing rape from sexual battery.10 Overwhelming evidence proved that the
victims were sexually penetrated and that the perpetrators were armed with guns. Mr.
Moore did not challenge either of these distinguishing elements, which were not relevant
to his alibi defense. No reasonable probability exists that a properly instructed jury
would have convicted Mr. Moore of any of these asserted lesser-included offenses
instead of aggravated rape. Therefore, we conclude that no prejudice resulted from trial
counsel’s failure to properly request jury instructions on these asserted lesser-included
offenses of aggravated rape.

We next address the aggravated robbery convictions. As relevant to the charges
against Mr. Moore, the use of a deadly weapon is the element that distinguishes
aggravated robbery from robbery and theft,11 and aggravated assault from assault.12 The
taking of property is the element distinguishing robbery from assault.13 Overwhelming
evidence showed that the perpetrators used deadly weapons and took property from the
victims. Mr. Moore did not contest either of these distinguishing elements, which were
not relevant to his alibi defense. No reasonable probability exists that a properly
instructed jury would have convicted Mr. Moore of any of these asserted lesser-included
offenses instead of aggravated robbery. Therefore, we conclude that no prejudice
resulted from trial counsel’s failure to properly request jury instructions on these asserted
lesser-included offenses of aggravated robbery.

“unlawful sexual contact with a victim by the defendant or the defendant by a victim” where “[f]orce or
coercion is used to accomplish the act and the defendant is armed with a weapon or any article used or
fashioned in a manner to lead the victim reasonably to believe it to be a weapon”), 39-13-505(a)(1) (1997)
(defining sexual battery, as relevant here, as “unlawful sexual contact with a victim by the defendant or
the defendant by a victim” where “[f]orce or coercion is used to accomplish the act”).
10
See id. §§ 39-13-503 (rape), 39-13-505 (sexual battery).
11
See id. §§ 39-13-402(a)(1) (1997) (defining aggravated robbery, as relevant here, as robbery
“[a]ccomplished with a deadly weapon or by display of any article used or fashioned to lead the victim to
reasonably believe it to be a deadly weapon”), 39-13-401(a) (1997) (defining robbery as “the intentional
or knowing theft of property from the person of another by violence or putting the person in fear”),
39-14-103(a) (1997) (defining theft of property as “knowingly obtain[ing] or exercis[ing] control over the
property without the owner’s effective consent” when the defendant acts “with intent to deprive the owner
of [the] property”).
12
See id. §§ 39-13-102(a)(1)(B) (1997 & Supp. 1999) (defining aggravated assault, as relevant
here, as committing an assault when the defendant “[u]ses or displays a deadly weapon”), 39-13-101(a)(2)
(1997) (defining assault, as relevant here, as “[i]ntentionally or knowingly caus[ing] another to reasonably
fear imminent bodily injury”).
13
See id. §§ 39-13-101 (assault), 39-13-401 (robbery).
13
 Regarding the conviction for aggravated burglary, the elements distinguishing it
from the asserted lesser-included offenses of burglary, aggravated criminal trespass, and
criminal trespass are (1) entry into a habitation and (2) intent to commit a felony, theft, or
assault.14 Overwhelming evidence supported these distinguishing elements. Mr. Moore
did not contest these distinguishing elements, and they were not part of his theory of
defense. No reasonable probability exists that a properly instructed jury would have
convicted Mr. Moore of any of these asserted lesser-included offenses instead of
aggravated burglary. Therefore, we conclude that no prejudice resulted from trial
counsel’s failure to properly request jury instructions on these asserted lesser-included
offenses of aggravated burglary.

We now address facilitation with respect to the convictions for aggravated rape,
aggravated robbery, and aggravated burglary. Facilitation applies when, “knowing that
another intends to commit a specific felony, but without the intent required for criminal
responsibility under § 39-11-402(2), the [defendant] knowingly furnishes substantial
assistance in the commission of the felony.” Id. § 39-11-403(a) (1997). Specifically, Mr.
Moore argues that trial counsel was ineffective regarding the aggravated rapes of Latoya
K. and Deana T. For these offenses, the jury convicted Mr. Moore based on his criminal
responsibility for Mr. Dancy’s conduct as the actual perpetrator, along with the conduct
of other intruders on the subsequent aggravated rapes of Deana T.15 Overwhelming
evidence showed that Mr. Moore shared Mr. Dancy’s intent in committing the aggravated
rapes. Proof that Mr. Moore was the actual perpetrator of the aggravated rape of
Shauntel K. showed that he shared the intent required for criminal responsibility for the
other aggravated rapes. In addition, overwhelming evidence demonstrated that Mr.
Moore shared Mr. Dancy’s intent in committing the aggravated burglary and the
aggravated robberies, regardless of whether Mr. Moore entered the house after Mr.
Dancy. Although trial counsel orally requested an instruction on facilitation for the
aggravated rapes of Latoya K. and Deana T., facilitation was not a theory of Mr. Moore’s
defense. Regarding all of these offenses, no reasonable probability exists that a properly

14
See id. §§ 39-14-403(a) (1997) (defining aggravated burglary, as relevant here, as “burglary of
a habitation”), 39-14-402(a)(1) (1997) (defining burglary, as relevant here, as entry, “without the effective
consent of the property owner,” into “a building other than a habitation (or any portion thereof) not open
to the public, with intent to commit a felony, theft or assault”), 39-14-406(a) (1997) (defining aggravated
criminal trespass, as relevant here, as “enter[ing] or remain[ing] on property” without the owner’s
effective consent and where the defendant’s presence will cause fear for the safety of another),
39-14-405(a) (1997) (defining criminal trespass, as relevant here, as “enter[ing] or remain[ing] on
property” without the owner’s effective consent).
15
See id. § 39-11-402(2) (1997) (defining criminal responsibility, as relevant here, as when,
“[a]cting with intent to promote or assist the commission of the offense, or to benefit in the proceeds or
results of the offense, the [defendant] solicits, directs, aids, or attempts to aid another person to commit
the offense”).
14
instructed jury would have convicted Mr. Moore of facilitation instead of the charged
offenses. Therefore, we conclude that no prejudice resulted from trial counsel’s failure to
properly request jury instructions on facilitation.

Finally, we analyze attempt with respect to the convictions for especially
aggravated kidnapping, aggravated robbery, and aggravated burglary. Criminal attempt
applies to situations where the defendant begins or tries to complete a criminal act. Id.
§ 39-12-101(a) (1997). We recently held that “criminal attempt is available as a
lesser-included offense of any charged offense in every case in which: (1) the charged
offense has a requisite intent element; and (2) the proof has fairly raised the completed
offense.” State v. Thorpe, 463 S.W.3d 851, 863 (Tenn. 2015). Overwhelming evidence
proved that the charged offenses were completed, and not just attempted. Mr. Moore did
not contest that the offenses were completed. Attempt was not a theory of his defense.
With regard to all of these offenses, no reasonable probability exists that a properly
instructed jury would have convicted Mr. Moore of attempt instead of the charged
offenses. Therefore, we conclude that no prejudice resulted from trial counsel’s failure to
properly request jury instructions on attempt.

In reviewing an ineffective assistance of counsel claim, we reach the same result
regardless of whether, as the record here suggests, the trial court would have refused to
give properly requested instructions on lesser-included offenses. Omitting
lesser-included offense instructions was harmless beyond a reasonable doubt because the
jury, if given the opportunity, would not have convicted Mr. Moore of any of the asserted
lesser-included offenses instead of the charged offenses. Because omitting these
lesser-included offense instructions was harmless beyond a reasonable doubt, any
deficiency of trial counsel resulting in the absence of these instructions cannot be
prejudicial.

III.

We conclude that no reasonable probability exists that a properly instructed jury
would have convicted Mr. Moore of any of his asserted lesser-included offenses instead
of the charged offenses. Because Mr. Moore suffered no prejudice, he did not receive
ineffective assistance of counsel as to any of his convictions. We hold that the Court of
Criminal Appeals erred in concluding that prejudice resulted from trial counsel’s failure
to request a jury instruction on aggravated kidnapping as a lesser-included offense of
especially aggravated kidnapping. We therefore reverse the Court of Criminal Appeals’
judgment granting a new trial on the especially aggravated kidnapping charges and
reinstate the post-conviction court’s judgment denying relief as to the especially
aggravated kidnapping convictions. We further hold that the Court of Criminal Appeals
properly affirmed the denial of post-conviction relief on Mr. Moore’s convictions for

15
aggravated rape, aggravated robbery, and aggravated burglary. It appearing that Mr.
Moore is indigent, costs of this appeal are assessed to the State of Tennessee.

______________________________
SHARON G. LEE, CHIEF JUSTICE

16