State of Tennessee v. Dashun Shackleford

03/18/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs October 27, 2021

STATE OF TENNESSEE v. DASHUN SHACKLEFORD

Appeal from the Criminal Court for Knox County
No. 109937 Steven Wayne Sword, Judge
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No. E2020-01712-CCA-R3-CD
___________________________________

The Defendant-Appellant, Dashun Shackleford, was convicted by a Knox County Criminal
Court jury as charged in a twenty-count indictment; four alternative counts each of
aggravated robbery against four victims and four corresponding counts of criminal gang
offense enhancement. The trial court merged the aggravated robbery convictions into four
counts and imposed a total effective sentence of twenty years’ incarceration to be served
at 85 percent. On appeal, the Defendant argues that (1) the evidence is insufficient to
support his gang enhancement convictions; and (2) the gang enhancement counts violate
his constitutional rights to due process and expressive association. Upon our review, we
conclude that the State failed to sufficiently prove the gang enhancement counts and failed
to comply with the notice requirements mandated by Tennessee Code Annotated § 40-35-
121(g). Accordingly, we reverse and vacate the judgments in Counts 13 through 16, and
remand for resentencing as to those counts. Because the gang enhancements are no longer
applicable to the Defendant’s case, we decline to address the constitutional questions raised
in this appeal.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of Criminal Court Reversed and
Vacated in Part; Remanded for Resentencing

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and JILL BARTEE AYERS, JJ., joined.

Clinton E. Frazier, Maryville, Tennessee, for the Defendant-Appellant, Dashun
Shackleford.

Herbert H. Slatery III, Attorney General and Reporter; Edwin Alan Groves, Jr., Assistant
Attorney General; Charme P. Allen, District Attorney General; and Ta Kisha Fitzgerald
and Philip H. Morton, Assistant District Attorneys General, for the appellee, State of
Tennessee.
 OPINION

On September 24, 2016, the seventeen-year-old Defendant and another man, fifteen-
year-old Jalon Copeland, robbed four teenage boys at gunpoint while they were playing
basketball. Following the robbery, the mother of one of the boys called the police. The
Defendant and Copeland were arrested the next day when one of the boys saw the same
car they were driving parked on his street. At trial, the Defendant did not dispute that the
victims in this case were robbed at gunpoint. He contested identification and denied that
he was the one who perpetrated the offense.

The Defendant’s trifurcated trial began on June 25, 2018. At trial, Tijuan Lamar
Willis testified that he was nineteen years old at the time of trial. He stated that at the time
of the robbery, he was a senior at West High School in Mechanicsville. Willis testified
that he was playing basketball at a neighborhood park with his friends Douglas Crosby III,
Jacquese Clark, and Damarius Parker on September 24, 2016. Willis, Crosby, and Parker
played basketball while Clark watched from a bench. A gold car was parked near the court.
Approximately thirty minutes after their arrival, Clark noticed a second car pull up, and the
driver got out of the car and talked to the Defendant prior to the robbery. Willis saw the
Defendant exit the gold car and walk down to where they were playing basketball. The
Defendant then “threw something away, and then turned around, pulled his gun out,
pointed it at [Crosby]’s legs and then his head, and then told him to empty everything.”
Willis testified that the Defendant and another guy, later determined to be Copeland, “took
everything” and explained that he and his friends “didn’t want to lose [their] live[s] over
not giving them what they wanted. So [they] just gave it to them.” Willis stated that the
car that Clark noticed was gold, and the Defendant was in the driver’s seat.

Willis reiterated that the Defendant pointed his gun at Crosby’s legs and head. He
did not remember whether Copeland also had a gun. Following the robbery, the Defendant
and Copeland got back into the gold sedan, with the Defendant again in the driver’s seat.
The group then witnessed the Defendant and Copeland drop Crosby’s and Willis’ emptied
backpacks outside a church. The group went back to Clark’s home and informed his
mother what happened, who subsequently called the police. Willis testified that the next
day, he saw the same gold sedan parked outside of “Nookie’s house[.]” Willis saw the
Defendant, wearing the same clothes as during the robbery, sitting on the porch of the
house and called police. Willis watched police arrive and take the Defendant into custody.
Willis testified that during the robbery, Parker’s speaker was stolen, Crosby’s shoes were
stolen, and Parker’s, Clark’s, and Crosby’s phones were stolen. Willis did not recover any
of his stolen property following the robbery. Photographs of the gold sedan and Nookie’s
house were received as exhibits. Willis did not know the Defendant prior to the robbery
and identified the Defendant at trial as the perpetrator of the offense.
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 On cross-examination, Willis clarified that following the robbery, the Defendant,
Copeland, and the other occupants of the car all climbed back into the gold sedan. Willis
testified that he did not recall if anyone other than the Defendant possessed a gun during
the robbery. He affirmed that he did not recognize the Defendant, Copeland, or the other
occupants of the car during the robbery. Willis reiterated that he saw the gold sedan parked
at a house near his home the next day, and the Defendant was on the house’s porch wearing
the same clothing as the day before. On redirect examination, Willis affirmed that there
was no “doubt in [his] mind” that the Defendant was the man who robbed him on
September 24, 2016. Upon questioning by the court, Willis clarified that the Defendant
stole his things from the bench by the basketball court because he did not have anything
on his person while playing basketball.

Douglas Crosby III testified that he was a junior in high school on September 24,
2016. Crosby agreed that he did not know the Defendant or Copeland prior to the robbery.
On the day of the robbery, Crosby and his friends “put all [their] stuff down” on the bench
by the basketball court before playing basketball. Crosby explained that Clark was sitting
on the bench watching them play when “he heard people laughing and talking . . . and
pointing at him” and asked the people if they were “plotting on [him.]” The Defendant
told Clark that he was not and “just laughed.” The Defendant then “came down the hill”
and was “throwing a bottle away . . . and when he threw it away, grabbed a gun, turned
around, pulled out the gun,” and told the group of friends to “give them everything.”
Crosby testified that he and his friends told the Defendant and Copeland where “all [their]
stuff” was located. Crosby explained that the group usually played basketball at a church
near his home, but the church was closed on the night of the robbery, forcing the group to
play basketball at the outdoor court instead. Crosby testified that the property he put on
the bench included his backpack containing his “hooping stuff and [his Air Jordan] shoes.”
Crosby gave the Defendant his phone and wallet from his pocket when the Defendant
pointed the gun at him. Parker had “a speaker and his phone” sitting on the bench.

Crosby testified that he was not paying attention to the gold sedan until Clark started
yelling towards its occupants. Crosby specifically remembered the Defendant because he
was the driver of the gold sedan and “the one that came down there first[.]” The Defendant
was approximately “three or four feet” away from Crosby when he pointed the gun at him
and demanded his things. Crosby described the Defendant’s gun as “silver and black.”
After the Defendant took everyone’s bags and other property, the Defendant got back into
the driver’s seat of the gold sedan. There was “another person,” Copeland, who was
“checking everyone too” to make sure they had given all of their things to the Defendant,
and the other occupants of the car stayed near where it was parked. Crosby described
Copeland’s role in the robbery as “a backup dude” who was also pointing a gun at Crosby
and his friends. Following the robbery, Copeland got into the backseat of the gold sedan.
Crosby ran shoeless to his home, but when no one was home, he and his friends went to
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Clark’s house. Crosby affirmed that he spoke to police when they arrived at Clark’s house.
Photographs of Crosby’s shoes and shoebox and Parker’s speaker were received as
exhibits. Crosby testified that he had purchased his shoes on September 23, 2016, for $210.
In addition to the shoes, Crosby testified that he had $250 in cash and a $150 check from
his workplace in his wallet at the time of the robbery. Crosby only had his backpack, shoes,
and phone returned to him by police. Crosby testified that there was no “doubt in [his]
mind” that the Defendant was the man who robbed him.

On cross-examination, Crosby testified that he thought there were “five or six
dudes” sitting in the gold sedan prior to the robbery. Only the Defendant and Copeland
approached the court. He affirmed that he and his mother looked on Facebook to try to
identify the people who had robbed him. Crosby remembered seeing the gold sedan drive
past Clark’s house following the robbery. There were still “five or six” people in the gold
sedan at that time. Crosby affirmed seeing a second vehicle parked next to the gold sedan
prior to the robbery. On redirect examination, Crosby stated that he was “a hundred percent
sure” that the Defendant was the man who “came up to [him], pointed a gun in [his] face,
and demanded [his] property[.]” Upon questioning by the court, Crosby explained that the
Defendant took Clark’s phone and phone charger directly from his person. On both
recross-examination and further redirect examination, Crosby reiterated that although he
was focused on the gun that was pointed at him, he was still able to “focus” on the person
who was holding the gun and “looked him in his eyes” when handing him his belongings.

Jaquese Clark’s testimony largely mirrored that of Crosby and Willis. Clark
testified that on September 24, 2016, he was at his neighborhood basketball court with his
friends after discovering that their local church court was closed. Clark remembered seeing
a gold Nissan Altima parked near the basketball court, with “a lot of people in the car and
just sitting up there.” He explained that although it was not unusual for other people to
watch people play basketball at the park, the people in the gold Nissan “didn’t feel right”
to him. He elaborated that his “instincts were telling [him], like, something’s up . . . people
don’t just sit in a car[.]” Clark and his friends put their things on a bench by the court, and
Parker, Willis, and Crosby began playing basketball, while Clark sat on the bench and
watched. Clark asked the occupants of the gold sedan if they were watching the basketball
game, and the occupants of the car asked Clark if he and his friends were betting on the
basketball game. Clark told them that they were not betting on the game because he
thought they were “trying to see if [they] had money[.]” The Defendant and a “little short
dude” began passing a gun back and forth to each other, and the Defendant, whom Clark
described as the “leader” of the group, then approached the basketball court. The
Defendant threw his drink into a trashcan, turned around, and told Clark to “give me
everything you got[.]” The other man began “emptying everybody’s pockets out[,]” and
“they took everything that was on the bench[.]”

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 Clark testified that there were five people in the gold sedan. He had never seen the
car or its occupants prior to the robbery. Clark specifically noticed the Defendant, who
was driving the gold sedan, because he was “just looking at [them].” He described the
Defendant’s gun as “black and gray.” Clark testified that Copeland also possessed a gun
and was pointing it at them. After taking their possessions, the Defendant and Copeland
returned to the gold sedan, with the Defendant again getting into the driver’s seat.
Following the robbery, Clark and his friends went to his home. They later saw the
Defendant driving the gold sedan “a street over from [his] house.” Though he was initially
reluctant to talk to police for fear of being labeled a “snitch,” Clark told police what had
occurred during the robbery. Clark eventually got back his stolen phone.

On cross-examination, Clark testified that he and his friends first passed the gold
sedan while walking towards the church, and he noticed “five or six” people inside of the
sedan. Clark approximated that twenty minutes passed between the time they arrived at
the basketball court and the robbery. The occupants of the gold sedan initially exited the
car when they first began speaking to Clark. Clark was a “couple steps” from the
Defendant by the end of their conversation. The Defendant was the same distance from
Clark when he first pointed his gun at him. Clark affirmed that his mother was the person
who called the police following the robbery.

Damarius Parker testified that he planned to meet with his friends to play basketball
at their local church on September 24, 2016, but he discovered that the church was closed.
He and his friends then went to play basketball at the outdoor court, and he noticed “five
guys hanging out by one car,” and they asked Parker and his friends if they were “betting
anything on the game[.]” Parker and his friends began playing basketball, and the
Defendant “came down the hill . . . with a bottle in his hand, threw it away, and pulled a
gun out on [Crosby], and told [them] to . . . pull everything out of [their] pockets[.]”
Copeland then “pulled out a gun as well[.]” Parker testified that his backpack, basketball
shoes, speaker, and phone were taken during the robbery. Following the robbery, the
Defendant, Copeland, and the other occupants of the gold sedan got back into the car and
drove away. Parker testified that he was “terrified” during the robbery.

On cross-examination, Parker testified that he and his friends spoke to police
approximately twenty minutes after the robbery occurred. He elaborated that the
Defendant was approximately three feet away from him when he pointed his gun at Parker.
Parker agreed that there were “three or four” other “kids that were at the playground” at
the time of the robbery. Parker did not recall seeing the sedan again after the robbery. On
redirect examination, Parker described the Defendant’s clothing during the robbery as a tan
bleached shirt and black pants.

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 Knoxville Police Department (“KPD”) Officer James Erskine testified that he was
working as a patrol officer on September 24, 2016, with his partner, KPD Officer Jacob
Schettler. He estimated that no more than ten minutes passed between his being dispatched
and making contact with two of the robbery victims. Officer Schettler contacted the other
two victims. The victims described to Officer Erskine the men who robbed them as a “tall,
heavyset, black male with kind of an afro-style hair, and . . . a lighter-skinned black male
about six foot tall.” The victims described their vehicle as a “newer model gold sedan that
was all stock.” Officer Erskine relayed those descriptions over his radio so that “other
units in the area [could] be on the lookout[.]” After speaking with the victims, he and
Officer Schettler contacted Investigator Thurman, and Officer Schettler “wrote out the
initial report on the incident.” The following day, Officer Erskine received a call from one
of the victims, who told him that he had seen the gold sedan parked in front of a house near
his home, and the men who had robbed him were sitting on the porch. The victim pointed
out the two men who had robbed him, and Officer Erskine detained the two men, who were
determined to be the Defendant and Copeland. Officer Erskine testified that as part of his
detaining the two men, he patted them down and transported Copeland to be interviewed
by Investigator Thurman. He found a loaded gun on Copeland when he patted him down,
which he later placed into evidence. Officer Erskine described the gun that he removed
from Copeland as “silver and black.” He affirmed that the description given by the victims
was consistent with the Defendant’s and Copeland’s appearance and the gold sedan. The
gold sedan was a rental car, and its renter gave Officer Erskine permission to search the
car. Inside the sedan, Officer Erskine found the Air Jordan sneakers and speaker that were
reported as stolen property from the robbery.

On cross-examination, Officer Erskine clarified that he had interviewed Clark and
Parker, and Officer Schettler interviewed Crosby and Willis. He agreed that the Defendant
was one of the first people to speak to him when he first approached the porch, and the
Defendant “was saying that he hadn’t” been involved in the robbery. The Defendant did
not have a weapon on his person when Officer Erskine patted him down. Officer Erskine
affirmed that he had located bullets in the sedan when he searched it, and the bullets were
the same caliber as the gun he found on Copeland’s person.

On redirect examination, Officer Erskine testified that when he initially passed the
house where the gold sedan was parked, all of the approximately eight men who were on
the porch went inside the house, including the Defendant and Copeland. On recross-
examination, Officer Erskine agreed that the Defendant was not the person to whom the
gold sedan was rented. He did not recall whether the Defendant had any money on his
person when he was arrested.

KPD Investigator Thomas Thurman testified that he worked in the violent crime
unit since early 2015. He was on duty on September 24, 2016, and received a radio
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notification about the occurrence of a robbery. He requested a detailed preliminary report
so that he “could use it . . . in the coming days to try to follow up.” Investigator Thurman
had previously worked in Mechanicsville as a patrolman and described it as a “tight-kn[i]t
community” with a “few hot spots that are problem areas.” He elaborated that there are “a
lot of good folks that live in Mechanicsville who are fearful of saying anything . . . when a
crime happens next door.” Investigator Thurman was “glad” that there were “young
victims who were . . . interested in pushing the case.” When Investigator Thurman arrived
at the house where the gold sedan was parked on September 25, 2016, there were “a number
of policemen” and “lots of neighbors” present at the scene. The Defendant and Copeland
had already been placed in police cruisers, and “there were a handful of other individuals
still present there near the front porch[.]” The gun that was found on Copeland’s person
was identified and entered into evidence. Investigator Thurman reiterated that one of the
victim’s shoes and speaker were located inside of the gold sedan.

At the scene, Investigator Thurman requested that the Defendant and Copeland be
transported to police headquarters so that he could speak to them individually. He agreed
that he advised the Defendant of his rights before interviewing him and that the Defendant
understood his rights. The Defendant informed Investigator Thurman that he, Copeland,
and his cousin, Tommy Lyons, had driven the gold sedan, which Lyons rented, to
Mechanicsville from Chattanooga. Investigator Thurman affirmed that Lyons was also
present at the house where the Defendant and Copeland were located.

On cross-examination, Investigator Thurman stated that it was “a little unusual” for
victims in Mechanicsville to identify suspects to police in broad daylight. He agreed that
the victims may have been more willing to identify the Defendant and Copeland because
they “had never seen them” and “weren’t familiar with them as being residents of
Mechanicsville[.]” Investigator Thurman agreed that the gold sedan could potentially
appear to be silver in color “depend[ing] on the lighting[.]” He further agreed that the
bullets found in the gold sedan and the gun recovered from Copeland were both “in the
nine-millimeter family[,]” but he was unsure whether the gun could actually fire those
bullets because they were different brands. Investigator Thurman stated that a second
firearm was not recovered inside of the home where the gold sedan was parked.

The Defendant elected not to testify on his own behalf. Following the close of proof,
the jury found the Defendant guilty in all counts. In the second phase of the trial, the
Defendant conceded that aggravated robbery was an enumerated criminal gang offense and
that he was a criminal gang member at the time of the offenses. Following the close of
evidence, the jury found that the Defendant’s aggravated robbery of the four victims
constituted criminal gang offenses. The jury found that the Defendant was a criminal gang
member based upon the following criteria: the Defendant “[a]dmits to criminal gang
involvements[;] the Defendant “[r]esides in or frequents a particular criminal gang’s area,
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adopts their style or dress, their use of hand signs or their tattoos, and associates with known
criminal gang members[;] “the Defendant ‘[i]s identified as a criminal gang member[] by
physical evidence such as photographs or other documentation.” The jury also found that
the aggravated robberies were committed at the direction of, in association with, or for the
benefit of the Defendant’s criminal gang or a member of the Defendant’s criminal gang.
At the sentencing hearing, the trial court applied the gang enhancement and elevated the
Defendant’s Class B aggravated robberies to Class A felonies, merged the 16 aggravated
robbery convictions into four, and ordered the Defendant to serve concurrent 20-year
sentences for each count. Following an unsuccessful motion for new trial, the Defendant
filed a timely notice of appeal, and this case is now properly before us for review.

ANALYSIS

I. Sufficiency of the Evidence. The Defendant contends that “there was
insufficient proof from which the jury could have found that [the Defendant] could be
convicted of the gang enhancement counts in the [i]ndictment[,]” specifically noting that
“[t]he testimony of the State’s witnesses about the purported benefit to Crips from [the]
Defendant would not allow a rational trier of fact to do more than speculate about any
purported benefit to Crips.” He also asserts that the State failed to demonstrate sufficient
evidence of a nexus “between the named members of the Crips and the listed
convictions[.]” In response, the State argues the evidence sufficiently supported the gang
enhancement counts because the Defendant committed the aggravated robberies with Jalon
Copeland, a fellow gang member. Therefore, the gang enhancement applies because the
aggravated robbery was committed “in association” with a fellow member of a gang. For
the reasons that follow, we agree with the Defendant, and conclude that there was
insufficient evidence to support application of the gang enhancements in this case.

“Because a verdict of guilt removes the presumption of innocence and raises a
presumption of guilt, the criminal defendant bears the burden on appeal of showing that
the evidence was legally insufficient to sustain a guilty verdict.” State v. Hanson, 279
S.W.3d 265, 275 (Tenn. 2009) (citing State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992)).
“Appellate courts evaluating the sufficiency of the convicting evidence must determine
‘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.’” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012) (quoting Jackson
v. Virginia, 443 U.S. 307, 319 (1979)); see Tenn. R. App. P. 13(e). When this court
evaluates the sufficiency of the evidence on appeal, the State is entitled to the strongest
legitimate view of the evidence and all reasonable inferences that may be drawn from that
evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011) (citing State v. Majors, 318
S.W.3d 850, 857 (Tenn. 2010)).

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 Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Sutton, 166 S.W.3d 686,
691 (Tenn. 2005); State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998). The standard of
review for sufficiency of the evidence “is the same whether the conviction is based upon
direct or circumstantial evidence.” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)
(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The jury as the trier of fact
must evaluate the credibility of the witnesses, determine the weight given to witnesses’
testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d 331,
335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)).
Moreover, the jury determines the weight to be given to circumstantial evidence, and the
inferences to be drawn from this evidence, and the extent to which the circumstances are
consistent with guilt and inconsistent with innocence, are questions primarily for the jury.
Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)).
When considering the sufficiency of the evidence, this court “neither re-weighs the
evidence nor substitutes its inferences for those drawn by the jury.” Wagner, 382 S.W.3d
at 297 (citing State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997)).

As relevant to this appeal, the Criminal Gang Offenses Statute provides:

(a) As used in this section, unless the context otherwise requires:

(1) “Criminal gang” means a formal or informal ongoing organization, association
or group consisting of three (3) or more persons that has:

(A) As one (1) of its primary activities, the commission of criminal gang
offenses;

(B) Two (2) or more members who, individually or collectively, engage in
or have engaged in a pattern of criminal gang activity;

(2) “Criminal gang member” is a person who is a member of a criminal gang, as
defined in subdivision (a)(1), who meets two (2) or more of the following criteria:

(A) Admits to criminal gang involvement;
....
(D) Resides in or frequents a particular criminal gang’s area, adopts their
style or dress, their use of hand signs or their tattoos and associates with
known criminal gang members;
....
(G) Is identified as a criminal gang member by physical evidence such as
photographs or other documentation;
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(3) “Criminal gang offense” means:
....
(B) The commission or attempted commission, facilitation of, solicitation
of, or conspiracy to commit any of the following offenses on or after July 1,
2013:

....
(x) Aggravated robbery, as defined in § 39-13-402;

....
(4)(A) “Pattern of criminal gang activity” means prior convictions for the
commission or attempted commission of, facilitation of, solicitation of, or
conspiracy to commit:

(i) Two (2) or more criminal gang offenses that are classified as felonies; or
(ii) Three (3) or more criminal gang offenses that are classified as
misdemeanors; or
(iii) One (1) or more criminal gang offenses that are classified as felonies
and two (2) or more criminal gang offenses that are classified as
misdemeanors; and
(iv) The criminal gang offenses are committed on separate occasions; and
(v) The criminal gang offenses are committed within a five-year period;

(B)(i) As used in this subsection (a), “prior conviction” means a criminal
gang offense for which a criminal gang member was convicted prior to the
commission of the instant criminal gang offense by the defendant and
includes convictions occurring prior to July 1, 1997;
(ii) Convictions for multiple criminal gang offenses committed as part of a
single course of conduct within twenty-four (24) hours are not committed
on “separate occasions.” However, acts that constitute criminal gang
offenses under subdivision (a)(3)(A) shall not be construed to be a single
course of conduct.

(b) A criminal gang offense committed by a defendant shall be punished one (1)
classification higher than the classification established by the specific statute
creating the offense committed if:

(1) The defendant was a criminal gang member at the time of the offense; and

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 (2) The criminal gang offense was committed at the direction of, in association
with, or for the benefit of the defendant’s criminal gang or a member of the
defendant’s criminal gang.

Tenn. Code Ann. § 40-35-121(a)-(b)(1)-(2) (2016). The Defendant concedes, as he did at
trial, that “he was a criminal gang member at the time” of the offenses and that aggravated
robbery is an offense subject to enhancement by the criminal gang offense statute.

Finally, Tennessee Code Annotated section 40-35-121(g) provides

If the defendant is charged with a criminal gang offense and the district
attorney general intends to seek enhancement of the punishment under
subsection (b), (c) or (e), the indictment, in a separate count, shall specify,
charge and give notice of the subsection under which enhancement is alleged
applicable and of the required prior convictions constituting the gang's
pattern of criminal gang activity.

During the gang enhancement phase of the trial, Stephanie Ogle, the officer
supervisor with the Criminal Court Clerk’s Office and the keeper of records for criminal
convictions, identified fifteen (15) felony certified judgments of conviction for (1) Adrian
Thomas (possession with intent to sell cocaine), (2) Devon Holloway (aggravated assault),
(3) Gregory Chase Williamson (aggravated assault), (4) Jayshawn Edward Williams
(aggravated burglary), (5) William Craig Wheat (attempted aggravated robbery and
aggravated burglary), (6) Ronald Eugene Nelson, Jr., (robbery), (7) Lonnie Alvin McNair
(possession with intent to sell cocaine), (8) Bekweri William Bost (possession with intent
to sell cocaine), (9) James Edward Blance (facilitation to commit aggravated robbery), (10)
James Coney (attempted possession with intent to sell cocaine), (11) Devonte Bonds
(attempted second degree murder), (12) Thomas Bishop (attempted second degree murder),
(13) Jason Sullivan (attempted second degree murder), (14) Nikos Burgins (aggravated
rape, aggravated robbery, and especially aggravated kidnapping), and (15) Dominick
Joseph Ratliff, (aggravated domestic assault). The judgments were received as a collective
exhibit. All of the offenses had been committed within a five-year period. Ogle testified
that whether the convictions were “enhanced for the criminal gang offense” was not listed
on the judgments, and she was unsure whether “any of those enhancements were
overturned later on[.]”

Detective Tom Walker of the Knox County Sherriff’s Department testified that he
worked in the gang intelligence unit. He was accepted by the court as an expert in gang
identification and gang investigations. Detective Walker explained that in order for a
person to be declared a gang member, he or she had to meet “ten points” on a Tennessee
Gang Investigators checklist. Ways to “earn” points included nine points for “an admission
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where they actually . . . say, ‘Yes, I’m a gang member,’” two points for hand signs in
photographs or on video that are specific to the gang they belong to, one point for wearing
gang-specific colors in photographs or on video, two points for creating gang-specific
graffiti to mark their territory, four points for associating with verified gang members, four
points for felony criminal history, five points for committing violent acts, eight points for
gang-specific tattoos, and six points for a weapons arrest. Once a person reached ten points,
he or she was declared a gang member both “by the definition of the State of Tennessee”
and “by the Tennessee Gang Investigators checkoff sheet.” Detective Walker testified that
“if there’s a gang member in Chattanooga—because they are a state certified unit, they use
the same criteria that [Knox County] do[es].” Detective Walker explained:

[T]he Crips were a street gang that started . . . in the 1970[]s in LA.
The Crips and the Bloods are . . . the main gangs that started somewhere
other than New York and in Chicago. They started on the west coast in LA.
They have multiple subsets. There are literally hundreds of them. . . . [I]f
you want a—like an organizational chart, there are two nations. There’s Folk
Nation and People Nation.

Folk Nation will be the Gangster Disciples and the Crip sets. People
Nation will be your Bloods, Vice Lords, Latin Kings, Pirus, and stuff like
that, and they will fall underneath the People Nation, and then under the
umbrellas of the Crips or Gangster Disciples you have what’s called the
subsets. So, you know, and like I said, there’s hundreds of them. Depending
on where you are in the country, what state you’re in, what city you’re in,
will depend on what subsets are in your particular area, and there’s where
our job comes in is to figure out what subsets of these gangs are in our area.

Detective Walker affirmed that all of the subsets still belonged to the same Crips.
He stated there were eight different subsets in the Knoxville area alone, some of which did
not get along with each other. Detective Walker identified all of the individuals named in
the judgments of convictions from Ogle’s testimony, with the exception of Ronald Eugene
Nelson Jr., as confirmed Crip gang members with an excess of the requisite ten points.
Detective Walker testified that the Defendant had been confirmed as a Crip gang member
on December 16, 2016. To reach the requisite ten points, Detective Walker explained that
the Defendant had given a statement that he was a gang member, posed for pictures on
social media with him “throwing gang[-]specific hand signs [and] wearing gang[-]specific
colors,” associating and posing with known gang members in Chattanooga, had a felony
criminal history, committed the aggravated robbery, a violent crime, and had also been
confirmed as a Crip gang member by the Chattanooga Police Department’s gang unit.

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 Photographs from the Defendant’s Facebook page were received as exhibits. The
photographs depicted the Defendant wearing a “blue do-rag,” a gang-specific color,
holding a handgun and threatening a rival gang, throwing a “W” gang sign for “west coast
. . . where the ‘Rollin 90s’ are originally from[,]” and stepping on a red do-rag to
demonstrate his “disrespect” for rival gangs. Further, the Defendant’s Facebook page was
under the name “Shun NHC,” which Detective Walker identified as his street name and
Neighborhood Crip, which “encompasses all Crips of a certain set or a particular area.”
The Defendant also spelled out “neighborhXCd” in one of his Facebook posts, which
Detective Walker testified was symbolic for the “Rollin 90 Neighborhood” Crip gang.
Another photograph from the Defendant’s Facebook page depicted him at another Crip
gang member’s memorial in Chattanooga while doing the “Crip Stance” and “throwing the
Rollin hand sign with both hands.” In another photograph on the Defendant’s Facebook
page, he referred to a man in the photograph as “cuz,” which Detective Walker explained
was “a generic term for all Crips.” Detective Walker reiterated that the Defendant had
been confirmed as a gang member on December 16, 2016, when he was interviewed and
admitted to being a “Rollin 90 Crip.”

On cross-examination, Detective Walker testified that he was not present when the
Defendant admitted to being a gang member. He explained that Officer Brent Worley, a
member of the security threat group, interviewed the Defendant when he was initially
admitted into the jail facility and subsequently generated an interdepartmental memo that
Detective Walker reviewed and stored in his accumulated gang files. Detective Walker
affirmed that with the exception of Nikos Burgins, a “107 Hoover,” and Dominick Ratliff,
a “plain Crip,” all of the men in the judgments of convictions that were received by the
court were confirmed members of the “52 Hoovers” gang, a subset of the Crips. He stated
that all of those men “associate in the Mechanicsville area where the [robbery] took place.”
Detective Walker denied that the “Rollin 90s” Crips, to whom the Defendant belonged,
had a “beef” with the “52 Hoovers.” He explained that in 1979, the “Rollin 90s” Crips and
the “111 Hoover” Crips had a “falling out.” He further reiterated that the “Neighborhood
Crips” was a term that encompassed all Crips subsets, so the Defendant could identify both
as a “Neighborhood Crip” and a “Rollin 90s” Crip.

Investigator Thurman was recalled a witness. He identified photographs of Jalon
Copeland wearing “a blue do-rag and a blue jacket and holding a silver-colored semi-
automatic handgun.”

Chattanooga Police Department (“CPD”) Sergeant Josh May testified that he
worked in gun and gang investigations. He explained that in 2015, CPD “started seeing a
lot of social media activity” between the “Rollin 90 Crips” and the “Rollin 20 Bloods”
gangs. The activity led to “shots fired and violence back and forth.” Sergeant May stated
that he first learned who the Defendant was when the Defendant was the victim of an
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aggravated assault in March 2014. Copeland attended the same school as Sergeant May’s
children, and Sergeant May was asked by the principal to speak with Copeland regarding
his “going down the wrong path.” Sergeant May later came across Copeland’s social media
activity and “linked it to the ‘Rollin 90’ Crips.” He also linked the Defendant’s social
media activity to the “Rollin 90” Crips. CPD utilized the same gang validation process as
explained by Detective Walker. Sergeant May was able to confirm both Copeland and the
Defendant as “Rollin 90” Crips members using such criteria. Sergeant May explained that
he specifically used “videos on YouTube or Facebook live . . . with the individuals . . .
claiming ‘Rollin 90’ Crip sets,” “various social media pictures,” “hand signs,” and an
admission by Copeland to classify them as “Rollin 90” Crips members. The Defendant
and Copeland appeared together in videos and pictures on social media, along with other
“Rollin 90s” Crips members. Sergeant May explained that there were only “10 to 11”
“Rollin 90s” Crips members in Chattanooga, so CPD was able to “identify a vast majority
of them[.]” Sergeant May agreed that there were a lot of Chattanooga gang members
“coming up” to Knoxville, but he could not specifically link the “Rollin 90s” Crips as part
of that migration. Sergeant May identified a photograph of Copeland with Trevion Peoples
and Michael Knight, who were also known “Rollin 90” Crips members. Sergeant May
further identified a photograph of a memorial for Jordan Clark, or “DarcSide[,]” who was
killed in 2015 by a “Rollin 20 Blood” gang member.

On cross-examination, Sergeant May clarified that he did not have direct contact
with the Defendant when he was the victim of a shooting in 2014. He was unaware that
the Defendant was not in Chattanooga for a portion of 2015.

KPD Investigator Jacob Wilson testified that he was a patrolman in Mechanicsville
in September 2016. He explained that he was one of the officers who responded to the
house where the gold sedan, the Defendant, and Copeland were located on September 25,
2016. Subsequent to the Defendant’s arrest, Investigator Wilson had been “dispatched
either to that residence or the immediate area” multiple times. Investigator Wilson knew
that the residence often housed “gang members, particularly Crips, from the Chattanooga
area.” He elaborated that he had been called to the house for “gunfire” and “known gang
members sitting on the porch[.]” Investigator Wilson “noticed an uptick in known Crip
gang members that are from the Chattanooga area” at the house and overall in
Mechanicsville. On cross-examination, Investigator Wilson affirmed that the uptick in
gang activity at that residence occurred after the Defendant’s arrest and that there was no
evidence that the Defendant was involved in that activity.

Viewed in the light most favorable to the State, we cannot conclude that the State
sufficiently proved the gang enhancement counts based on the fatal variance between the
indictment and the proof presented during the gang enhancement phase of trial. Tennessee
Code Annotated section 40-35-121(g) mandates that the State “charge and give notice of
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the subsection under which enhancement is alleged applicable and of the required prior
convictions constituting the gang’s pattern of criminal gang activity.” In the instant case,
the indictment charging the Defendant labeled him as a “Crips” member and listed eighteen
other gang members as fellow “Crips” along with their past convictions to establish the
necessary “pattern of criminal gang activity” as required by section 40-35-121(g). The
Defendant was also listed as a plain “Crip.” However, in the gang enhancement phase of
trial, Detective Walker testified that with the exception of Nikos Burgins, a “107 Hoover,”
and Dominick Ratliff, a “plain Crip,” all of the men in the judgments of convictions that
were received by the court purportedly to establish a pattern of criminal gang activity were
confirmed members of the “52 Hoovers” gang (Knoxville), a different subset of the
umbrella Crips, who “associate[d] in the Mechanicsville area where the [robberies] took
place.” The Defendant was established as a “Rollin 90s” Crip member, a subset located
only in Chattanooga. Such variance between the indictment and the evidence presented at
trial is problematic in multiple ways.

A variance exists when the proof at trial does not correspond to the allegations in
the indictment. State v. March, 293 S.W.3d 576, 588 (Tenn. Crim. App. 2008) (citing
Keel, 882 S.W.2d at 416). A variance is not fatal unless it is material and prejudicial. State
v. Moss, 662 S.W.2d 590, 592 (Tenn.1984); State v. Shropshire, 45 S.W.3d 64, 71 (Tenn.
Crim. App. 2000); State v. Holloman, 835 S.W.2d 42, 45 (Tenn. Crim. App. 1992). “A
material variance occurs only if the prosecutor has attempted to rely at the trial upon
theories and evidence that were not fairly embraced in the allegations made in the
indictment.” State v. Mayes, 854 S.W.2d 638, 640 (Tenn. 1993) (citation omitted); State
v. Ealey, 959 S.W.2d 605, 609 (Tenn. Crim. App. 1997). The Tennessee Supreme Court
outlined the following test for determining whether a variance is prejudicial:

Unless substantial rights of the defendant are affected by a variance, he has
suffered no harm, and a variance does not prejudice the defendant’s
substantial rights (1) if the indictment sufficiently informs the defendant of
the charges against him so that he may prepare his defense and not be misled
or surprised at trial, and (2) if the variance is not such that it will present a
danger that the defendant may be prosecuted a second time for the same
offense; all other variances must be considered to be harmless error.

State v. Moss, 662 S.W.2d 590, 592 (Tenn.1984). Because the indictment in the instant
case did not sufficiently inform the Defendant of the gang enhancement charges as required
by statute, we cannot conclude that the indictment allowed the Defendant to prepare his
defense without being misled or surprised at trial. The trial transcript shows that the State
relied on evidence not fairly embraced in the gang enhancement portions of the indictment.
In only labeling the men listed in the indictment to establish the notice of pattern of criminal
gang activity required by the statute as plain “Crips” but using the subsets “52 Hoovers”
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and a “107 Hoover” to establish the “pattern of criminal gang activity,” the State limited
the Defendant’s ability to prepare a defense and potentially rebut such evidence of the
pattern of criminal gang activity. We note that only one of the men, Dominick Ratliff,
whose judgments of convictions were presented, were actually a “plain Crip” as the
indictment purported all of the men listed to be. Such a change in evidence could have
easily misled and surprised the Defendant at trial. Although we do not intend to state that
the subset Crip groups do not fall under the umbrella Crips, the difference between being
a “plain Crip” versus a member of a subset is evidenced by the fact that it is obviously
possible to be only a “plain Crip” based on the information presented regarding Dominick
Ratliff. The record suggests that the State intended to use the umbrella Crips to establish
all of the requirements of section 40-35-121 as a work-around for establishing all of the
needed parts of the enhancement statute when the Defendant was a member of a different
gang than were the other gang members in the area. Concluding that such a variance was
acceptable could create a dangerous precedent in allowing the State to give a defendant
“notice” of gang enhancement based on the prior convictions of members of unrelated
gangs to establish a “pattern of criminal gang activity” for the Defendant’s gang.

We also note that even though Detective Walker explained that all of the subsets
still belonged to the same Crips gang, the State failed to offer any proof that the
Defendant’s gang, the “Rollin 90s” Crips, had engaged in a “pattern of criminal gang
activity.” None of the victims, lifetime residents of Mechanicsville, had ever seen the
Defendant prior to the instant offense. Additionally, Investigator Wilson candidly testified
that “the uptick” in gang activity near the offense location occurred after the Defendant’s
arrest, and there was no evidence that the Defendant was involved in that activity. Only
the Defendant and Copeland were presented as members of the “Rollin 90s” Crips. We do
not mean to suggest that a subset of a criminal gang cannot satisfy the statutory definition
required to establish a criminal gang or pattern of criminal gang activity or vice versa.
Instead, we note only that the gang expert in this case did not offer any testimony
connecting the umbrella branch of the Crips, the “52 Hoover” Crips, the “Hoover 107”
Crips, or the “Rollin 90s” Crips, or specifically how the activities of these organizations
interrelate.

Further, given that the gang enhancement counts obviously enhance a defendant’s
punishment for an enumerated crime, we liken the notice required by section 40-35-121(g)
to the notice required by the State when it otherwise seeks enhanced punishment. See, e.g.,
Tenn. Code Ann. § 40-35-120(i)(2), § 40-35-202. In such an instance, the State’s required
notice is meant to provide “fair notice of their exposure to enhanced sentencing, orders
plea-bargaining, enables defendants to make informed decisions before pleading guilty,
aids defendants in developing trial strategy and preparing for sentencing hearings, and
assists defendants ‘in evaluating the risks and charting a course of action before trial.’”
State v. Patterson, 538 S.W.3d 431, 438 (Tenn. 2017) (quoting State v. Adams, 788 S.W.2d
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557, 559 (Tenn. 1990)) (internal footnote omitted). Thus, in labeling the Defendant and
the other men listed in the indictment as “plain Crips” but actually proving them to be
members of different gangs at trial, the State failed to provide the Defendant with proper
and sufficient notice.

Because the State fail to provide sufficient notice to the Defendant, it also failed to
prove that the Defendant’s criminal act of stealing the victims’ tennis shoes, money, and
cell phones at gunpoint satisfied the conditions of section 40-35-121 to elevate the
Defendant’s conviction from a Class B to a Class A felony. We conclude, therefore, that
the evidence is insufficient to support the jury’s findings regarding the Criminal Gang
Offenses Statute, and we vacate the judgments in Counts 13 through Count 16. The
Defendant’s underlying convictions for aggravated robbery remain intact and revert to
Class B felonies in the absence of the gang enhancement.

At sentencing, the trial court engaged in extensive findings regarding the
Defendant’s criminal history and the respective enhancement and mitigating factors. The
trial court specifically noted that its determination regarding the consecutive or concurrent
nature of the Defendant’s sentence would be impacted should the Defendant’s convictions
be reduced to Class B felonies on appeal. Accordingly, we remand to the trial court for
resentencing. The Defendant also contends that the Criminal Gang Offenses Statute
violates his constitutional rights to due process and expressive association. Because we
have determined that the State presented insufficient evidence for the statute to be applied
to the Defendant, consideration of this issue is not required for determination of the
case. See, e.g., Watts v. Memphis Transit Management Co., 462 S.W.3d 495, 498 (Tenn.
1971); Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995); State v. Wilson, No. E2019-
01864-CCA-R3-CD, 2021 WL 1227798, at *14 (Tenn. Crim. App. Mar. 31, 2021), perm.
appeal denied (Aug. 6, 2021). Accordingly, we decline to address the constitutional
questions raised by the Defendant in this appeal.

CONCLUSION

Based upon the above reasoning and analysis, we reverse and vacate the judgments
of conviction in counts 13 through 16 and remand for resentencing in this matter.

____________________________________
CAMILLE R. MCMULLEN, JUDGE
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