State v. Carson

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE FILED
August 4, 1997
FOR PUBLICATION
Cecil Crowson, Jr.
Appellate C ourt Clerk
Filed: August 4, 1997

STATE OF TENNESSEE, )
)
Appellee, ) KNOX CRIMINAL
)
)
Vs. ) HON. MARY BETH LEIBOWITZ,
) JUDGE
)
JUBAL CARSON, )
)
Appellant. ) No. 03-S-01-9606-CR-00063

For Appellant: For Appellee:

Christopher Van Riper John Knox Walkup
Stuart & Van Riper Attorney General & Reporter
Clinton, Tennessee
Michael E. Moore
Solicitor General

Michael J. Fahey, II
Assistant Attorney General
Nashville, Tennessee

Randall E. Nichols
District Attorney General

Jo Helm
Leon Franks
Assistant District Attorneys General
Knoxville, Tennessee

OPINION

AFFIRMED. ANDERSON, J.
 The issue presented by this appeal is whether the defendant, who

assisted his co-defendants in committing an aggravated robbery, was criminally

responsible under Tenn. Code Ann. § 39-11-402(2) for additional offenses

committed by them.

The defendant, who planned the store robbery, furnished guns and inside

information to his co-defendants but waited in the car outside the store, was

convicted of aggravated robbery, aggravated assault, and felony reckless

endangerment.1 The Court of Criminal Appeals affirmed the convictions, finding

that the defendant was criminally responsible for the acts of his co-defendants.

After reviewing the applicable law and the evidence, we conclude that the

defendant was criminally responsible for the acts of his co-defendants under

Tenn. Code Ann. § 39-11-402(2) because, in our view, the common law rule

(that a defendant who aids and abets a co-defendant in the commission of a

criminal act is liable not only for that crime but also for any other crime committed

by the co-defendant as a natural and probable consequence of the crime

originally aided and abetted) is applicable under the statute. W e therefore affirm

the judgment of the Court of Criminal Appeals.

BACKGROUND

The defendant, Jubal Carson, and two co-defendants, Aaron Gary and

Alton Stover, met to discuss robbing “Jim and Dave’s TV Repair” store in

Knoxville, Tennessee. Carson, who had been in the store before, described the

layout of the store to the co-defendants and told them that a large sum of money

could be found in a drawer in a back room. Carson gave a handgun to each of

1
The defendant, a Range III persistent offender, was sentenced to 30 years for the
aggravated robbery, 15 years for each of the aggravated assaults, and 6 years for the reckless
endangerment. The sentences for aggravated assault are to run concurrently; the sentences for
the remaining offenses are to run consecutively, for an effective term of 51 years in the
Department of Correction.

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the co-defendants and the three men drove to the scene. While Carson waited

in the car, Gary and Stover entered the store under the pretense of having

repairs made to a portable stereo system.

Once inside the store, the co-defendants held two employees, James

Adams and Dave McGaha, at gunpoint and forced them into a room in the rear

of the building. Both employees were searched and $130 was taken from

Adams. Adams and McGaha were ordered onto a couch while Gary and Stover

searched the room. After binding Adams and McGaha with telephone cord, Gary

and Stover closed the office door, told the victims not to attempt to free

themselves, and then fired three shots through the office door, narrowly missing

them. As they left the store, Gary and Stover were confronted by police officers.

To their surprise, neither the car, nor the defendant Carson, was in the parking

lot. Gary and Stover fled from the scene on foot, exchanging gunfire with

officers. All three men were later found and arrested.

The lightning quick police response to the robbery was apparent later.

Carson and his co-defendants did not realize that “Jim and Dave’s TV Repair”

store was an undercover sting operation run by the Knoxville Police Department.

Unbeknownst to them, the co-defendants’ actions were monitored by police

officers and recorded on video tape located in the store.

The defendant Carson was charged, along with his co-defendants Gary

and Stover. The co-defendants pled guilty and testified at trial against the

defendant.2 Carson did not testify; however, he made a statement to police

admitting that he drove the co-defendants to the scene but denying that he knew

a robbery would occur. He said he believed the co-defendants were going to the

2
Gary pled guilty to attem pted first-d egree m urder an d was s entenc ed to 23 ye ars.
Stover pled guilty to aggravated kidnapping and was sentenced to 21 years.

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store to sell the guns and that he was across the street from the store at a

Hardee’s restaurant when he heard shots being fired.

The jury found the defendant Carson guilty of aggravated robbery,

aggravated assault against Adams, aggravated assault against McGaha, and

felony reckless endangerment.3 The Court of Criminal Appeals affirmed.

The defendant argues on appeal that the evidence was insufficient to

sustain the convictions because he lacked the culpable mental state for the

offenses committed by Gary and Stover. The State insists that the defendant

was criminally responsible for the aggravated robbery, as well as the additional

offenses, because they were a natural and probable consequence of the

robbery.

We granted this appeal to determine the scope of criminal responsibility

for the acts of another under Tenn. Code Ann. §§ 39-11-401 and -402.

CRIMINAL RESPONSIBILITY

As part of the Criminal Sentencing Reform Act of 1989, the Legislature

determined that “a person is criminally responsible as a party to an offense if the

offense is committed . . . by the conduct of another for which the person is

criminally responsible,” and that a person is criminally responsible for an offense

committed by another if “acting with intent to promote or assist the commission

of the offense, or to benefit in the proceeds or results of the offense, the person

solicits, directs, aids, or attempts to aid another person to commit the

offense. . . .” Tenn. Code Ann. §§ 39-11-402 and -402(2)(1991).

3
The jury also convicted the defendant of aggravated kidnapping, which the trial court set
aside post-trial under State v. Anthony, 817 S.W .2d 299 (Tenn. 1991).

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 The Sentencing Commission comments to Tenn. Code Ann. § 39-11-401

explain that the statute

is a restatement of the principles of Tennessee common law which
provide equal criminal liability for principals, accessories before the
fact, and aiders and abettors. The revised code does not utilize
these terms; instead, it provides that any person may be charged
as a party if he or she is criminally responsible for the perpetration
of the offense.

(Emphasis added). Similarly, the Commission comments to Tenn. Code Ann.

§ 39-11-402(2) indicate that this portion of the statute sets forth the conduct of

defendants formerly known as accessories before the fact and aiders and

abettors.

The Criminal Sentencing Reform Act of 1989 also provides that the

foregoing statutes “be construed according to the fair import of their terms,

including reference to judicial decisions and common law interpretations, to

promote justice, and effect the objectives of the criminal code.” See Tenn. Code

Ann. § 39-11-104. The Sentencing Commission comments to the statute explain

the legislative intent as follows:

The commission intends the language of the sections themselves
to be an authoritative statement of the law. Since some of the
terms utilized have been clearly defined by judicial decisions, those
decisions and common law interpretations should be consulted
where necessary. . . .The comments in this code are intended to
explain its provisions and to aid in their interpretation.

Accordingly, it is evident that Tenn. Code Ann. § 39-11-402(2), which

states that one may be criminally responsible if he or she “solicits, directs, aids or

attempts to aid another person to commit [an] offense,” is derived from common

law. An aider and abettor, for instance (sometimes referred to as a principal in

the second degree), was one who advised, counseled, procured, or encouraged

the principal to commit the offense and was present at the scene of the crime.

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Flippen v. State, 211 Tenn. 507, 365 S.W.2d 895 (1963). The common law

requirement that the defendant be present at the scene included “constructive”

presence, which

does not require a strict, actual, immediate presence, such a
presence as would make him an eye or ear witness of what occurs,
for if the abettor, at the time of the commission of the crime, were
assenting to it, and in a situation where he might render some aid
to the perpetrator, ready to give it if necessary, according to an
appointment or agreement with him for that purpose, he would, in
the judgment of the law, be present and aiding in the commission
of the crime. . . .

Cavert v. State, 158 Tenn. 531, 14 S.W.2d 735, 738 (1929).

Criminal responsibility for another under Tenn. Code Ann. § 39-11-402(2)

also requires that a defendant act with a culpable mental state, specifically, the

“intent to promote or assist the commission of the offense or to benefit in the

proceeds or results of the offense.” A person acts with intent as to the nature or

result of conduct when it is that person’s conscious objective or desire to engage

in the conduct or cause the result. Tenn. Code Ann. § 39-11-302(a)(1991); see

also State v. Maxey, 898 S.W.2d 756, 757 (Tenn. Crim. App. 1994). This

statutory language is also similar to common law:

In order to aid and abet another to commit a crime, it is necessary
that [the] accused in some sort associate himself with the venture,
act with knowledge that an offense is to be committed, and share in
the criminal intent of the principal in the first degree; the same
criminal intent must exist in the minds of both.

See Jenkins v. State, 509 S.W.2d 240, 245 (Tenn. Crim. App. 1974). In other

words, under common law, a defendant “must knowingly, voluntarily, and with

common intent unite with the principal offenders in the commission of the crime.”

State v. Foster, 755 S.W.2d 846, 848 (Tenn. Crim. App. 1988).

Although not specifically addressed in the statute, the scope of criminal

responsibility for accessories before the fact and aiders and abettors under the

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common law was addressed by this Court in Key v. State, 563 S.W.2d 184, 186

(Tenn. 1978). The Key court stated the general common law rule as follows:

The common purpose need not be to commit the particular crime
which is committed; if two persons join in a purpose to commit a
crime, each of them, if actually or constructively present, is not only
guilty as a principal, if the other commits that particular crime, but
he is also guilty of any other crime committed by the other in
pursuance of the common purpose, or as a natural or probable
consequence thereof.

(Emphasis added).

This common law principle was illustrated in the later Tennessee case of

State v. Grooms, 653 S.W.2d 271 (Tenn. Crim. App. 1983). The female

defendant and two armed co-defendants carried out the robbery of a pharmacy

by forcing employees and customers into a back room, where they bound and

robbed them. During the robbery, two additional customers entered the store

who were shot by a co-defendant. As the defendant and co-defendants fled the

scene, one of the co-defendants fired shots at the pursuing officers. The

defendant was convicted of armed robbery, assault, and assault with intent to

murder. In affirming the convictions, the Court of Criminal Appeals said:

The crimes of which defendant says that she had no intent, were all
committed as a part of the common purpose of committing these
robberies at the drugstore and effecting an escape. Although she
may not have had the particular intent to commit some of these
offenses, they were natural and probable consequences of the
common purposes of robbery with firearms.

Id., at 275 (emphasis added).

The “natural and probable consequence” rule has been widely accepted

and applied by other jurisdictions. 4 It is based on the recognition that “aiders and

4
See e.g., United States v. Andrews, 75 F.3d 552, 556 (9th Cir.), cert. denied, 116 S.C t.
1890, 13 5 L.Ed.2 d 183 (1 996); Unite d Sta tes v. Pow ell, 929 F.2 d 724, 72 6 (D.C. C ir. 1991); Roy
v. United States, 652 A.2d 1098, 11 05 (D.C . App. 199 5); State v. Tra ckw ell, 458 N.W.2d 181, 184
(Neb. 1 990); Shepp ard v. State , 538 A.2d 773, 774 (Md. 19 88); State v. Lins cott, 520 A.2d 1067,
1069 (M e. 1987) ; State v. Marchesano, 783 P.2d 247, 253 (Ariz. App. 1 989); Karlos v. S tate, 476

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abettors should be responsible for the criminal harms they have naturally,

probably and foreseeably put in motion.”

The California Supreme Court has expressed it this way: “[A] person who

aids and abets a confederate in the commission of a criminal act is liable not

only for that crime (the target crime), but also for any other offense (nontarget

crime) committed by the confederate as a ‘natural and probable consequence’ of

the crime originally aided and abetted.” The rule frequently has been applied to

offenses that are a natural and probable consequence of a planned armed

robbery. People v. Prettyman, 926 P.2d 1013,1015, 1019, 1021 (Cal. 1996); see

also State v. Grooms, 653 S.W.2d at 275; State v. Marchesano, 783 P.2d at

253; Sheppard v. State, 538 A.2d at 775.5 A “‘natural and probable

consequence’ in the ‘ordinary course of things’ presupposes an outcome within a

reasonably predictable range.” Roy v. United States, 652 A.2d 1098, 1105 (D.C.

App. 1995).

We recognize, as have other courts, that the common law rule has been

subject to criticism by some commentators, primarily for being too broad. See

LaFave & Scott, Substantive Criminal Law, § 6.8(b), p. 158 (1987 & Supp. 1996);

Mod. Pen. Code § 2.06 (1985). It continues, however, to be applied by the

majority of courts under a variety of statutes governing criminal responsibility,

and a number have observed that the doctrine is an established rule of American

jurisprudence. Moreover, we note that many states have codified the common

N.E.2d 819, 822 (Ind. 1985 ); State v. Ivy, 350 N.W .2d 622, 6 28 (W is. 1984); People v. Kessler,
315 N .E.2d 29 , 32 (Ill.), cert. denied, 419 U.S. 1054 (1974).

5
The principle also has been applied to accomplices under the felony murder doctrine:
“A defendant who is a willing and active participant in a robbery becomes accountable for all of the
consequences flowing from the robbery and may be convicted of first-degree murder where a co-
perpetrator of the felony is the actual killer.” State v. Middlebrooks, 840 S.W.2d 317, 336 (Tenn.
1992); Dupe s v. State , 209 Tenn. 506, 512, 354 S .W.2d 45 3, 456 (1962).

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law rule.6 In our view, the rule continues to be a viable principle underlying

criminal responsibility.

As we have frequently observed, the Legislature is presumed to know the

existing state of the law when it enacts a statute. Owens v. State, 908 S.W.2d

923, 926 (Tenn. 1995). Moreover, the Legislature has said that statutes must

“be construed according to the fair import of their terms, including reference to

judicial decisions and common law interpretations. . . .” Tenn. Code Ann. § 39-

11-104.

In our view, the Sentencing Commission comments to Tenn. Code Ann.

§§ 39-11-401 and -402 clearly indicate the legislative intent that the statutory

provisions embrace the common law principles governing aiders and abettors

and accessories before the fact. The statutory predecessors to these provisions

likewise embraced the common law definitions. See Tenn. Code Ann. § 39-1-

301 (1982)(“any person who shall feloniously move, incite, counsel, hire,

command, or procure any other person to commit a felony is an accessory

before the fact.”); Tenn. Code Ann. § 39-1-303 (1982)(“all persons present,

aiding and abetting, or ready and consenting to aid and abet, in any criminal

offense, shall be deemed principal offenders and punished as such.”).

Accordingly, we conclude that the natural and probable consequence rule, which

derives from the common law and has been applied in our case law, as well as in

the case law of a majority of jurisdictions, is applicable under Tenn. Code Ann.

§§ 39-11-401 and -402.

Applying the foregoing principles to the present case, we have determined

that the evidence was sufficient for the jury to find that the defendant aided and

6
See Iowa Code Ann. § 703.2; Kan. Stat. Ann. § 21-3205(2); Me. Rev. Stat. Ann. tit. 17-
A, § 57; M inn. Stat. An n. § 609.0 5; W is. Stat. Ann . § 939.05 .

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assisted in the offense of aggravated robbery, which requires evidence of an

intentional theft from the person of another by violence and by placing the

victims in fear with the use of a deadly weapon. Tenn. Code Ann. §§ 39-13-

401(a) and -402(a)(1). The defendant planned the robbery, described the layout

of the store, supplied weapons, and accompanied the co-defendants to the

scene, where he was to wait in the car. The co-defendants entered the store,

held the victims at gunpoint, and took money. Accordingly, there was sufficient

evidence from which the jury could find that the defendant solicited and aided in

the offense with the intent to promote and benefit from its commission.

Likewise, we conclude that the evidence was sufficient to find that the

defendant was criminally responsible for the aggravated assaults committed

against the victims inside the store and the reckless endangerment committed

when the co-defendants fled from the scene.7 The defendant initiated the

robbery, supplied weapons, and was present at or near the scene of the offense.

The aggravated assaults and the reckless endangerment were committed by the

co-defendants with the weapons supplied by the defendant and in furtherance of

the robbery. The offenses were the natural and probable consequence of the

robbery that was initiated, directed, and aided by the defendant. Accordingly, we

conclude that the evidence was sufficient to sustain these convictions under

Tenn. Code Ann. § 39-11-402(2).

CONCLUSION

We conclude that the natural and probable consequence rule which

derives from the common law is applicable under Tenn. Code Ann. §§ 39-11-401

7
The aggravated assault against Adams required an intentional or knowing act causing
the vic tim to reas ona bly fea r imm inent bodily in jury, as well as the u se or displa y of a d ead ly
weapon. Tenn. Code Ann. §§ 39-13-101(a)(2) & -102(a)(1)(B). The aggravated assault against
McG aha requ ired a n inte ntion al, kn owin g or re ckle ss a ct ca usin g bod ily injury to the vic tim, a s we ll
as the us e or displa y of a dead ly weapon . Tenn. C ode An n. §§ 39- 13-101 (a)(1) & -1 02(a)(1 )(B).
The felon y reck less enda nge rm ent re quire d rec kles s co ndu ct tha t plac ed an othe r pers on in
imminent danger of death or serious bodily injury, and the use of a deadly weapon. Tenn. Code
Ann. § 39-13-103(a) & (b).

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and -402, and that the evidence was sufficient to find that the defendant, having

directed and aided in the aggravated robbery with the intent to promote or benefit

from its commission, was criminally responsible for all of the offenses committed

by his co-defendants, to wit: aggravated assault and felony reckless

endangerment.

Accordingly, the judgment of the Court of Criminal Appeals is affirmed.

The costs of this appeal are taxed to the defendant-appellant, Jubal Carson.

________________________________
RILEY ANDERSON, JUSTICE

CONCUR:

Birch, C.J.
Drowota, Reid, and Holder, JJ.

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