State of Tennessee v. Broderick Devonte Fayne, 2014 Tenn. LEXIS 872

Background

On July 14, 2011, two men forced entry into a Covington home; one pointed a gun at a 14‑year‑old victim. Defendant Fayne was later identified by a codefendant (Lewis) and gave a written statement admitting participation in the burglary but denying use or possession of a weapon.
Fayne and Lewis were indicted for aggravated burglary and employing a firearm during a dangerous felony; Lewis pled guilty to burglary and testified for the State; the State dismissed the firearm charge against Lewis.
At trial the jury convicted Fayne of aggravated burglary and employment of a firearm; the trial court imposed consecutive sentences totaling nine years.
Fayne argued on appeal the trial court erred by (1) refusing to instruct the jury that possession of a firearm during a dangerous felony is a lesser included offense of employment of a firearm, and (2) refusing a special instruction defining actual and constructive possession for the employment charge.
The Court of Criminal Appeals affirmed; the Tennessee Supreme Court granted permission to consider whether possession is a lesser included offense and whether the special possession instruction was required.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Fayne)	Held
Whether possession of a firearm during commission of a dangerous felony is a lesser included offense of employment of a firearm	N/A (State contended issue was waived for failure to request in writing)	Possession under § 39‑17‑1324(a) is a lesser included offense of employment under § 39‑17‑1324(b) and the jury should have been instructed accordingly	Yes; possession is a lesser included offense of employment under the statutory‑elements test in § 40‑18‑110(f)(1)
Whether Fayne preserved the lesser‑included issue by timely written request	State: Fayne waived by failing to submit a written, specific request identifying the lesser offense	Fayne argued the court should have instructed regardless (or that omission was plain error)	Waiver: Fayne failed to make the statutorily required written request; issue waived for plenary review
Whether plain error review supplies relief for the omitted lesser‑included instruction	N/A	Omission was plain error because omission affected substantial rights	No; plain error not shown—omitting the instruction did not breach a clear and unequivocal rule of law given lack of prior authority recognizing the relationship
Whether the trial court erred by refusing a special instruction defining actual and constructive possession for the employment charge	N/A	The jury should have been instructed on actual/constructive possession because employment necessarily includes possession	No; the pattern instruction defining "employ" as "to make use of," together with the criminal responsibility instruction, fairly and adequately submitted the law to the jury; special instruction not required

Key Cases Cited

State v. Shaw, 37 S.W.3d 900 (Tenn. 2001) (constructive possession definition)
State v. Robinson, 400 S.W.3d 529 (Tenn. 2013) (actual vs. constructive possession discussion)
State v. Page, 184 S.W.3d 223 (Tenn. 2006) (preservation of lesser‑included instruction; waiver rule)
State v. Burns, 6 S.W.3d 453 (Tenn. 1999) (framework for lesser‑included offenses)
State v. Ely, 48 S.W.3d 710 (Tenn. 2001) (statutory‑elements test explained)
State v. Pickett, 211 S.W.3d 696 (Tenn. 2007) (use of ordinary meaning to interpret statutory terms)
State v. Dorantes, 331 S.W.3d 370 (Tenn. 2011) (right to correct and complete jury charge)
State v. Thompson, 519 S.W.2d 789 (Tenn. 1975) (duty to give comprehensive instructions)
State v. Ducker, 27 S.W.3d 889 (Tenn. 2000) (definition of elements in jury charge)
State v. Cravens, 764 S.W.2d 754 (Tenn. 1989) (instruction on elements required)
State v. Vann, 976 S.W.2d 93 (Tenn. 1998) (special instruction unnecessary if general charge fairly submits law)
State v. Hanson, 279 S.W.3d 265 (Tenn. 2009) (assessing adequacy of instructions as a whole)
State v. Banks, 271 S.W.3d 90 (Tenn. 2008) (standard for reviewing lesser‑included instruction omission)