STATE OF TENNESSEE v. CHRISTOPHER OBERTON CURRY, JR.
No. W2022-00814-SC-R11-CD
IN THE SUPREME COURT OF TENNESSEE AT JACKSON
January 8, 2025
April 3, 2024 Session;
Christopher Oberton Curry, Jr. (“Defendant“) sought this Court‘s review of his 2022 conviction for unlawful possession of a firearm after having been convicted of a felony crime of violence. Pursuant to
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals Reversed in Part; Case Remanded to the Trial Court
ROGER A. PAGE, J., delivered the opinion of the Court, in which HOLLY KIRBY, C.J., and JEFFREY S. BIVINS, SARAH K. CAMPBELL, AND DWIGHT E. TARWATER, JJ., joined.
Brennan M. Wingerter, Assistant Public Defender - Appellate Director (on appeal); Brian D. Wilson, Assistant Public Defender; Jeremy B. Epperson, District Public Defender; and Parker O. Dixon, Assistant District Public Defender (at trial), for the appellant, Christopher Oberton Curry, Jr.
Jonathan Skrmetti, Attorney General and Reporter; Andree Sophia Blumstein, Solicitor General; Andrew C. Coulam, Senior Assistant Attorney General; Edwin Alan Groves, Jr., Assistant Attorney General; Jody S. Pickens, District Attorney General; and Lee R. Sparks, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. BACKGROUND2
On August 20, 2021, Officer Zachary Cobb from the Jackson Police Department (“JPD“) attempted to perform a routine traffic stop after he observed a white Honda Accord fail to stop at a stop sign and illegally pass another vehicle. The officer activated his blue lights and pursued the subject, but the driver, who was later identified as Defendant, failed to yield. Defendant eventually crashed his vehicle and fled on foot into a wooded area.
Officer Cobb was unable to apprehend Defendant, instead returning to the white Honda to search it for identifying information. Inside, the officer found Defendant‘s cell phone and wallet, which contained Defendant‘s social security card. Meanwhile, another officer joined Officer Cobb at the crash scene with a police dog intending to track Defendant. The search for Defendant was unsuccessful; however, the officers recovered a 9-millimeter handgun discarded on the ground in the woods. The weapon‘s magazine with ammunition was discovered approximately thirty yards away.
Two and a half weeks later, on September 7, 2021, JPD Investigator Ashley Robertson assisted in executing an arrest warrant on Defendant. Defendant was arrested in the driveway of his residence. During the arrest, he admitted to the investigator that he was the driver of the vehicle during the August 20th incident. Defendant further added that he fled from Officer Cobb because he had a handgun that he knew he could not possess as a convicted felon.
A Madison County grand jury indicted Defendant for being a convicted felon in possession of a firearm (Count 1), evading arrest while operating a motor vehicle
The second portion of the bifurcated proceeding, which is the subject of the present appeal, concerned Count 1—Defendant‘s charge of unlawful possession of a firearm after having been convicted of a felony crime of violence.3 Therein, the State introduced a certified judgment of conviction for a July 2017 conviction for robbery, a Class C felony. The certified judgment of conviction was marked as Exhibit 8, and the document reflects that Defendant was originally charged with aggravated robbery, a Class B felony, before pleading guilty to the lesser charge. Also, at the bottom of the document, under “Special Conditions,” it states: “4. Def. weapon is forfeited to the law enforcement agency that seized it.”
At the close of proof, after the second part of the bifurcated proceedings, the trial court provided the jury with both verbal and written instructions. The court outlined the elements of the offense, stating as follows:
For you to find the defendant guilty of this offense, the state must have proven beyond a reasonable doubt the existence of the following essential elements:
(1) that the defendant had been convicted of ROBBERY; and
(2) that the defendant, after such felony conviction, possessed a firearm; an
(3) that the defendant acted either intentionally or knowingly; and
(4)(b) that the conviction was for [a felony crime of violence].4
Although the trial court defined for the jury many of the important terms—such as “firearm,” “possession,” and “intentionally“—it did not define “crime of violence.” Notably, the trial court‘s final verbal instructions to the jury included the following language: “Members of the jury, you must now determine again the Defendant‘s guilt or innocence as to Count 1, convicted felоn in possession of a firearm after being convicted of a felony crime of violence, that being robbery . . . .”
The court ordered the sentences for Counts 2-6 to run concurrently to the ten-year sentence in Count 1, which resulted in an effective sentence of ten years to be served in the Tennessee Department of Correction. The trial court denied Defendant‘s subsequent motion for a new trial.
Defendant appealed, asserting before the Court of Criminal Appeals that the evidence at trial was insufficient to sustain his conviction for a Class B felony in Count 1. Defendant primarily argued6 that the State failed to establish that his predicate felony (robbery) was a crime of violence and sought either the dismissal of Count 1 or, alternatively, a reduction of the charge from a Class B to a Class E felony. In addition, after oral argument, the intermediate court directed the parties to file supplemental briefs “to address the question of whether the jury instructions properly defined the term ‘crime of violence.‘” Order, State v. Curry, No. W2022-00814-CCA-R3-CD (Tenn. Crim. App. Mar. 9, 2023).
The Court of Criminal Appeals affirmed Defendant‘s conviction in Count 1 for a Class B felony. State v. Curry, 2023 WL 3807168, at *7. The intermediate court determined robbery is a crime of violence and the evidence presented at trial was sufficient to sustain Defendant‘s conviction. Id. at *5. Finally, despite оrdering supplemental briefing on the issue, the Court of Criminal Appeals stated in its opinion that Defendant had waived review of the jury instructions under a plain error analysis. Id. at *6-7.
Defendant‘s ensuing application for permission to appeal to this Court again concerned only his conviction for unlawful possession of a firearm after having been convicted of a felony crime of violence. We granted Defendant‘s application to consider whether robbery is encompassed within the statutory definition of “crime of violence” and, if so, whether the evidence was sufficient to support Defendant‘s conviction for unlawful possession of a firearm after having been convicted of a felony crime of violence.
II. STANDARD OF REVIEW
This appeal reaches us in the context of a review for sufficiency of the evidence. To determine whether the evidence is sufficient to support a conviction, an appellate court asks
“whether, after reviewing the evidence in the light most favorable to the State, any rational trier of
Our review for sufficiency of the evidence in this case also requires this Court to еngage in statutory construction. Statutory construction is a question of law; therefore, we review this question de novo, with no presumption of correctness. State v. Welch, 595 S.W.3d 615, 621 (Tenn. 2020).
III. ANALYSIS
The present appeal concerns Defendant‘s admitted unlawful possession of a firearm. At issue is whether the statutory language requires Defendant‘s firearm conviction to be punished as a Class E felony or elevated to a Class B felony.
Under
“Crime of violence” includes any degree of murder, voluntary manslaughter, aggravated rape, rape, rape of a child, aggravated rape of a child, aggravated sexual battery, especially aggravated robbery, aggravated robbery, burglary, аggravated burglary, especially aggravated burglary, aggravated assault, kidnapping, aggravated kidnapping, especially aggravated kidnapping, carjacking, trafficking for commercial sex act, especially aggravated sexual exploitation, felony child abuse, and aggravated child abuse[.]
A.
Here, the State sought Defendant‘s conviction for a Class B felony based on Defendant‘s prior robbery conviction, but notably, robbery is not one of the enumerated offenses in the statutory definition. Thus, the first step of our review is to engage in statutory construction to determine whether the statutory definition of “crime of violence” was intended to be an exhaustive list or merely illustrative. If the list is exhaustive, as Defendant argues, his Class B firearm conviction must fail as a matter of law. Conversely, if the legislature intended the list to be merely illustrative, we must consider whether robbery is a “crime of violence” under
When еngaging in statutory interpretation, “well-defined precepts” apply. State v. Frazier, 558 S.W.3d 145, 152 (Tenn. 2018) (quoting Tenn. Dep‘t of Corr. v. Pressley, 528 S.W.3d 506, 512 (Tenn. 2017)); State v. Howard, 504 S.W.3d 260, 269 (Tenn. 2016) (quoting State v. McNack, 356 S.W.3d 906, 908 (Tenn. 2011)). “The most basic principle of statutory construction is to ascertain and give effect to the legislative intent without unduly restricting or expanding a statute‘s coverage beyond its intended scope.” Howard, 504 S.W.3d at 269 (quoting Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995)); see Carter v. Bell, 279 S.W.3d 560, 564 (Tenn. 2009) (citing State v. Sherman, 266 S.W.3d 395, 401 (Tenn. 2008)). In construing statutes, Tennessee law provides that courts are to “avoid a construction that leads to absurd results.” Tennessean v. Metro. Gov‘t of Nashville, 485 S.W.3d 857, 872 (Tenn. 2016) (citing Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 527 (Tenn. 2010)). We look to “the language of the statute, its subject matter, the object and reach of the statute, the wrong or evil which it seeks to remedy or prevent, and the purpose sought to be accomplished in its enactment.” Spires v. Simpson, 539 S.W.3d 134, 143 (Tenn. 2017) (quoting State v. Collins, 166 S.W.3d 721, 726 (Tenn. 2005)). Courts seek a reasonable interpretation “in light of the purposes, objectives, and spirit of the statute based on good sound reasoning.” Beard v. Branson, 528 S.W.3d 487, 496 (Tenn. 2017) (quoting Scott v. Ashland Healthcare Ctr., Inc., 49 S.W.3d 281, 286 (Tenn. 2001)). The words in a statute “must be given their natural and ordinary meaning in the context in which they appear and in light of the statute‘s general purpose.” Coffee Cnty. Bd. of Educ. v. City of Tullahoma, 574 S.W.3d 832, 839 (Tenn. 2019) (quoting Mills v. Fulmarque, Inc., 360 S.W.3d 362, 368 (Tenn. 2012)).
In its consideration оf this question, the Court of Criminal Appeals determined that the statutory list is illustrative, citing this Court‘s opinion in State v. Marshall, 319 S.W.3d 558 (Tenn. 2010). See Curry, 2023 WL 3807168, at *4. In Marshall, we stated, “When a statutory definition states that it ‘includes’ specific items, we have held that the ‘enumerated items are illustrative, not exclusive.‘” Marshall, 319 S.W.3d at 561 (quoting Gragg v. Gragg, 12 S.W.3d 412, 415 (Tenn. 2000)). In Gragg v. Gragg, a divorce proceeding, we considered the statutory definition of “marital property,” which also
contained the word “includes” followed by a list of examples. We explained: “[T]he property interests identified in Section 36-4-121(b)(1)(B) are simply illustrative of the types of intangible property interests that may be classified as marital property. Other types of intangible property interests which are similar to those enumerated in the statute should also be considered marital property.” 12 S.W.3d at 415 (citation omitted). As the Court of Criminal Appeals also emphasized in this case, other panels of the intermediate appellate court have found the statutory definition of “crime of violence” to contain an illustrative list. See, e.g., State v. Moses, No. E2021-00231-CCA-R3-CD, 2022 WL 1038383, at *4 (Tenn. Crim. App. Apr. 6, 2022), no perm. app. filed; State v. Theus, No. W2016-01626-CCA-R3-CD, 2017 WL 2972231, at *8 (Tenn. Crim. App. July 12, 2017), perm. app. denied, (Tenn. Nov. 12, 2017). But see State v. Dean, No. W2018-01363-CCA-R3-CD, 2020 WL 1899612, at *14 (Tenn. Crim. App. Apr. 17, 2020) (reversing the defendant‘s conviction for unlawful possession of a firearm by a convicted felon, noting that “[r]eckless endangerment with a deadly weapon is not specifically included in the list of enumerated offenses that meet the definition of a ‘crime of violence’ in Tennessee Code Annotated section 38-17-1301(3)“).
In some jurisdictions, like Tennessee, the statutory definition of crime of violence conviction is incorporated as an element of an unlawful possession offense. In other jurisdictions, a prior “crime of violence” conviction is applied at sentencing to enhance a baseline unlawful possession conviction. In both procedural postures, attempts to define “crime of violence” have proven diffiсult and have resulted in significant federal and state litigation.
In the absence of a model definition for crime of violence, three common clauses used in such definitions legislatively emerged - “elements clause,” “enumerated offenses clause,” and “residual clause.”8 An elements clause commonly defines a crime of violence as a felony offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.9 An enumerated offenses clause provides a list of specific criminal offenses determined by the legislative body to be crimes of violence that merit enhanced punishment.10 Finally, a residual clause typically defines a crime of violence as a felony offense that by its nature involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.11
legislatures combined an enumerated offenses clause with additional language akin to a residual clause.13 These statutes authorize a court to look beyond the specific enumerated offenses list to consider offenses that meet the general definition provided in the residual clause. Finally, most jurisdictions, including Tennessee, have adopted an enumerated offenses clause to define crime of violence.14 The enumerated offenses clause specifically identifies the legislatively-chosen offenses that are “crimes of violence” as a matter of law. Thus, in the context of felon-in-possession laws and the corresponding definition оf “crime of violence,” it is a close question under the Carcieri and Dong line of cases, supra, whether “includes” followed by specific enumerated offenses (instead of general definitions) is indeed a term of limitation.
Ultimately, we decline this opportunity to expand our jurisprudence by adopting the limiting interpretation of “includes” in this setting. Instead, we adhere to our established precedent and agree with the Court of Criminal Appeals that the list of felony offenses in the statutory definition was intended to be illustrative. We are persuaded by the legislature‘s use of the word “includes” in
B.
Next, we consider whether robbery, which is not specifically mentioned on the enumerated offenses list, is a crime of violence under our statutory definition. Although this Court has not previously examined this question, other panels of the intermediate appellate court have assessed the validity of convictions for unenumerated crimes of violence, albeit without a fulsome discussion.
In State v. Theus, the defendant‘s prior conviction was for facilitation of first degree murder, which is not an enumerated offense in
In State v. Moses, the defendant‘s prior conviction was for aggravated burglary, which was not one of the enumerated crimes of violence at the time. 2022 WL 1038383, at *1. The Moses panel noted that burglary was on the statutory list and, citing Theus, the panel reasoned: “In the same way, common sense dictates that if burglary is a crime involving violence, aggravated burglary is also a crime involving violence.” Id. at *4 (citation omitted). This panel of the intermediate court also concluded that the judgment of conviction for the defendant‘s prior felony was sufficient evidence to support the “crime of violence” element of his firearm conviction. Id. at *5.
Notably, although the prior felonies discussed in Theus and Moses were not specifically identified in the statutory definition, the prior felonies concerned degrees (of offense or culpability) of predicate felonies that are contained on the crime of violence list. Conversely, in State v. Dean, a different panel of the Court of Criminal Appeals overturned the defendant‘s unlawful possession of a firearm conviction where the predicate felony was for reckless endangerment. Dean, 2020 WL 1899612, at *13-14. Like the prior felonies in the other discussed cases, reckless endangerment is not an enumerated offense in
enumerated list: “Only those offenses specifically enumerated in this section are considered violent offenses.”
assault and had threatened a woman with a knife, the Dean panel found the evidence was insufficient to support the unlawful possession of a firearm charge because
the State failed to present any evidence from which the jury could have concluded that the Defendant‘s reckless endangerment with a deadly weapon conviction was a felony conviction for a crime of violence, an essential element for the Defendant to be convicted of a violation of Tennessee Code Annotated section 39-17-1307 as charged in his indictment.
Id. at *14 (emphasis added).
Admittedly, our legislature has provided little insight into the criteria it used to select the enumerated offenses on the list.16 As we consider whether the list may
chose not to insert such clauses into the current “crime of violence” definition to guide consideration of unenumerated offenses. Third, and in further support of a narrow interpretation, a conviction for a felony crime of violence is an essential element of this unlawful possession offense. Dean, 2020 WL 1899612, at *14. In State v. Gentry, 538 S.W.3d 413, 420 (Tenn. 2017), this Court explained that “[t]he power to define criminal offenses . . . is vested in the legislature.”18
To that end, as we closely examine the legislature‘s dеfinition of crime of violence, we note that the enumerated list includes especially aggravated robbery and aggravated robbery as “crime[s] of violence” but does not include the lesser degree offense of robbery. As the State
under the general definition provided by the “crime of violence” statute). Our statute does not provide this option.
C.
Having concluded that rоbbery may be a crime of violence, the next step of our review is to determine who—judge or jury—makes the determination of whether a prior conviction for robbery qualifies as a “conviction for a felony crime of violence” for purposes of the unlawful possession of a firearm statute. Stated differently, is this a question of law for the court or a factual question for the jury?
Defendant argues that a properly instructed jury presented with certain facts must determine whether the prior robbery is a crime of violence. Defendant emphasizes that this inquiry is an essential element of the crime for which he was charged and must be proven beyond a reasonable doubt. He avers that by submitting only the judgment of conviction for robbery, the State failed to present sufficient evidence that robbery, in this instance, was a crime of violence.
The State argues that whether a prior robbery is a crime of violence is a question of law for the trial court, not the jury. The State cites to State v. Sims, 45 S.W.3d 1, 10-15 (Tenn. 2001), a capital case in which the State relied on the prior violent felony aggravating circumstance in seeking the death penalty when the prior felony was aggravated assault. In Sims, after determining that aggravated assault does not necessarily involve the use of violence, the trial court considered the underlying facts of the prior convictions as alleged in the indictment and affidavit of complaint. Id. at 10-11. After being satisfied that the elements of the prior convictions involved the use of violence, the court allowed the State to introduce the prior conviction of aggravated assault to the jury. Id. This Court affirmed, stating as follows:
In determining whether the statutory elements of a prior felony conviction involve the use of violence against the person for purposes of
§ 39-13-204(i)(2) , [the prior violent felony aggravating circumstance,] we hold thаt the trial judge must necessarily examine the facts underlying the prior felony if the statutory elements of that felony may be satisfied either with or without proof of violence.To hold otherwise would yield an absurd result, the particular facts of this case being an ideal example. A plain reading of the statute indicates that the legislature intended to allow juries to consider a defendant‘s prior violent crimes in reaching a decision during the sentencing phase of a first degree murder trial. The underlying facts of Sims‘s prior felony convictions involve his shooting two people sitting in a car. To
suggest, however, that a lesser degree offense of every enumerated offense may be a “crime of violence,” particularly if such lesser offense does not contain an element of violence.
hold that these prior convictions do not involve use of violence against a person would be an absurd result contrary to the objectives of the criminal code. We cannot adhere to a result so clearly opposing legislative intent.
Id. at 11-12. Thus, the State urges the Court to conclude that the question of whether the defendant‘s prior robbery conviction qualifies as a crime of violence is a legal one and to adopt the Sims procedure. This procedure would require the trial court to make the threshold legal determination in cases involving a charge of unlawful possession of a firearm by a convicted felon and to instruct the jury accordingly. The record indicates that this type of procedure is essentially what occurred in the present case. As noted, the trial court effectively concluded as a matter of law that the defendant‘s prior robbery conviction was a “conviction for a felony crime of violence.”
While at first blush, the procedural framework of Sims is appealing, the Sims procedure applies only in the capital sentencing phase to determine whether a particular aggravating сircumstance exists. However, as mentioned above, the situation before us involves an essential element of a criminal offense.21 The United States Supreme Court has long held that criminal convictions are constitutionally required “to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.” United States v. Gaudin, 515 U.S. 506, 510 (1995) (citing Sullivan v. Louisiana, 508 U.S. 275, 277-278 (1993)). After thorough consideration, we agree with Defendant and conclude that whether a particular robbery conviction is a crime of violence for purposes of
Moreover, because the jury is making the determination, and not the judge, the inquiry should focus on how the offense was actually committed in the case at hand, not how thе offense is ordinarily committed.22 Here, the record reflects that there was insufficient evidence to prove that Defendant‘s prior robbery was a crime of violence. The 2017 certified judgment of conviction, which contained minimal
the robbery, was the only evidence presented. Although a certified judgment of conviction ordinarily will be sufficient to establish a conviction for a felony specifically enumerated in
In this case, besides the actual fact of the conviction, the only information that can be gleaned from the certified judgment of conviction is that the prosecutor initially charged Defendant with aggravated robbery and that a weapon was seized as a condition of his guilty plea. This information alone, without context, is not enough for a reasonable jury to conclude that Defendant‘s 2017 robbery was a conviction for a crime of violence.
Because the State had ample opportunity at trial to present evidence that this robbery conviction was a “conviction for a felony crime of violence,” we conclude that it is proper to reduce Defendant‘s conviction in Count 1 from a Class B felony to a Class E felony. See Bandy v. State, 575 S.W.2d 278, 281 (Tenn. 1979).
D.
As a final matter, we must address jury instructions. In the Court of Criminal Appeals, Defendant raised the same issue discussed herein concerning the sufficiency of the evidence on Count 1. After oral argument, the intermediate court directed the parties to file supplemental briefs “to address the question of whether the jury instructions properly defined the term ‘crime of violence.‘” Despite ordering supplemental briefing on the issue, the Court of Criminal Appeals stated in its opinion that Defendant had waived review of the jury instructions. Curry, 2023 WL 3807168, at *7. It explained that “[a]fter reviewing the supplemental briefs and applying a plain error analysis, we conclude that no clear and unequivocal rule of law has been breached pertaining to this issue.” Id. In both his application for permission to appeal and appellate brief in this Court, Defendant raised the issue: “Whether the trial court‘s jury instructions were inaccurate and incomplete because they failed to provide either a statutory or jurisprudential definition for ‘felony crime of violence’ . . . .” Before this Court, he conceded that he failed to challenge the jury instruction before the trial court and admitted that the issue may be waived.
Nonetheless, we conclude the jury instruction issue is embedded within our review of this case for sufficiency of the evidence and statutory construction. See, e.g., State v. White, 362 S.W.3d 559, 581 (Tenn. 2012). Because we have determined that a jury must make the determination of whether a given robbery is a crime of violence for purposes of
this unlawful possession of a firearm offense, our decision will necessarily result in changes to the accompanying definition of “crime of violence” provided in the pattern jury instructions.
The Committee on Pattern Jury Instructions (Criminal) is certainly capable of the task. By way of guidance, however, we note that our decision does not alter the pattern instruction‘s recitation of the essential elements of the offense, including the element applicablе here - “that the conviction was for a felony crime of violence.” See T.P.I. - Crim. 36.05(a). Our
However, because robbery is not expressly included on the enumerated offenses list and because it may be cоmmitted by alternative means, the trial court must provide additional instruction. The jury instructions should inform the jury the State has alleged that a prior robbery conviction is a felony crime of violence, inform the jury of the essential elements of robbery, and explain to the jury that it must unanimously find that the prior robbery was in fact committed by the use of violence before it can find that the robbery conviction is a felony crime of violence.25
III. CONCLUSION
For the foregoing reasons, we conclude that the list of enumerated offenses contained in the definition of “crime of violence” in
ROGER A. PAGE, JUSTICE
At its discretion, the Committee on Pattern Jury Instructions (Criminal) could further explain that the element of violence as used in the оffense of robbery “is evidence of physical force unlawfully exercised so as to damage, injure or abuse.” State v. Fitz, 19 S.W.3d 213, 217 (Tenn. 2000).
Notes
While the Legislature has plenary authority to define crimes and prescribe punishments and remains essentially free to add any crime to [the crime of violence statutory definition] it sees fit as a shorthand means of increasing the severity of the offense . . . courts do not have that same discretion. Rather, the only standard provided to [the court] by the Legislature for determining whether an unenumerated crime is a crime of violence is the general rule [contained in the elements and residual clauses of the statutory definition of “crime of violence“].
[In this case, the State has alleged as the felony crime of violence the defendant‘s 2017 robbery conviction. You are instructed that robbery is the intentional or knowing theft of property from the person of another by violence or putting the person in fear. In order to conclude that the robbery conviction is “a conviction for a felony crime of violence,” you must unanimously find that the 2017 robbery was, in fact, accomplished by violence.]