        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs December 2, 2014

              STATE OF TENNESSEE v. TERRANCE JOHNSON

                   Appeal from the Criminal Court for Shelby County
                        No. 11-07211    Chris B. Craft, Judge


               No. W2013-02449-CCA-R3-CD - Filed February 5, 2015


Appellant, Terrance Johnson, was convicted by a jury of second degree murder, employing
a firearm during the commission of a dangerous felony, and burglary of an automobile. The
trial court sentenced him to seventeen years for the murder conviction, six years for the
firearm conviction, and one year for the burglary conviction for a total effective sentence of
twenty-three years. On appeal, appellant argues that the armed dangerous felonies statute,
Tennessee Code Annotated section 39-17-1324, does not list second degree murder as a
dangerous felony in subsection 1324(i)(1) and that therefore (1) his conviction for employing
a firearm during the commission of a dangerous felony cannot stand and (2) the trial court
erred in its jury instructions with regard to this charge. The State concedes error and requests
that this court reverse and dismiss the firearm conviction. Following our review, we reverse
and dismiss appellant’s conviction for employing a firearm during the commission of a
dangerous felony. We affirm the trial court’s judgments in all other respects.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
                     in Part; Reversed and Dismissed in Part

R OGER A. P AGE, J., delivered the opinion of the court, in which J AMES C URWOOD W ITT, J R.,
and D. K ELLY T HOMAS, J R., JJ., joined.

Robert Todd Mosley (on appeal), Waynesville, North Carolina; and Coleman W. Garrett (at
trial), Memphis, Tennessee, for the appellant, Terrance Johnson.

Herbert H. Slatery III, Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Amy
P. Weirich, District Attorney General; and Stephanie Zander Johnson, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                           OPINION

                                             I. Facts

        This case concerns the shooting death of Lewis Oliver at his home in Memphis,
Tennessee, on May 30, 2011. Appellant was accused of murdering the victim using a firearm
that he stole from his uncle’s vehicle; therefore, he was indicted for second degree murder,
employing a firearm during the commission of a dangerous felony, and burglary of an
automobile. The indictment did not specify the dangerous felony underlying the firearm
charge. Because the arguments presented to this court on appeal are questions of law, not
of fact, we will limit our recitation of the testimony presented at appellant’s trial to a brief
summary.

        At trial, two of the victim’s grandchildren testified that they found the victim deceased
in the yard of his home on May 30, 2011, Memorial Day. The medical examiner testified that
the victim had been shot a total of three times — in his chest, in his back, and in his right leg.
The medical examiner characterized the back wound as a contact wound, meaning that the
muzzle of the gun was against the victim’s body. The other two wounds were inflicted from
an indeterminate range.

        Police officers testified that they found two shell casings and one spent bullet. The
shell casings were Winchester .25 caliber automatic and the spent bullet was consistent with
being .25 caliber. During their investigation, the police learned that appellant’s uncle, Alfred
Johnson, had accused appellant of stealing a .25 caliber semiautomatic pistol from his
vehicle. Other information gathered in the investigation implicated appellant in the victim’s
murder, and he was arrested on June 3, 2011.

        The police officer who interrogated appellant testified that appellant initially denied
any involvement but later admitted that he had stolen his uncle’s gun and that he had shot the
victim. Appellant told the police that on the day of the murder, someone told him that the
victim had been beating appellant’s mother, Freddie Johnson. Appellant went to the victim’s
house and heard the victim and Ms. Johnson arguing. Appellant confronted the victim, and
the victim cursed at him, made vulgar comments about Ms. Johnson, and threw a vodka
bottle at him. Appellant said that the bottle hit his arm and that he responded by shooting the
victim. Appellant claimed that he was approximately five feet away from the victim when
he shot the victim. Appellant told the police that his friend Cedric Matthews was with him
when he stole the gun and when he shot the victim. He said that he gave Mr. Matthews
permission to sell the gun afterwards and that Mr. Matthews sold the gun to “Marcus.”

       Ms. Johnson testified that she had been at the victim’s house the night before his death

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but that she was at the rooming house where she lived all day on May 30, moving furniture
and other items. She learned about the victim’s death from her landlord. She said that the
victim was never abusive towards her. Her landlord testified that he was in and out of the
rooming house during the day on May 30, that Ms. Johnson was at the rooming house every
time that he was there, and that the tenants were cleaning the house that day.

        Alfred Johnson testified that he noticed his handgun was missing from his vehicle on
May 29, a Sunday, and that he confronted appellant about it right away. When appellant
denied having the handgun, Mr. Johnson reported the incident to the police. Marcus Thomas
testified that appellant sold him the handgun on Tuesday, May 31. Mr. Thomas said he threw
the gun into the Wolf River because of information he received about the gun later.

        Appellant, testifying on his own behalf, stated that he stole the handgun on May 30
with the intent to sell it. While he and Cedric Matthews were walking around their
neighborhood looking for someone to buy the gun, a man named Willie told him that the
victim was beating up Ms. Johnson. Appellant said that he went to the victim’s house, and
Ms. Johnson was “coming off the porch.” Appellant testified that she had a swollen eye and
disheveled hair. Appellant claimed that he asked the victim “what was going on.” Appellant
testified that the victim was belligerent and threw a vodka bottle at him. Appellant said, “I
pulled out the gun, he grabbed my arm and tried to take it, and I jumped back and I shot.”
Appellant said that he ran away but fired two more shots in the victim’s direction as he did
so, not knowing whether he hit the victim.

         Following the close of proof, the trial court issued its instructions to the jury. In so
doing, it instructed the jury that for the employing a firearm charge, the underlying dangerous
felonies were second degree murder or voluntary manslaughter. The jury subsequently
convicted appellant of second degree murder, employing a firearm during the commission
of a dangerous felony, and burglary of an automobile. The trial court sentenced appellant to
seventeen years, six years, and one year, respectively. The trial court ordered that the
burglary sentence be served concurrently to the murder sentence, and the firearm sentence
was to be served consecutively as a matter of law. See Tenn. Code Ann. § 39-17-1324(e)(1).
It is from these judgments that appellant now appeals.

                                          II. Analysis

         A. Employing a Firearm During the Commission of a Dangerous Felony

       Appellant argues that as a matter of plain error, his conviction for employing a firearm
during the commission of a dangerous felony is void. He contends that second degree
murder is not a dangerous felony under Tennessee Code Annotated section 39-17-1324(i)(1)

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and that therefore he cannot be convicted of employing a firearm during the commission of
second degree murder. The State concedes, stating that the evidence was insufficient to
support appellant’s conviction.

        Appellant has presented his argument as a matter of plain error because it is raised for
the first time on appeal. To establish a claim of plain error,

       “(a) the record must clearly establish what occurred in the trial court; (b) a
       clear and unequivocal rule of law must have been breached; (c) a substantial
       right of the accused must have been adversely affected; (d) the accused did not
       waive the issue for tactical reasons; and (e) consideration of the error is
       ‘necessary to do substantial justice.’”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 626,
641-42 (Tenn. Crim. App. 1994)).

       Appellant has met the requirements to establish a claim of plain error. In this case,
appellant was charged with employing a firearm during the commission of a dangerous
felony, an offense codified in Tennessee Code Annotated section 39-17-1324. The statute
enumerates the possible underlying “dangerous felonies” in subsection 1324(i)(1), and the
legislature did not include second degree murder in this list. Thus, appellant’s conviction
was “imposed in direct contravention of a statute.” Stephenson v. Carlton, 28 S.W.3d 910,
911 (Tenn. 2000). Therefore, the judgment for employing a firearm during the commission
of a dangerous felony is void and must be reversed and dismissed.

                                      B. Jury Instructions

       Appellant also submits as a matter of plain error that the trial court erred by instructing
the jury that second degree murder was a dangerous felony for purposes of the firearm
charge. Again, the State concedes, and we agree with the parties. The record at trial
established that the trial court’s jury charge included second degree murder as an underlying
dangerous felony for the firearm charge. “[A] defendant has a right to a correct and complete
charge of the law, so that each issue of fact raised by the evidence will be submitted to the
jury on proper instructions.” State v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000) (citing
State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990)). As discussed above, second degree
murder is not an enumerated dangerous felony under Tennessee Code Annotated section 39-
17-1324(i)(1), and therefore, it was a breach of a clear and unequivocal law to include second
degree murder in the jury instruction. Moreover, the error was not harmless beyond a
reasonable doubt. However, as we have already determined that appellant’s conviction for
employing a firearm must be dismissed, this issue is rendered moot.

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                                     CONCLUSION

       Based on the record, the applicable law, and the arguments of the parties, we reverse
and dismiss appellant’s conviction for employing a firearm during the commission of a
dangerous felony. We affirm the trial court’s judgments in all other respects.


                                                  _________________________________
                                                  ROGER A. PAGE, JUDGE




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