                                                                                        03/05/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs October 2, 2019

         STATE OF TENNESSEE v. TAVARIS MARKEE GOLDEN

                 Appeal from the Circuit Court for Madison County
                        No. 17-604 Donald H. Allen, Judge
                     ___________________________________

                           No. W2018-01956-CCA-R3-CD
                       ___________________________________

A Madison County Circuit Court Jury convicted the Appellant, Tavaris Markee Golden,
of aggravated assault, a Class C felony, employing a firearm during the commission of or
attempt to commit a dangerous felony, a Class C felony, and attempted voluntary
manslaughter, a Class D felony, and he received an effective twelve-year sentence. On
appeal, the Appellant contends that the trial court erred by refusing to merge the
attempted voluntary manslaughter conviction into the aggravated assault conviction and
that the merger would have negated his conviction of employing a firearm during the
commission of a dangerous felony and the six-year sentence he received for the offense.
Based upon the record and the parties’ briefs, we affirm the judgments of the trial court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which THOMAS T.
WOODALL and ROBERT W. WEDEMEYER, JJ., joined.

J. Colin Morris, Jackson, Tennessee, for the appellant, Tavaris Markee Golden.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant
Attorney General; Jody S. Pickens, District Attorney General; and Bradley F. Champine,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                                I. Factual Background

      In November 2017, the Madison County Grand Jury indicted the Appellant for
attempted first degree premeditated murder, aggravated assault with a deadly weapon,
and employing a firearm during the commission of or attempt to commit a dangerous
felony.1 In April 2018, a jury convicted him of attempted voluntary manslaughter as a
lesser-included offense of attempted first degree murder, aggravated assault, and
employing a firearm during the commission of or attempt to commit a dangerous felony.2
Although the Appellant does not contest the sufficiency of the evidence, we will briefly
summarize the proof presented at trial.

        On December 25, 2016, the victim, Charles Bommer, was at a family gathering
outside his mother’s house in Jackson. About 5:20 p.m., the Appellant came to the house
in his Chevrolet Tahoe to pick up one of Bommer’s sisters, who was the Appellant’s
girlfriend. The Appellant and the victim had previously had “some trouble.” The victim
approached the Tahoe and told the Appellant to leave because the Appellant was
trespassing. The Appellant got out of his Tahoe, took a shotgun out of the back of the
vehicle, and shot the victim in the stomach. The Appellant then returned the shotgun to
the Tahoe and drove away. The victim denied spitting in the Appellant’s face or hitting
him prior to the shooting.

       A family member transported the victim to Jackson General Hospital. The victim
was in “grave” condition when he arrived, and the doctor who treated him in the
emergency room did not expect him to survive. The victim had multiple surgeries and
spent a couple of months in the hospital.

       The police arrested the Appellant in Columbia four or five days after the shooting
and interviewed him on December 30, 2016. During the interview, the Appellant claimed
that he shot the victim because he thought the victim had a gun and because he was afraid
of the victim. He also claimed that the victim spit on him and punched his face before
the shooting. One of the police officers who conducted the Appellant’s interview saw
what appeared to be a tooth impression on the inside of the Appellant’s cheek. On cross-
examination, the officer testified that the Appellant’s injury “looked like it would line up
with his teeth” and that the injury could have resulted from a fist punching the
Appellant’s face.

       After the jury convicted the Appellant, the trial court held a sentencing hearing
and imposed a sentence of six years for aggravated assault, a Class C felony, six years for
employing a firearm during the commission of or attempt to commit a dangerous felony,
a Class C felony, and four years for attempted voluntary manslaughter, a Class D felony.
The trial court ordered that the Appellant serve the six-year sentence for employing a


       1
         The indictment specified attempted first degree murder as the “dangerous felony.” See Tenn.
Code Ann. § 39-17-1324(i)(1)(A).
       2
         Attempted voluntary manslaughter also is a “dangerous felony.” See Tenn. Code Ann. § 39-17-
1324(b)(2), (i)(1)(C).
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firearm during the commission of or attempt to commit a dangerous felony consecutive to
the other two sentences for a total effective sentence of twelve years.

                                      II. Analysis

       The Appellant contends that the trial court erred by refusing to merge the
conviction of attempted voluntary manslaughter into the conviction of aggravated assault
because he committed only one act. He further contends that the merger would have
negated his conviction of employing a firearm during the commission of or attempt to
commit a dangerous felony and the six-year sentence he received for the offense because
aggravated assault is not a “dangerous felony” under Tennessee Code Annotated section
39-17-1324(i)(1). The State argues that the trial court did not err. We agree with the
State.

       The double jeopardy clauses of the United States and Tennessee Constitutions
protect an accused from (1) a second prosecution following an acquittal; (2) a second
prosecution following conviction; and (3) multiple punishments for the same offense.
See State v. Watkins, 362 S.W.3d 530, 541 (Tenn. 2012). The instant case concerns the
third category, protection against multiple punishments for the same offense in a single
prosecution. “Multiple punishment claims fall into one of two categories: (1) unit-of-
prosecution claims; or (2) multiple description claims.” State v. Hogg, 448 S.W.3d 877,
885 (Tenn. 2014) (citing Watkins, 362 S.W.3d at 543). The “threshold inquiry” in
multiple description claims is whether the dual convictions arose from the same act or
transaction. State v. Itzol-Deleon, 537 S.W.3d 434, 441-42 (Tenn. 2017). If so, a double
jeopardy violation may exist.

       “It is well settled in Tennessee that, under certain circumstances, two convictions
or dual guilty verdicts must merge into a single conviction to avoid double jeopardy
implications.” State v. Berry, 503 S.W.3d 360, 362 (Tenn. 2015) (order). “Whether
multiple convictions violate double jeopardy is a mixed question of law and fact that we
review de novo with no presumption of correctness.” State v. Smith, 436 S.W.3d 751,
766 (Tenn. 2014).

       The State acknowledges that the convictions arose from the same act or
transaction but argues that the trial court properly refused to merge the convictions. In
support of its argument, the State relies on State v. Feaster, 466 S.W.3d 80 (Tenn. 2015).
In that case, the defendant beat the victim, with whom he had been living, so severely
that she remained unconscious for three days. Feaster, 466 S.W.3d at 82. A jury
convicted him of attempted voluntary manslaughter as a lesser-included offense of
attempted first degree murder and convicted him of aggravated assault, and the trial court
refused to merge the convictions. Id. at 83. A divided panel of this court affirmed the
                                          -3-
defendant’s convictions and sentences, but one member of the panel dissented in part and
concluded that the trial court should have merged the convictions pursuant to double
jeopardy principles. Id. On appeal to our supreme court, the supreme court ruled that the
defendant’s convictions did not violate double jeopardy principles because each of the
offenses contained elements that the other did not and because there was no evidence that
the legislature intended to prohibit multiple punishments in such circumstances.

        Like Feaster, the jury in this case convicted the Appellant of attempted voluntary
manslaughter as a lesser-included of attempted first degree murder and convicted him of
aggravated assault. Furthermore, both of the convictions arose out of the same incident.
“Voluntary manslaughter is the intentional or knowing killing of another in a state of
passion produced by adequate provocation sufficient to lead a reasonable person to act in
an irrational manner.” Tenn. Code Ann. § 39-13-211(a). Relevant to this case, criminal
attempt occurs when a person “[a]cts with intent to complete a course of action or cause a
result that would constitute the offense, under the circumstances surrounding the conduct
as the person believes them to be, and the conduct constitutes a substantial step toward
the commission of the offense. Tenn. Code Ann. § 39-12-101(a)(3). As charged in the
indictment, aggravated assault occurs when a person intentionally or knowingly causes
bodily injury to another and uses or displays a deadly weapon. Tenn. Code Ann. § 39-
13-101(a)(1), -102(a)(1)(A)(iii). Both of the offenses contain elements that the other
does not, and there is no evidence that the legislature intended to prohibit multiple
punishments in such circumstances. Accordingly, we must conclude that the Appellant’s
dual convictions do not violate double jeopardy.

       Given that the trial court properly refused to merge the convictions, we find no
need to address the Appellant’s claim that the merger would have negated his conviction
and six-year sentence for employing a firearm during the commission of or attempt to
commit a dangerous felony.

                                      III. Conclusion

         Based upon the record and the parties’ briefs, we affirm the judgments of the trial
court.
                                                  _________________________________
                                                  NORMA MCGEE OGLE, JUDGE




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