         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs January 9, 2007

                      STATE OF TENNESSEE v. RICK BRADEN

                  Direct Appeal from the Criminal Court for Shelby County
                         No. 05-02051   James C. Beasley, Jr., Judge



                      No. W2006-00377-CCA-R3-CD - Filed May 18, 2007



David G. Hayes, Judge, separate concurring.

       I join with my colleagues in concluding that reversal of both convictions is necessary. I write
separately to note, in basic terms, my reasons for so concluding.

         The defendant was convicted of two separate aggravated robberies, one of the victim Burgess
and one of the victim Birdsong. At trial, the proof was undisputed that the robbery of Ms. Birdsong
was committed by a “black female,” not by the actual conduct of the defendant. Thus, to convict the
defendant of this crime would require proof that he was criminally responsible for the conduct of the
“black female.” Our supreme court in State v. Fowler, 23 S.W.3d 285, 288 (Tenn. 2000), has held
that virtually every time a defendant is charged with a felony by way of criminal responsibility for
another’s conduct, facilitation of the felony is a lesser included offense. For this reason, and based
upon the particular facts of this case, failure to charge facilitation constitutes reversible error. With
regard to the aggravated robbery of Ms. Burgess, the proof was factually disputed as to whether the
defendant committed this robbery by his “own conduct,” by the conduct of another for which he was
criminally responsible, by both, or by facilitating the crime. This factual dispute presents a jury
question, and, again, failure to instruct on the lesser offense of facilitation was reversible error.



                                                        _______________________________
                                                        DAVID G. HAYES, JUDGE
