                                                                                             04/15/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                               November 19, 2019 Session

                 STATE OF TENNESSEE v. RHASEAN LOWRY

                Appeal from the Criminal Court for Hamilton County
                          No. 294418 Don W. Poole, Judge
                     ___________________________________

                            No. E2019-00113-CCA-R3-CD
                        ___________________________________

THOMAS T. WOODALL, J., joining in part, concurring in result only in part.

       I join the majority in all issues except the issue regarding the trial court’s denial of
Defendant’s request for the trial court to charge facilitation as a lesser included offense of
felony murder. As to that issue, I concur in results only.

        At trial, the State made no objection to Defendant’s request for facilitation to be
added as a lesser included offense on the basis that the request was not in writing.
Likewise, on appeal, the State only argues the merits of the issue and does not assert the
issue is waived by Defendant.

       The majority opinion, sua sponte, has treated the issue as waived. The majority is
correct that a written request for the instruction is not in the record. However, the
majority’s conclusion that no written request was made at all in the trial court is not the
only logical speculation. In light of no objection by the State either in the trial court or
on appeal, and nothing mentioned by the trial court that the request should be denied
because it was not in writing, it is just as logical to speculate that a written request was
made, but was not included in the appellate record.

       However, after summarizing applicable law regarding plain error review, the
majority essentially analyzes the issue on its merits in order to conclude that Defendant is
not entitled to plain error relief.

       Instead of providing plenary review in order to deny plain error review when, as in
this case, the issue of waiver is not raised by the appellee State, I believe that the issue
should be addressed on its merits with the ultimate conclusion reached by the majority
opinion – Defendant is not entitled to relief.

                                    ____________________________________________
                                    THOMAS T. WOODALL, JUDGE
