                                                                                              03/21/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                               November 27, 2018 Session

            STATE OF TENNESSEE v. ERSKINE ANDY HUNT, JR.

             Direct Appeal from the Criminal Court for Morgan County
                    No. 2016-CR-4       Jeffery H. Wicks, Judge



                              No. E2018-00500-CCA-R3-CD


A Morgan County jury convicted the Defendant, Erskine Andy Hunt, Jr., of one count of
second degree murder, one count of unlawful possession of a firearm by a convicted felon,
one count of attempted unlawful possession of a firearm by a convicted felon, and two
counts of reckless endangerment; the Defendant pleaded guilty to an additional count of
unlawful possession of a firearm by a convicted felon. The trial court sentenced the
Defendant to an effective sentence of thirty-three years of incarceration. On appeal, the
Defendant contends that: (1) the evidence is insufficient to support his conviction for
second degree murder; (2) the State failed to disclose evidence it planned to introduce at
trial; and (3) the trial court erred when it instructed the jury about the mental state required
for a conviction of unlawful possession of a firearm by a convicted felon. After a
thorough review of the record and the applicable law, we affirm the trial court’s judgments.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which THOMAS T.
WOODALL and JAMES CURWOOD WITT, JR., JJ., joined.

Brennan M. Wingerter (on appeal) and Jedidiah C. McKeehan (at trial), Knoxville,
Tennessee, for the appellant, Erskine Andy Hunt, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; Russell Johnson, District Attorney General; Robert C. Edwards and
Barry Carrier, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                          OPINION
                                           I. Facts
                                           A. Trial
       This case arises from the Defendant’s shooting and killing the victim, Dolly
Meyers, in the home of Violet Callahan while Ms. Callahan’s two minor children were
present. Based on this conduct, a Morgan County grand jury indicted the Defendant for
one count of second degree murder (Count 1), three counts of unlawful possession of a
firearm by a convicted felon (Count 2: 12-gauge shotgun, Count 3: 20-gauge shotgun,
and Count 4: .22 caliber rifle), and two counts of aggravated child abuse (Counts 5 and
6).

       The following evidence was presented at trial: Paul Hargis testified that he
worked at the Morgan County Sheriff’s Office and responded to the scene of the
shooting, which took place inside Ms. Callahan’s mobile home. Deputy Hargis entered
the residence where he found the victim and the Defendant lying underneath a blanket on
the floor of the kitchen. The Defendant was “sobbing.” Deputy Hargis began securing
the scene. From the Defendant’s pants pocket, Deputy Hargis collected some 12-gauge
shotgun shells, some .22 caliber rifle ammunition, a pocket knife and cigarettes. The
Defendant objected to the introduction of this evidence. He first objected to the chain of
custody, then he contended that the evidence log provided to him in discovery did not list
with specificity the items being introduced but only listed them as “contents of suspect’s
pockets.” The Defendant then clarified that he was objecting, specifically, to the
pocketknife and cigarettes which were not listed in the evidence log. The trial court
“reserved entry” of these items of evidence until further foundation could be laid by
additional witnesses; the Defendant “reserved” his objection that the State was attempting
to introduce evidence not listed in the evidence log, specifically the pocket knife and
cigarettes.

       Deputy Hargis found a “pump 12-gauge” camouflage shotgun on the floor of the
residence. Another deputy checked the victim’s body for vital signs and found none.
During a search of the residence, the deputies found spent .22 caliber shell casings in a
bedroom. The residence’s occupants, including some children, were hiding in a
bedroom and were escorted out.

       On cross-examination, Deputy Hargis agreed that he spoke to the Defendant at the
scene. The Defendant told him that “some drug dealers” had come to the residence “to
get him.” He told Deputy Hargis that the drug dealers came back later and tried to get
inside the residence causing the Defendant to shoot through the door, during which he
accidentally shot the victim with a 12-gauge shotgun. Deputy Hargis was shown the
evidence log but stated that he had not prepared it.

       Mike Wren testified that he worked at the Morgan County Sheriff’s Office as an
investigator and that he responded to the scene of the shooting at approximately 8:00 a.m.
Investigator Wren processed and logged the evidence found at the scene. He collected
                                            2
two spent .22 caliber shell casings. He also collected a 12-gauge shotgun, a
semi-automatic .22 caliber rifle, and a third weapon, later identified as the 20-gauge
shotgun. Investigator Wren clarified that some or all of the weapons were inside a
police vehicle, for safety reasons, when he arrived. Investigator Wren identified a
photograph of the door of residence with bullet holes on the inside of the door.

      Investigator Wren identified a bag of evidence, which he described as the
“contents of the [Defendant’s] pockets.” He testified that all of the items from the
Defendant’s pockets were placed in an evidence bag together and that no items had been
removed. The Defendant again objected to the introduction of this evidence

       Investigator Wren interviewed the Defendant, who stated that he and the victim
had been at the Defendant’s mother’s house earlier that evening when his mother asked
them to leave. They went to Ms. Callahan’s house, who agreed to let them spend the
night at her house. The Defendant said that, at some point during the night, “he felt
threatened” because of some phone calls he had received. When the Defendant awoke
the next morning, he “went to the front door, moved the curtain, looked out the front
door, turned around, saw movement at the back door and pulled the trigger.” The
Defendant was distressed during the interview with Investigator Wren. He admitted to
Investigator Wren that he was under the influence of methamphetamine at the time of the
interview, and Investigator Wren recalled that the Defendant was having trouble
breathing, consistent with methamphetamine use.

       On cross-examination, Investigator Wren testified that he only logged evidence
that he believed relevant to the case. As such, of the items collected from the
Defendant’s pocket, he did not log the cigarettes or pocket knife. About the various
types of ammunition or ammunition shells that he collected from the residence,
Investigator Wren stated that he chose to count the number of some types of ammunition
and not others. He testified that he had interviewed Ms. Callahan and that she initially
said she did not witness the shooting. She later admitted to having seen the shooting.

       Violet Callahan testified that, at the time of the incident, she lived across the street
from the Defendant’s mother with her boyfriend and her two children. On the night of
the shooting, Ms. Callahan was home with her children, a sixteen-year-old daughter and a
three-year-old son. Around 9 p.m., the victim knocked on her door with the Defendant
and another individual, Brandon Frost. The group told Ms. Callahan that they needed a
place to stay because they had been in a fight with the Defendant’s mother. The group
carried some bags of clothing and two weapons. Ms. Callahan testified that the
Defendant was carrying a 12-gauge shotgun, and the victim was carrying a 20-gauge
shotgun. Ms. Callahan stated that her daughter and a friend had been shooting the .22
caliber rifle, which was stored in a closet bedroom, in the field behind her residence
                                              3
earlier that day.

       Ms. Callahan agreed that the group could stay overnight at her residence but said
they had to unload the two guns in their possession. She testified that she had unloaded
the .22 caliber rifle before putting it in the closet. Ms. Callahan recalled that the group
complied and placed the ammunition on the kitchen counter and the guns in Ms.
Callahan’s bedroom. Along with Ms. Callahan and her daughter, the group socialized
for a period of time before Ms. Callahan retired to bed around 1:00 a.m. Mr. Frost left
the residence soon after, and the Defendant and the victim stayed awake talking. Ms.
Callahan testified that no one else was around her residence or yard at that point because,
if anyone had been present, her dogs would have “gone wild.”

       Ms. Callahan testified that she had not seen the Defendant using drugs that night
but, based upon her observations of the Defendant, she believed he had been using drugs.
Ms. Callahan described the Defendant as agitated and “antsy.” Ms. Callahan woke up
around 5:30 a.m. and went to her living room to smoke a cigarette; her children were still
sleeping. Ms. Callahan found the Defendant and the victim talking in one of the
bedrooms, and the victim was telling the Defendant to calm down and that no one was
outside. The victim was not holding a weapon. The Defendant said, “I know those
m***** f****** are out there and I’ll prove it to you.” Ms. Callahan’s dogs remained
quiet, and she maintained that, had anyone been outside, the dogs would have “gone ape
s**t.” Ms. Callahan then saw that the Defendant was holding the 12-gauge shotgun
which caused her to be on alert. She told the Defendant to calm down and not to scare
her children. The victim attempted to show the Defendant that no one was outside,
shining a flashlight through the back door, while he looked through the front door.
Suddenly, the Defendant grabbed the 12-gauge shotgun with both hands and aimed it at
the victim before pulling the trigger, shooting the victim in the torso. Ms. Callahan
called 911 immediately and then tried to stop her children, now awake, from seeing the
victim’s body. The Defendant got on the floor with the victim’s body and put her in his
lap, crying and asking her to “come back.” Ms. Callahan locked herself in a bedroom
with her children while waiting for the police to arrive.

        Ms. Callahan testified that she later discovered three or four bullet holes in her
daughter’s bedroom wall from where the .22 caliber rifle had been shot. She reiterated
that the weapon had not been loaded earlier that night.

       Ben Gunter testified that he was a deputy for the Morgan County Sheriff’s Office
and responded to the scene of the shooting. Inside Ms. Callahan’s residence, he found
three weapons: the 12-gauge and 20-gauge shotguns and the .22 caliber rifle. All three
weapons were in the living room when he arrived. Deputy Gunter cleared the weapons
of ammunition immediately; he recalled that the 12-gauge shotgun and the .22 caliber
                                            4
rifle were loaded but he could not remember if the 20-gauge shotgun was loaded.

       Dr. Amy Hawes testified that she was Assistant Medical Examiner for Knox
County and was qualified as an expert in forensic pathology. She performed an autopsy
on the victim and determined the cause of her death to be a gunshot wound to the torso.

       Brandon Frost testified that he was with the Defendant on the day of the shooting
and saw the Defendant holding both the 12-gauge and 20-gauge shotguns. The
Defendant showed both of them to Mr. Frost. Mr. Frost did not recall seeing the .22
caliber rifle. Mr. Frost recalled that he and the Defendant were using methamphetamine
that day.

      The State concluded its proof, and the Defendant testified that he had been
engaged to the victim and that she was “everything” to him. He testified consistently
with the other witnesses about how he came to be at Ms. Callahan’s house. The
Defendant admitted to being in possession of the 12-gauge shotgun but denied being in
possession of any other weapons.

        The Defendant stated that, at some point during the night while the group stayed at
Ms. Callahan’s, three men came to the residence to buy methamphetamine from him.
One of the men pulled a gun in the Defendant’s face, a .380 “Hi-Point.” The men
eventually left. The Defendant and the victim went into a back bedroom; the Defendant
returned to the living room for a moment when he heard five shots from the .22 caliber
rifle. He went into the bedroom where the victim was, and she told him “they” were
outside and showed him the bullet holes in the wall. The Defendant had “no idea”
where the rifle came from and had not seen it before that moment. The Defendant then
took the victim into the living room, where they sat for over an hour waiting for
daybreak. The Defendant was “antsy” because he knew “they” were outside. He and
the victim went back into the bedroom when the front door “jerked” open, and the
Defendant heard, “where is the f****** monkey and the dope?” The Defendant told the
victim to stay in the bedroom while he went back into the living room and confronted the
intruders with the loaded 12-gauge shotgun. The Defendant was able to get the
intruders out of the front door. He recalled that hanging over the front and back doors
of the residence were blankets to prevent cold air from seeping in.

       After the Defendant got the intruders out the front door, he locked the door and
told Ms. Callahan, who was hysterical, to calm down so he could hear if the intruders
were still outside the residence. The Defendant was listening at the front door when he
turned and saw a silhouette behind the blanket on the back door. He fired his weapon
and the victim’s body fell out from behind the blanket. The Defendant testified that he
did not intend to shoot the victim. The Defendant testified that he was defending the
                                            5
residence and its occupants, and he did not shoot the intruders when they came inside the
residence because of the children present. The Defendant denied being high on drugs
that day or being paranoid.

       On cross-examination, the Defendant agreed that he had prior convictions for theft
and robbery. He agreed that he had no place to live at the time of the crime and was
using methamphetamine in that time period. He denied being antsy or agitated at Ms.
Callahan’s house. The Defendant did not know the names of the intruders. He
explained that Ms. Callahan’s dogs either were not present in the home or did not bark
that evening. The Defendant said that the other witnesses’ accounts, inconsistent with
his own, were lies.

       The Defendant agreed that he put the spent shells from the .22 caliber rifle in his
pocket.

      Damara Hunt testified that she was the Defendant’s niece and was at the
Defendant’s mother’s home on the night of this incident. She stated that she saw the
Defendant with two weapons. Ms. Hunt was shown the 12-gauge shotgun, which she
recognized, and the 20-gauge shotgun, which she said “look[ed] familiar.”

      Angie Davis, the Defendant’s mother, testified that he was at her house on the
night of this incident and that he had two guns with him. Ms. Davis asked the
Defendant and the victim to leave her home because there were too many people inside.
Ms. Davis identified the 12-gauge shotgun as one of the guns but did not recognize the
20-gauge.     Ms. Davis “assumed” that the Defendant had a problem with
methamphetamine use but stated that he was never “high” around her. Ms. Davis did
not know if the Defendant had used drugs that day.

        Following the close of proof, the Defendant pleaded guilty to one count of being a
felon in possession of a weapon, the 12-gauge shotgun (Count 2). Based upon the
evidence presented at trial, the jury convicted the Defendant of one count of second degree
murder (Count 1), one count of being a felon in possession of a weapon, the 20-gauge
shotgun (Count 3), one count of attempted possession of a weapon by a convicted felon, the
.22 caliber rifle (Count 4), and two counts of reckless endangerment (Counts 5 and 6). For
the second degree murder conviction, Count 1, the trial imposed a sentence of twenty
years. For the felon in possession of a weapon convictions, Counts 2 and 3, the trial court
imposed consecutive sentences of five years. These convictions were ordered to be
served consecutively to the Defendant’s convictions in unrelated cases. For the
conviction of attempted possession of a weapon by a convicted felon, Count 4, the trial
court imposed a consecutive sentence of three years. The trial court merged the two
reckless endangerment convictions, Counts 5 and 6, and imposed a sentence of two years
                                            6
to be served concurrently. The total effective sentence imposed was thirty-three years.

       It is from these judgments that the Defendant now appeals.

                                         II. Analysis

        On appeal, the Defendant contends that: (1) the evidence is insufficient to support
his conviction for second degree murder; (2) the State failed to disclose evidence it planned
to introduce at trial; and (3) the trial court erred when it instructed the jury about the mental
state required for a conviction for unlawful possession of a firearm by a convicted felon.

                               A. Sufficiency of the Evidence

       The Defendant asserts that the evidence is insufficient to support his second
degree murder conviction because his “high level” of methamphetamine intoxication
prevented him from forming the mental state required for second degree murder. He
contends that his intoxication prevented him from being “aware” of his actions and thus
he did not kill the victim “knowingly.” He further contends that he acted in
self-defense, justifying the killing. The State responds that the evidence presented was
that the Defendant was not intoxicated, by his own admission and by the accounts of
other people with him that evening, and that the evidence was sufficient for the jury to
conclude that the Defendant had the mental capacity required. The State further
responds that the evidence was sufficient for a jury to conclude that the killing was not
committed based on justifiable self-defense. We agree with the State.

       When an accused challenges the sufficiency of the evidence, this Court’s standard
of review is whether, after considering the evidence in the light most favorable to the State,
“any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Tenn. R. App. P.
13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91
S.W.3d 247, 276 (Tenn. 2002)). This rule applies to findings of guilt based upon direct
evidence, circumstantial evidence, or a combination of both direct and circumstantial
evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). A
conviction may be based entirely on circumstantial evidence where the facts are “so clearly
interwoven and connected that the finger of guilt is pointed unerringly at the Defendant and
the Defendant alone.” State v. Smith, 868 S.W.2d 561, 569 (Tenn. 1993). The jury
decides the weight to be given to circumstantial evidence, and “[t]he inferences to be
drawn from such evidence, and the extent to which the circumstances are consistent with
guilt and inconsistent with innocence, are questions primarily for the jury.” State v. Rice,
184 S.W.3d 646, 662 (Tenn. 2006) (citations omitted). In determining the sufficiency of
the evidence, this Court should not re-weigh or re-evaluate the evidence. State v.
                                               7
Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor may this Court substitute
its inferences for those drawn by the trier of fact from the evidence. State v. Buggs, 995
S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956).
“Questions concerning the credibility of the witnesses, the weight and value of the
evidence, as well as all factual issues raised by the evidence are resolved by the trier of
fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); Liakas, 286 S.W.2d at 859. “A
guilty verdict by the jury, approved by the trial judge, accredits the testimony of the
witnesses for the State and resolves all conflicts in favor of the theory of the State.” State
v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); State v. Grace, 493 S.W.2d 474, 479
(Tenn. 1973). The Tennessee Supreme Court stated the rationale for this rule:

       This well-settled rule rests on a sound foundation. The trial judge and the
       jury see the witnesses face to face, hear their testimony and observe their
       demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be given
       to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1996) (citing Carroll v. State, 370 S.W.2d 523
(Tenn. 1963)). This Court must afford the State of Tennessee the strongest legitimate
view of the evidence contained in the record, as well as all reasonable inferences which
may be drawn from the evidence. Goodwin, 143 S.W.3d at 775 (citing State v. Smith, 24
S.W.3d 274, 279 (Tenn. 2000)).

      Second degree murder is defined as “a knowing killing of another.” T.C.A. §
39-13-210(a)(1) (2014). The requisite mental state, “knowing,” requires proof that a
defendant “is aware that the conduct is reasonably certain to cause” the death of another.
T.C.A. § 39-11-203(b).

        The evidence, considered in the light most favorable to the State, shows that the
Defendant pointed a loaded 12-gauge shotgun at the victim and shot her in the torso,
causing her death. The Defendant claims that he lacked the mental state required to find a
“knowing” killing, due to his being intoxicated. No one saw the Defendant use drugs that
evening, although several witnesses assumed he was “high.” The Defendant told
Investigator Wren that he had used drugs earlier that day. The Defendant, however,
testified at trial that he was not “high” and had not used drugs that day. This evidence is
sufficient from which a jury could have concluded beyond a reasonable doubt that the
Defendant was not intoxicated and had the requisite mental state for second degree murder.
Accordingly, we conclude that the evidence is sufficient to support the conviction.

                                              8
       As to the Defendant’s contention that his claim of self-defense undermines the
verdict, the jury heard from the Defendant and other witnesses that the Defendant felt
threatened by intruders that he claimed had entered the house with a gun pointed at him
before the shooting. The jury also heard Ms. Callahan testify that, if anyone had been
present outside her home, her dogs would have alerted her. By its verdict, the jury
discredited the Defendant’s claim that he had a reasonable belief that he was in imminent
danger of death. It is within the province of the jury to assess witness credibility and
determine the weight and value to be given to the evidence. Bland, 958 S.W.2d at 659.
As such, the Defendant is not entitled to relief on this issue.

                              B. Withholding of Evidence

       The Defendant contends that the State withheld certain items of evidence, items
removed from his pockets, which were crucial to his defense. He claims that, because
he was charged with possession of several types of firearms, the type and number of
shotgun shells found was pivotal to his defense strategy. The State responds that the
Defendant has waived this issue based on the lack of a specific objection and failure to
provide a complete record. The Defendant replies that he objected to the introduction of
this evidence specifically at trial and thus has not waived this issue.

       Appellate relief is generally not available when a party is “responsible for an
error” or has “failed to take whatever action was reasonably available to prevent or
nullify the harmful effect of any error.” Tenn. R. App. P. 36(a); see State v. Killebrew,
760 S.W.2d 228, 235 (Tenn. Crim. App. 1988) (waiver applies when the defendant fails
to make a contemporaneous objection); see also State v. Jenkins, 733 S.W.2d 528, 532
(Tenn. Crim. App. 1987); State v. Rhoden, 739 S.W.2d 6, 11-12, 18 (Tenn. Crim. App.
1987). Failure to lodge a contemporaneous objection also risks waiver. See Tenn. R.
App. P. 36(b). Furthermore, it is the Appellant’s duty to ensure that the record on
appeal contains all of the evidence relevant to those issues which are the bases of the
appeal. See Tenn. R. App. P. 24(b); State v. Banes, 874 S.W.2d 73, 82 (Tenn. Crim.
App. 1993). This court is unable to consider an issue which is not preserved in the
record for review. See Banes, 874 S.W.2d at 82.

       We have reviewed a transcript of what occurred during the introduction of the
evidence at issue, done in part during Deputy Hargis’s testimony and in part during
Investigator Wren’s testimony. The evidence introduced was referred to as “contents of
suspect’s pockets” by the witnesses, and the Defendant objected to the items not being
listed more specifically in the evidence log, namely a pocketknife and cigarettes. On
appeal, he contends that the evidence log listed “.22 shells and shotgun shells” but failed
to specify the caliber of shotgun shells or the number of shotgun and .22 caliber shells.

                                            9
This failure, he contends, prejudiced him by hampering his ability to develop a defense
strategy relevant to his alleged possession of all three weapons.

        The evidence log is not included in the record. The Defendant specifically
objected to the introduction of the pocketknife and cigarettes but did not mention in his
objection the number of shells. It is unclear from the transcript exactly what items were
being introduced by the State or complained of by the Defendant. Without the evidence
log or a complete accounting of what was introduced at trial, this court cannot determine
if there was a falsification or misleading item in the evidence log, or if the same impacted
the Defendant’s strategy at trial. Accordingly, the Defendant’s failure to include a
complete record constitutes a waiver to any challenge of the trial court’s rulings. See
generally State v. Ballard, 855 S.W.2d 557, 560 61 (Tenn. 1993) (appellant’s failure to
provide this court with a complete record relevant to the issues presented for review
constitutes a waiver of the issue); State v. Draper, 800 S.W.2d 489, 493 (Tenn. Crim.
App. 1990) (appellate court is precluded from considering an issue when the record does
not contain a transcript of what transpired in trial court with respect to that issue).
Additionally, our review of the transcript reveals that the Defendant did not specifically
object to the shells being introduced on the basis which he now alleges. We conclude
that the Defendant has waived this issue for failure to provide a complete record.
Further, we note that Rule of Criminal Procedure 16 mandates that the State allow a
defendant access to all tangible items of evidence. The evidence in this case was thus
available for review prior to trial, and the Defendant could have viewed it and known
exactly what evidence might be introduced at trial. The Defendant is not entitled to
relief as to this issue.

                                    C. Jury Instruction

        The Defendant contends that the trial court erred when it instructed the jury
relative to Counts 3 and 4, unlawful possession of a weapon by a convicted felon. He
contends that the trial court’s instruction that the Defendant must have possessed the
weapon “intentionally, knowingly, or recklessly” was erroneous. He concedes that he
failed to lodge a proper objection to the instruction, but he contends he is entitled to plain
error relief. The State responds that the Defendant is not entitled to plain error relief
because he has failed to establish a breach of a clear and unequivocal rule of law because
“all three mental states apply” to these offenses and that the trial court properly instructed
the jury on the definition of “possession.” We agree with the State.

       Relief is not required when “a party responsible for an error or who failed to take
whatever action was reasonably available to prevent or nullify the harmful effect of an
error.” Tenn. R. App. P. 36(a). As such, the issue is waived, and it may only be
considered for plain error. See Tenn. R. Crim. P. 52(a). Tennessee Rule of Appellate
                                             10
Procedure 36(b) states that “[w]hen necessary to do substantial justice, an appellate court
may consider an error that has affected the substantial rights of a party at any time, even
though the error was not raised in the motion for new trial or assigned as error on
appeal.” Accordingly, this Court will grant “plain error” review pursuant to Rule 36(b)
only where the following five criteria are met: (1) the record clearly establishes what
occurred in the trial court; (2) the error breached a clear and unequivocal rule of law; (3)
the error adversely affected a substantial right of the complaining party; (4) the error was
not waived for tactical purposes; and (5) substantial justice is at stake; that is, the error
was so significant that it “‘probably changed the outcome of the trial.’” State v. Smith,
24 S.W.3d 274, 282-83 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 626, 642
(Tenn. Crim. App. 1994)). If any of these five criteria are not met, we will not grant
relief, and complete consideration of all five factors is not necessary when it is clear from
the record that at least one of the factors cannot be established. Id. at 283. The party
claiming plain error has the burden of persuading the appellate court. State v. Banks,
271 S.W.3d 90, 119 (Tenn. 2008).

        A trial court has a duty to provide “a complete charge of the law applicable to the
facts of the case.” State v. James, 315 S.W.3d 440, 446 (Tenn. 2010) (quoting State v.
Harbison, 704 S.W.2d 314, 319 (Tenn. 1986)); see also Tenn. R. Crim. P. 30(d)(2). A
charge “should not contain inaccurate or inapplicable statements of legal principles that
might tend to confuse the jury.” State v. Hatcher, 310 S.W.3d 788, 812 (Tenn. 2010)
(citations omitted). Tennessee law, however, does not mandate that any particular jury
instructions be given so long as the trial court gives a complete charge on the applicable
law. See State v. West, 844 S.W.2d 144, 151 (Tenn. 1992). A charge is prejudicial
error “if it fails to fairly submit the legal issues or if it misleads the jury as to the
applicable law.” State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997) (citing State v.
Forbes, 918 S.W.2d 431, 447 (Tenn. Crim. App. 1995); Graham v. State, 547 S.W.2d
531 (Tenn. 1977)). In determining whether jury instructions are erroneous, this court
must review the charge in its entirety and invalidate the charge only if, when read as a
whole, it fails to fairly submit the legal issues or misleads the jury as to the applicable
law. State v. Vann, 976 S.W.2d 93, 101 (Tenn. 1998).

       At trial, the Defendant did not object to the trial court’s instruction. The trial
court charged the jury, relevant to Counts 3 and 4, with the pattern jury instruction for the
offense of unlawful possession of a firearm by a convicted felon. T.C.A. §
39-17-1307(b)(1)(A). The trial court stated that the jury must find in part that the
Defendant had acted “intentionally, knowingly, or recklessly.” The trial court defined
possession as “actual possession” or “constructive possession” of a weapon, consistent
with the pattern instructions. The definition of “constructive possession” states that a
person who, although not in actual possession, knowingly has both power and intention at
any given time to exercise dominion and control over an object is in constructive
                                             11
possession of it.” T.P.I.—Crim. 35.06(a) (16th ed.2012) (emphasis added). The
Defendant contends that the trial court erred when it included “recklessly” in this
instruction because it allowed the State to rely on a lesser standard of proof, amounting to
a breach of a clear and unequivocal rule of law.

        Concerning Counts 3 and 4, the language of the statute is silent as to a required
culpable mental state for the offenses. T.C.A. § 39-17-1307(b)(1)(A) (“A person
commits an offense who unlawfully possesses a firearm, as defined in § 39-11-106, and .
. . [h]as been convicted of a felony crime of violence, an attempt to commit a felony
crime of violence, or a felony involving use of a deadly weapon”). Tennessee Code
Annotated section 39-11-301 provides, “If the definition of an offense within this title
does not plainly dispense with a mental element, intent, knowledge or recklessness
suffices to establish he culpable mental state.” Consistently, this court has noted that in
the case of a statute that does not contain a specific mental state, “intent, knowledge or
recklessness suffices to establish the culpable mental state.” See State v. Maurice Gray,
No. W2017-01897-CCA-R3-CD, 2018 WL 4382093, at *10 n.1 (Tenn. Crim. App., at
Jackson, Sept. 14, 2018), no perm. app. filed. Accordingly, the trial court properly
instructed the jury as to all three mental states when it laid out the elements of the statute.
As to the Defendant’s argument that the trial court erred when it included “recklessly” in
the instruction, thus requiring a lesser mental state, we disagree. The trial court
included “knowingly” in its definition of “constructive possession,” and, as juries are
presumed to follow a trial court’s instruction, State v. Knowles, 470 S.W.3d 416, 426
(Tenn. 2015), we conclude that if the jury based its verdict on “constructive possession”
rather than “actual possession,” that verdict would necessarily include the jury’s finding
that the Defendant had acted knowingly. As no clear and unequivocal rule of law has
been breached, the Defendant is not entitled to plain error relief on this issue.

                                       III. Conclusion

     In accordance with the aforementioned reasoning and authorities, we affirm the
judgments of the trial court.



                                                   _________________________________
                                                     ROBERT W. WEDEMEYER, JUDGE




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