        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                March 22, 2016 Session

            STATE OF TENNESSEE v. ROGER DALE STEWART

            Direct Appeal from the Criminal Court for Hawkins County
                    No. 13CR81      John F. Dugger, Jr., Judge



               No. M2015-00820-CCA-R3-CD – Filed October 18, 2016



NORMA MCGEE OGLE, J., concurring in part and dissenting in part.

       I agree with most of the conclusions set forth in the majority opinion. I write
separately, however, to respectfully dissent from the majority’s conclusion that the trial
court’s merger of the defendant’s reckless endangerment convictions does not constitute
plain error.

        The majority addresses this issue in a footnote of the opinion and correctly
concludes that the trial court erred by merging the defendant’s reckless endangerment
convictions because the State elected to prosecute the defendant in Counts 2 and 3 for
criminal acts committed against individually named victims. See State v. Cross, 362
S.W.3d 512, 519 n.5 (Tenn. 2012). Moreover, such dual convictions do not violate
double jeopardy. See State v. Watkins, 362 S.W.3d 520, 556-57 (Tenn. 2012). However,
the majority also concludes, without any explanation, that the trial court’s error does not
rise to the level of plain error because “our consideration of such is not necessary to do
substantial justice” under Adkisson. This is where the majority and I disagree. This
court has repeatedly held that a trial court’s improper merger of offenses constitutes plain
error. See State v. Jonathan Downey, No. M2013-01099-CCA-R3-CD, 2014 WL
820274, at *10 (Tenn. Crim. App. at Nashville, Feb. 28, 2014), perm. to appeal denied,
(Tenn. June 25, 2014), State v. David Eugene Breezee, No. W2011-01231-CCA-R3-CD,
2012 WL 6728345, at *8 (Tenn. Crim. App. at Jackson, Dec. 28, 2012), perm. to appeal
denied, (Tenn. May 14, 2013); State v. David E. Offutt, No. M2007-02728-CCA-R3-CD,
2009 WL 2567870, at *7 (Tenn. Crim. App. at Nashville, Aug. 20, 2009), perm. to appeal
denied, (Tenn. Mar. 1, 2010). Moreover, in Downey, a panel of this court specifically
concluded that consideration of such error was necessary to do substantial justice because
the erroneous merger deprived the State of the benefit of the jury’s verdict for the merged
offense. No. M2013-01099-CCA-R3-CD, 2014 WL 820274, at *10.
       In sum, I believe the trial court committed plain error by merging the defendant’s
reckless endangerment convictions. Therefore, I would remand this case in order for the
court to reinstate the conviction of reckless endangerment in Count 3 and to resentence
the defendant.


                                                _________________________________
                                                NORMA MCGEE OGLE, JUDGE




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