                                                                                        06/15/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                              February 22, 2017 Session

             STATE OF TENNESSEE v. KAYLECIA WOODARD

                  Appeal from the Criminal Court for Knox County
                         No. 104200    Steve Sword, Judge


                            No. E2016-00676-CCA-R3-CD


The defendant, Kaylecia Woodard, appeals her Knox County Criminal Court jury
conviction of aggravated robbery, arguing that the evidence is insufficient to support her
conviction and that the criminal gang enhancement statute, which was applied to enhance
her sentence, is unconstitutional. We discern no infirmity relative to the guilt phase of
the defendant’s trial and affirm the defendant’s conviction of aggravated robbery.
Because, as this court has now repeatedly concluded, that portion of the criminal gang
enhancement statute used to enhance the defendant’s sentence is unconstitutional, we
vacate the criminal gang enhancement and the 15-year sentence, modify the judgment to
reflect a Class B felony conviction of aggravated robbery, and remand the case for
resentencing.

Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed in Part; Reversed in
                          Part; Modified; Remanded

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and ROBERT H. MONTGOMERY, JR., JJ., joined.

Forrest L. Wallace (on appeal), and Douglas A. Trant (at trial), Knoxville, Tennessee, for
the appellant, Kaylecia Woodard.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Assistant
Attorney General; Charme P. Allen, District Attorney General; and TaKisha Fitzgerald,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

            The defendant’s conviction relates to the June 16, 2014 robbery of the
Grocery and Tobacco Market on Maryville Pike in Knoxville. On that date, Anthony
Smith robbed the store clerk, Mohammed Islam, at gunpoint. Mr. Islam described the
offense at trial:

              What actually happened is I am working and my employee
              called me, I was talking to them. And one guy – with the
              bandana, he pull out the gun in front of me and said give the
              money. I said like two times, Hey, you play with me like I
              don’t believe it two times. And third time merely I’m upset
              and I have the money so I give him the money. And one lady
              is outside walking.

              Store employee Michael Puri was on the telephone with Mr. Islam when he
overheard someone “say give me all the money.” Mr. Puri, who was visiting a friend in
nearby Montgomery Village, ran toward the store. As he ran, he noticed an “out of
place” vehicle “on the side street.” He said that he knew “the two families that live in the
houses right there next to that street very well and . . . knew that that car wasn’t supposed
to be there.” He saw “that the driver was really on the steering wheel,” which made him
assume “that that could be the people that robbed” the convenience market. He “also
noticed there was somebody in the back seat scuffling trying to maybe take off clothes.”
Because he thought the car might be involved in the robbery, he shouted out the license
plate number, which was then taken down by “neighbors.” Mr. Puri identified a
photograph of the defendant as a person who “could fit the description of the driver” but
admitted during cross-examination that he could not positively identify the defendant.

              Nineteen-year-old Anthony Smith testified that he committed the robbery at
the Grocery and Tobacco Market with the assistance of the defendant and Timeya Harris.
He said that the defendant planned the robbery, provided the handgun used in the
robbery, and acted as the driver. Mr. Smith identified text messages he exchanged with
the defendant while planning the robbery. Ms. Harris testified and confirmed Mr.
Smith’s testimony that the defendant planned the robbery and provided the handgun that
Mr. Smith used to commit the robbery.

              After committing the robbery, Mr. Smith returned to the defendant’s car
and returned the gun to the defendant, who wiped the gun and put it into her backpack.
Mr. Smith, Ms. Harris, and the defendant split the proceeds of the robbery three ways.
Mr. Smith then changed clothes in the backseat of the defendant’s car and put his clothes
into his backpack. Ms. Harris removed the black hat and black polo shirt she had worn
during the robbery. The defendant then drove to Montgomery Village, where they visited
briefly with Ms. Harris’s sister. As they left, the police stopped the car.



                                             -2-
               Knoxville Police Department Officer Dana Crocker effectuated a “felony
stop” of a vehicle being driven by the defendant after confirming that it met the
description of the getaway vehicle described by Mr. Puri. Both Mr. Smith and Ms. Harris
were passengers in the vehicle. Inside the vehicle, Officer Crocker “observed a backpack
in the rear seat . . . and it was open.” Inside the backpack she saw “red sweat pants,
sweat shirt, which is what the information was given through dispatch . . . that one of the
suspects had red on at the time of the incident.” Mr. Smith confirmed that that backpack
and clothing belonged to him. Officers found a second backpack, which Ms. Harris
identified as belonging to the defendant, in the trunk of the car. That bag contained the
loaded .22 caliber revolver identified by Mr. Smith as the weapon used in the robbery and
personal items belonging to the defendant, including the defendant’s iPhone and pieces of
mail addressed to her.

              Based upon this evidence, the jury convicted the defendant as charged of
alternative counts of aggravated robbery.

              In a bifurcated proceeding, Ms. Harris testified that the defendant was a
member of the 127 Athens Park Bloods criminal gang. Ms. Harris recalled that,
following a 30-day “observation” period, the defendant was “jumped in” to the Athens
Park Bloods, leaving the defendant with “two black eyes.” After that, the defendant
carried a red bandana as a symbol of her gang membership. Ms. Harris testified that the
defendant attempted to recruit her and Mr. Smith into the Athens Park Bloods.

                The State presented certified copies of convictions of other members of the
Athens Park Bloods: Eric Burney (aggravated assault), Dwight Schooler (possession with
intent to sell less than .5 grams of cocaine), Justin Jackson (aggravated assault), Jefferson
Grady (aggravated burglary), Zachary Siler (attempted especially aggravated robbery),
Anthony Page (attempted possession with intent to sell cocaine), Antoneo Williams
(attempted first degree murder), and Dayquan Shannon (aggravated robbery and unlawful
weapons possession).

              Mr. Smith testified that he was a member of the Four Hundred Block Tree
Top Piru, an affiliate of the Bloods criminal gang, and that the defendant was a member
of the 127 Athens Park Bloods, a separate affiliate of the Bloods. He identified text
messages between him and the defendant concerning membership in their gangs and a
gang-related shooting. In the messages, Mr. Smith told the defendant that he wanted to
leave the Four Hundred Block Tree Top Piru “because they jumped” him and wanted to
join the 127 Athens Park Bloods. He told the defendant that he wore his “red flag,” or
red bandana, as proof of his allegiance to the Bloods.



                                             -3-
               Knox County Sheriff’s Office Gang Intelligence Unit Officer Thomas
Walker testified as an expert witness on criminal gang culture. Officer Walker said that
the Athens Park Bloods originated in the Rosedale community on the west side of Los
Angeles in the early 1970s and that each block of Figueroa Boulevard between 120th
Street to 127th Street “has its own click.” The Athens Park Bloods eventually made their
way to Knoxville via Atlanta sometime in 2009. He explained that “Folk Nation” and
“People Nation” are the rival gangs at the top of the criminal gang hierarchy in the United
States. The Bloods, he said, fall within the People Nation, and the Athens Park Bloods
fall within the Bloods. Within the Athens Park Bloods, “there are seven different clicks”
in Knoxville. Other gangs affiliated with the Bloods in Knoxville include the Tree Top
Pirus and the East Side Bloods.

               Officer Walker testified that he and other members of the Gang Intelligence
Unit keep track of 1,503 known gang members in Knox County. He verified that his unit
had confirmed that Messrs. Burney, Schooler, Jackson, Grady, Siler, Page, Williams, and
Shannon were members of the Athens Park Bloods. He said that the defendant had been
“confirmed as an Athens Park Blood gang member” going by “the street name Lady
Park.” He explained, “We have her with graffiti, picture of her throwing a hand sign,
wearing gang colors, known gang association, federal criminal history, outside
jurisdictional information . . . . And then arrested on a violent crime.” The defendant’s
Facebook page also included the name Lady Park and featured a photo of her making a
gang sign and a list of her Facebook friends included several known members of the
Athens Park Bloods. Officer Walker testified that he had no file on Ms. Harris but did
have Mr. Smith as a confirmed member of Four Hundred Block Tree Top Piru, “which is
another Blood set.”

           Based upon this evidence, the jury found that the defendant was a criminal
gang member and that she had committed a criminal gang offense.

              Following a sentencing hearing, the trial court imposed a Range I, Class A
felony sentence of 15 years, to be served at 85 percent by operation of law. The
defendant filed a timely but unsuccessful motion for new trial followed by a timely notice
of appeal.

               In this appeal, the defendant contends that the evidence was insufficient to
support both her conviction of aggravated robbery and the jury’s finding that she was a
member of a criminal gang. Additionally, the defendant asserts that Tennessee Code
Annotated section 40-35-121 is unconstitutional on its face because it is overbroad so as
to impinge upon her constitutional right to freedom of speech and because it offends
principles of due process.

                                            -4-
                                       I. Sufficiency

              The defendant argues that the evidence was insufficient to support the
underlying conviction of aggravated robbery because the State failed to introduce
sufficient evidence to corroborate the testimony of Mr. Smith and Ms. Harris. She also
argues that the State failed to introduce sufficient corroboration of the accomplice
testimony during the gang enhancement phase, rendering the evidence of her membership
in the Athens Park Bloods insufficient.

              We review the defendant’s claim of insufficient evidence mindful that our
standard of review is whether, after considering the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.
307, 319 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This
standard applies to findings of guilt based upon direct evidence, circumstantial evidence,
or a combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d
370, 379 (Tenn. 2011).

               When examining the sufficiency of the evidence, this court should neither
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.
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. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must
afford the State the strongest legitimate view of the evidence contained in the record as
well as all reasonable and legitimate inferences which may be drawn from the evidence.
Id.

             It is well settled “that a conviction may not be based solely upon the
uncorroborated testimony of an accomplice to the offense.” State v. Bane, 57 S.W.3d
411, 419 (Tenn. 2001) (citing State v. Stout, 33 S.W.3d 531 (Tenn. 2001); State v.
Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994); Monts v. State, 379 S.W.2d 34, 43 (Tenn.
1964)). Indeed, “[w]hen the only proof of a crime is the uncorroborated testimony of one
or more accomplices, the evidence is insufficient to sustain a conviction as a matter of
law.” State v. Jones, 450 S.W.3d 866, 888 (Tenn. 2014) (citing State v. Collier, 411
S.W.3d 886, 894 (Tenn. 2013) (citing State v. Little, 402 S.W.3d 202, 211–12 (Tenn.
2013)). By way of explanation, our supreme court has stated:

              There must be some fact testified to, entirely independent of
              the accomplice’s testimony, which, taken by itself, leads to
              the inference, not only that a crime has been committed, but
              also that the defendant is implicated in it; and this
                                             -5-
              independent corroborative testimony must also include some
              fact establishing the defendant’s identity. This corroborative
              evidence may be direct or entirely circumstantial, and it need
              not be adequate, in and of itself, to support a conviction; it is
              sufficient to meet the requirements of the rule if it fairly and
              legitimately tends to connect the defendant with the
              commission of the crime charged. It is not necessary that the
              corroboration extend to every part of the accomplice’s
              evidence.

Bane, 57 S.W.3d at 419 (quoting Bigbee, 885 S.W.2d at 803); see also State v. Fowler,
373 S.W.2d 460, 463 (Tenn. 1963).

               The State concedes, and the evidence unquestioningly establishes, that both
Mr. Smith and Ms. Harris were accomplices. Both admitted their participation in the
offense at trial, and both pleaded guilty to a charge of aggravated robbery.

                                   A. Aggravated Robbery

              As charged in this case, aggravated robbery is “robbery as defined in § 39-
13-401 . . . [a]ccomplished with a deadly weapon or by display of any article used or
fashioned to lead the victim to reasonably believe it to be a deadly weapon.” T.C.A. §
39-13-402(a)(1). “Robbery is the intentional or knowing theft of property from the
person of another by violence or putting the person in fear.” Id. § 39-13-401(a). “A
person commits theft of property if, with intent to deprive the owner of property, the
person knowingly obtains or exercises control over the property without the owner’s
effective consent.” Id. § 39-14-103(a). A deadly weapon is defined as “[a] firearm or
anything manifestly designed, made or adapted for the purpose of inflicting death or
serious bodily injury; or [a]nything that in the manner of its use or intended use is capable
of causing death or serious bodily injury.” Id. § 39-11-106(a)(5).

              Moreover, “[a] person is criminally responsible as a party to an offense, if
the offense is committed by the person’s own conduct, by the conduct of another for
which the person is criminally responsible, or by both.” T.C.A. § 39-11-401(a).
Additionally, criminal responsibility for the actions of another arises when the defendant,
“[a]cting with intent to promote or assist the commission of the offense, or to benefit in
the proceeds or results of the offense, . . . solicits, directs, aids, or attempts to aid another
person to commit the offense.” Id. § 39-11-402(2); see State v. Lemacks, 996 S.W.2d
166, 170 (Tenn. 1999) (“As reflected in this case, criminal responsibility is not a separate,
distinct crime. It is solely a theory by which the State may prove the defendant’s guilt of
the alleged offense . . . based upon the conduct of another person.”).
                                               -6-
              Mr. Smith and Ms. Harris testified that the defendant planned the robbery,
provided the weapon, and acted as the driver. Mr. Puri testified that he observed a
woman behind the wheel of a suspicious vehicle immediately after the robbery, and
although he did not positively identify the defendant as the driver, he confirmed that a
photograph of the defendant “could fit the description of the driver.” When Officer
Crocker stopped the vehicle a short time later, the defendant was driving and Mr. Smith
and Ms. Harris were passengers. Officers found a backpack in the trunk of the vehicle
that contained personal items belonging to the defendant and the .22 caliber revolver used
in the robbery. In our view, Mr. Puri’s testimony as well as the discovery of the weapon
inside the defendant’s backpack “fairly and legitimately tends to connect” the defendant
to the robbery of the Grocery and Tobacco Market and corroborates the accomplice
testimony. Little, 402 S.W.3d at 212. In consequence, we find the evidence sufficient to
support the defendant’s conviction of aggravated robbery.

                                       B. Gang Enhancement

              The version of Tennessee Code Annotated section 40-35-121 in effect at
the time of the offense in this case defined “‘[c]riminal gang’” as

                a formal or informal ongoing organization, association or
                group consisting of three (3) or more persons that has:

                    (A) As one (1) of its activities the commission of criminal
                    acts; and

                    (B) Two (2) or more members who, individually or
                    collectively, engage in or have engaged in a pattern of
                    criminal gang activity;

T.C.A. § 40-35-121(a)(1)(2014).1 “‘Criminal gang member’” is defined as

                a person who is a member of a criminal gang, as defined in
                subdivision (a)(1), who meets two (2) or more of the
                following criteria:

                    (A) Admits to criminal gang involvement;


1
        This version of the statute became effective on July 1, 2013. See 2013 Pub. Acts, c. 357, §§ 1 to
3; 2013 Pub. Acts, c. 415, § 1.
                                                   -7-
                 (B) Is identified as a criminal gang member by a parent or
                 guardian;

                 (C) Is identified as a criminal gang member by a
                 documented reliable informant;

                 (D) Resides in or frequents a particular criminal gang’s
                 area, adopts their style or dress, their use of hand signs or
                 their tattoos and associates with known criminal gang
                 members;

                 (E) Is identified as a criminal gang member by an
                 informant of previously untested reliability and the
                 identification is corroborated by independent information;

                 (F) Has been arrested more than once in the company of
                 identified criminal gang members for offenses that are
                 consistent with usual criminal gang activity; or

                 (G) Is identified as a criminal gang member by physical
                 evidence such as photographs or other documentation;

Id. § 40-35-121(a)(2). As charged in this case, “‘[c]riminal gang offense’ means” “[t]he
commission . . . of . . . [a]ggravated robbery, as defined in § 39-13-402.” Id. § 40-35-
121(a)(3)(B)(x). “A criminal gang offense committed by a defendant who was a criminal
gang member at the time of the offense shall be punished one (1) classification higher
than the classification established by the specific statute creating the offense committed.”
Id. § 40-35-121(b).

              The defendant concedes that the Athens Park Bloods qualify as a criminal
gang and that aggravated robbery qualifies as a criminal gang offense. She argues,
however, that the State failed to establish that she was a member of the Athens Park
Bloods. The jury found that the defendant was a criminal gang member based upon its
findings that the defendant “[r]esides in or frequents a particular criminal gang’s area,
adopts their style or dress, their use of hand signs or their tattoos and associates with
known criminal gang members” and that she “[i]s identified as a criminal gang member
by physical evidence such as photographs or other documentation.” See id. § 40-35-
121(a)(2)(D), (G).

            In our view, the evidence was sufficient to support these findings. Both
Mr. Smith and Ms. Harris testified that the defendant was a member of the Athens Park
                                             -8-
Bloods, and their testimony was corroborated by other evidence in the record. Text
messages exchanged by the defendant and Mr. Smith include several references to the
Athens Park Bloods and the defendant’s membership in the gang. Officer Walker
testified that the defendant had been “confirmed” by the Gang Intelligence Unit as a
member of the Athens Park Bloods who used the street name “Lady Park.” He explained
that gang members often used “Park or Blood or Athens in part of their street names as
they go.” Officer Walker identified photographs from her Facebook page that showed
the defendant making a hand gesture “which is West Side, which stands for the west
coast or on the west side of LA.” He said that the hand sign “is standard for the Athens
Park[] Bloods to use west or west up . . . basically showing homage to . . . West Coast or
the west side of LA.” Her list of Facebook friends also included several known members
of the criminal gang.

                      II. Constitutionality of Code Section 40-35-121

              The defendant asserts that Code section 40-35-121(a)(2)(D) and (G), the
applicable portions of the statute which define “criminal gang member” are both
unconstitutionally vague and overbroad, arguing that the statute “defines behavior so
broadly that it includes regulation of both undesirable and constitutionally protected
conduct.” She contends that the statute offends the first amendment because it
criminalizes “otherwise protected speech,” observing that “[n]icknames, clothing, hand
signs and tattoos are used by many people in a variety of constitutionally protected
contexts, to express a point of view and communicate with others.” In addition to these
challenges, the defendant raises a facial challenge to Code section 40-35-121(b), arguing
that that portion of the statute lacks a sufficient nexus between the sentencing
enhancement and the legislative purpose of curtailing illegal gang activity. The State
argues that the defendant has waived her right to challenge the constitutionality of the
applicable statutory provisions by failing to raise a constitutional challenge prior to trial.

              We address first the State’s claim that the defendant has waived plenary
review of her constitutional challenges by failing to challenge the constitutionality of the
statute prior to her trial. The defendant concedes that she failed to challenge the
constitutionality of the gang enhancement statute prior to trial but notes that she did so in
her motion for new trial, which gave the trial court an opportunity to pass on the
constitutionality of the statute. Thus, she says, she has not waived our consideration of
this issue. In the alternative, she urges this court to consider the constitutionality of the
statute under plain error review.

            In her motion for new trial, the defendant alleged that “[t]he gang
enhancement as applied to her was unconstitutional. It was unconstitutionally vague and
overbroad.” The defendant did not present evidence at the hearing on her motion,
                                             -9-
choosing instead to stand on the allegations in her motion. Her counsel reiterated the
claim that the gang enhancement statute was unconstitutional, noting that he had
challenged the constitutionality of the gang enhancement statute “many times before this
court” on “the same basis.” The trial court ruled,

                        As to the constitutionality of the gang statute, I’ve
                ruled on that before that I think it is constitutional. The – if
                there is a problem with the gang statute, I think it’s the pre-
                2013 where it’s a little more morphosed [sic]. In 2013, the
                legislature specifically defined what they believe were gang-
                related offenses, and that made that nexus between that crime
                and the gang activity, in my mind, and so I think it is
                constitutional.

The ruling of the trial court discussing the “nexus between th[e] crime and the gang
activity” appears to indicate that, although the defendant’s written motion limited the
constitutional challenge to a claim of vagueness or overbreadth, the trial court had
considered the challenge in terms of substantive due process.

              The State, citing State v. Rhoden and State v. Farmer, insists that the
defendant waived consideration of her constitutional challenge by failing to raise the
issue prior to trial, arguing that “the waiver provision” of Tennessee Rule of Criminal
Procedure 12(f) “applies to issues embracing the constitutionality of statutes.”

              In State v. Bonds, this court concluded that although “proscribing harmful
street gang activity is a proper legislative purpose,” Code section 40-35-121(b) “lacks a
reasonable relationship to achieving the legitimate legislative purpose of deterring
criminal gang activity and therefore violates the principles of substantive due process.”
State v. Bonds, 502 S.W.3d 118, 156, 157 (Tenn. Crim. App. 2016).2 Additionally, when
discussing the severability of any unconstitutional portions of the gang enhancement
statute, we concluded that Code section “40-35-121(e) also fails for lack of a nexus.” Id.
at 162. Because we deemed those provisions facially unconstitutional, we vacated the
criminal gang enhancements imposed on Bonds and his co-defendants and remanded the
case for resentencing on modified judgments. Id. at 167.

              The opinion in Bonds contains no indication whether the defendants in that
case raised the constitutional challenge to the gang enhancement statute prior to trial and

2
         The legislature did, as the trial court suggested, amend the gang enhancement statute in 2013.
That amendment, however, did not alter Code sections 40-35-121(b) or (e) in a manner that rendered
either provision constitutional.
                                                   -10-
thus, contains no discussion of the Rule 12 waiver provision.3 Other panels of this court
addressing the constitutionality of the gang enhancement statute have agreed that a
defendant must “challenge the constitutionality of the criminal gang enhancement statute
prior to trial through a motion to dismiss in order to have properly preserved this issue for
appeal.” State v. Ronald Turner, No. E2016-00790-CCA-R3-CD, slip op. at 8 (Tenn.
Crim. App., Knoxville, Apr. 13, 2017); see State v. Gerald Lamont Byars, No. W2016-
00005-CCA-R3-CD, slip op. at 22-23 (Tenn. Crim. App., Jackson, Feb. 27, 2017); State
v. Christopher Minor, No. W2016-00348-CCA-R3-CD, slip op. at 13-15 (Tenn. Crim.
App., Knoxville, Feb. 16, 2017); State v. William Jermaine Stripling, No. E2015-01554-
CCA-R3-CD, slip op. at 6-7 (Tenn. Crim. App., Knoxville, June 16, 2016); cf. Ronnie
Lamont Harshaw v. State, No. E2015-00900-CCA-R3-PC, slip op. at 16-18 (Tenn. Crim.
App., Knoxville, Mar. 24, 2017). Of these panels, only the majority in Christopher
Minor refused to consider the defendant’s challenge to the constitutionality of the statute,

3
        Rule 12 provides, in pertinent part:

                (b) Pretrial Motions.

                (1) Motions That May Be Made Before Trial. A party may raise by
                pretrial motion any defense, objection, or request that the court can
                determine without a trial of the general issue.

                (2) Motions That Must Be Made Before Trial. The following must be
                raised before trial:

                (A) a motion alleging a defect in the institution of the prosecution;
                (B) a motion alleging a defect in the indictment, presentment, or
                information--but at any time while the case is pending, the court may
                hear a claim that the indictment, presentment, or information fails to
                show jurisdiction in the court or to charge an offense;
                (C) a motion to suppress evidence;
                (D) a Rule 16 request for discovery; and
                (E) a Rule 14 motion to sever or consolidate charges or defendants.

                         ....

                (f) Effect of Failure to Raise Defenses or Objections. Unless the court
                grants relief for good cause, a party waives any defense, objection, or
                request by failing to comply with:

                (1) rules requiring such matters to be raised pretrial;
                (2) any deadline set by the court under Rule 12(c); or
                (3) any deadline extension granted by the court.

Tenn. R. Crim. P. 12(b), (f).

                                                   -11-
concluding that Minor had waived the issue by raising it for the first time on appeal and
that plain error was not appropriate because no clear and unequivocal rule of law had
been breached. See Christopher Minor, slip op. at 13-15. As to the latter holding, the
Minor majority, citing a footnote in Taylor v. State, 995 S.W.2d 78, 85 n.7 (Tenn. 1999),
reasoned that because this court did not declare Code section 40-35-121(b)
unconstitutional until after Minor’s sentencing under the statute, the trial court did not err
by using the statute to enhance his sentence. Id. The dissent agreed that plenary review
was not available to Minor but determined that he was entitled to retroactive application
of the ruling in Bonds because his case was in the appellate pipeline at the time Bonds
was filed. Christopher Minor, dissent slip op. at 2-3.

              The Ronald Turner, Gerald Lamont Byars, and Ronnie Lamont Harshaw
panels grappled with the issue of retroactive application of the ruling in Bonds before
concluding that the opinion should be applied retroactively. See Ronald Turner, slip op.
at 8-10 (holding that Bonds applies to all cases in the appellate pipeline at the time it was
filed); Gerald Lamont Byars, slip op. at 24-25 (holding that, because Bonds should be
applied to all cases in the appellate pipeline at the time it was filed, Byars had satisfied
the prerequisites to plain error review); Ronnie Lamont Harshaw, slip op. at 17-18
(holding that Bonds announced a new rule of constitutional law to be applied
retroactively on collateral attack). The Stripling panel did not discuss the issues of plain
error or retroactive application at all, using the ruling in Bonds as support for its own
independent determination that Code section 40-35-121(b) was unconstitutional. See
William Jermaine Stripling, slip op. at 10-11.

              As we will explain more fully below, it is our view that the Rule 12 waiver
provision does not apply and that this court need not resort to a determination of
retroactive application of Bonds under the circumstances in this case.

               We begin with an analysis of the origin of the State’s claim that all
constitutional challenges must be raised prior to trial or face waiver under Rule 12. In
Rhoden, Rhoden “challenged the constitutionality of the statute proscribing the use of
minors for obscene purposes,” arguing that “the definition of ‘sexual conduct’ is
overbroad because it prohibits using a minor to pose or model in the nude.” State v.
Rhoden, 739 S.W.2d 6, 10 (Tenn. Crim. App. 1987). This court observed that Rhoden
“did not file a pre-trial motion attacking the indictment on the ground the statute was
unconstitutional” and instead “raised this issue for the first time post-trial in his motion
for a new trial.” Id. Viewing Rhoden’s constitutional attack as a challenge to the validity
of the indictment, we noted that, pursuant to Rule 12, attacks on the indictment “must be
raised prior to trial” and that the failure to do so resulted in waiver of the issue on appeal.
Id. (citing Tenn. R. Crim. P. 12(b); State v. Farmer, 675 S.W.2d 212, 214 (Tenn. Crim.
App. 1984); State v. Hill, 623 S.W.2d 293 (Tenn. Crim. App. 1981)). We said that “[t]he
                                             -12-
waiver provision of Rule 12 applies to issues embracing the constitutionality of statutes
as well as the constitutional rights of the accused.” Id. (citing Farmer, 675 S.W.2d at
214; State v. Foote, 631 S.W.2d 470, 472-73 (Tenn. Crim. App. 1982)).

               Although Rhoden’s broad language appears to indicate that any
constitutional challenge must be brought prior to trial or be subject to waiver under Rule
12, a careful examination of the various legal principles reveals, however, that the waiver
provision of Rule 12 cannot apply to a claim that the proscriptive statute is itself
unconstitutional on its face.

              The operative language of Rule 12 provides:

              (b) Pretrial Motions.

              (2) Motions That Must Be Made Before Trial. The following
              must be raised before trial:

                     ....

              (B) a motion alleging a defect in the indictment, presentment,
              or information--but at any time while the case is pending, the
              court may hear a claim that the indictment, presentment, or
              information fails to show jurisdiction in the court or to
              charge an offense;

                     ....

              (f) Effect of Failure to Raise Defenses or Objections. Unless
              the court grants relief for good cause, a party waives any
              defense, objection, or request by failing to comply with:

              (1) rules requiring such matters to be raised pretrial;

              (2) any deadline set by the court under Rule 12(c); or

              (3) any deadline extension granted by the court.

Tenn. R. Crim. P. 12(b)(2)(B), (f) (emphasis added).

               Despite our statement suggesting the contrary, Rhoden did not involve a
facial constitutional challenge to the proscriptive statute itself but was instead a challenge
                                            -13-
to the statute that supplied the definition for one of the terms in the proscriptive statute.
Rhoden, 739 S.W.2d at 10. We agree that such a challenge must be raised prior to trial or
it is waived.

               In support of its broad proclamation, Rhoden cited State v. Farmer, a case
that involved a caption clause challenge to the proscriptive statute. Farmer, 675 S.W.2d
at 214. Observing that the defendant did not raise his caption clause challenge prior to
trial, we stated that “the failure to make a motion to dismiss the indictments prior to trial
constituted a waiver of this issue.” Id. (citing Tenn. R. Crim. P. 12(b)(2)). A caption
clause challenge to a codified statute would not necessarily result in a conclusion that the
statute is void because “the codification of the statute cure[s] any defect in the caption.”
Farmer, 675 S.W.2d at 214 (citing Howard v. State, 569 S.W.2d 861, 863 (Tenn. Crim.
App. 1978)). For this reason, we agree that a caption clause challenge not raised prior to
trial is waived.

               Rhoden also cited State v. Hill, a case that did not involve a constitutional
challenge at all. Instead, Hill claimed that the State failed to establish “that the offense
occurred on a date prior to the finding of the indictment” and that the State failed to show
“that the grand jury returned the indictment within a year.” State v. Hill, 623 S.W.2d
293, 295 (Tenn. Crim. App. 1981). We concluded that the waiver provision of Rule 12
operated as a bar to both claims. We noted, however, that the waiver provision would not
apply to challenges to the indictment based on “lack of jurisdiction or failure to charge an
offense.” Id. In other words, a void charge in the indictment is not subject to the
strictures of Rule 12.

              Like Farmer, State v. Foote, the final case cited by Rhoden, did not address
the application of the Rule 12 waiver provision to a claim that the proscriptive statute was
unconstitutional on its face. Prior to trial, Foote filed a motion to suppress evidence
obtained during the search of his person following his arrest and the identification made
by an eyewitness at the scene. Following a hearing, the trial court “found that the officers
had probable cause for the arrest and that the ensuing search was lawful. [It] also found
that the identification of the defendants by one of the victims at the scene of the arrest
was not tainted.” Foote, 631 S.W.2d at 472 (Tenn. Crim. App. 1982). Foote’s
codefendant, Robert Lee, Jr., did not move to suppress the evidence prior to trial and
instead filed a motion to suppress on the second day of the trial. We held that Lee
waived his claim by failing to raise it prior to trial.

              Although these cases support the proposition that some issues of
constitutional dimension must be raised prior to trial or be waived, they do not support a
broad proclamation that the Rule 12 waiver provision is applicable to all constitutional
challenges.
                                            -14-
               When a statute is unconstitutional on its face, “‘no set of circumstances
exists under which the statute, as written, would be valid.’” Bonds, 502 S.W.3d at 161
(quoting Waters v. Farr, 291 S.W.3d 873, 882 (Tenn. 2009)).                     Such “[a]n
unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no
protection; it creates no office; it is, in legal contemplation, as inoperative as though it
had never been passed.” Norton v. Shelby Cty., 118 U.S. 425, 442 (1886). In
consequence, a claim that the proscriptive statute is unconstitutional on its face strikes at
the jurisdiction of the convicting court and, as a result, may be raised at any time before
the sentence has expired, even in a petition for writ of habeas corpus. See Archer v.
State, 851 S.W.2d 157, 160 (Tenn. 1993) (“[T]he writ is available to contest convictions
imposed under unconstitutional statutes, because an unconstitutional law is void and can,
therefore, create no offense.”); see also, e.g., John H. Williams, Jr., v. Kevin Myers,
Warden, No. M2002-00855-CCA-R3-CO (Tenn. Crim. App., Nashville, Dec. 20, 2002)
(“If the statute were unconstitutional, it would be void from its date of enactment, and
therefore, the trial court would have lacked the subject matter jurisdiction to hear the
Petitioner’s case, rendering its judgment of conviction void.”). Under this doctrine, as
our supreme court has repeatedly recognized, a criminal statute that is unconstitutional on
its face is “void from the date of its enactment” and cannot, therefore, provide the basis
for a “valid conviction.” State v. Dixon, 530 S.W.2d 73, 74 (Tenn. 1975) (citing
Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); Stone v. Wainwright, 478 F.2d
390 (5th Cir. 1973); Bannister v. United States, 446 F.2d 1250 (3rd Cir. 1971); O’Brien
v. Rutherford Cty., 288 S.W.2d 708 (Tenn. 1956); State v. Hobbs, 250 S.W.2d 549 (Tenn.
1952)); see also Capri Adult Cinema v. State, 537 S.W.2d 896, 900 (Tenn. 1976)
(observing the general rule that “an unconstitutional criminal statute is ‘void from the
date of its enactment’, and that there can be no valid conviction thereunder.”); see also,
e.g., State v. Mark Spencer King, No. 01C01-9608-CR-00343 (Tenn. Crim. App.,
Nashville, Sept. 18, 1997) (“In this jurisdiction, an unconstitutional statute or an
amendment to a constitutional statute is void ab initio-from the date of its enactment.”);
cf. State v. Driver, 598 S.W.2d 774, 776 (Tenn. 1980) (“An unconstitutional act designed
to amend or supersede an existing law does not repeal or change the former valid act but
leaves it in full force and effect.”); Leech v. American Booksellers Ass’n, Inc., 582
S.W.2d 738, 740 (Tenn. 1979) (same).

              Our supreme court has recognized that the void ab initio “doctrine is alive
and well in this state.” Edwards v. Allen, 216 S.W.3d 278, 291 (Tenn. 2007) (citing In re
Boyd, 189 F. Supp. 113, 116 (M.D. Tenn. 1959); State ex rel. Barker v. Harmon, 882
S.W.2d 352, 356-57 (Tenn. 1994); Planned Parenthood Ass’n of Nashville, Inc. v.
McWherter, 817 S.W.2d 13, 15-16 (Tenn. 1991); State v. Franks, 772 S.W.2d at 431
(Tenn. 1989); Driver, 598 S.W.2d at 776; Leech, 582 S.W.2d at 755; Capri Adult
Cinema, 537 S.W.2d at 900; Dixon, 530 S.W.2d at 74; Collins, 528 S.W.2d at 818; Bd. of
                                            -15-
Educ. of Memphis City Schs. v. Shelby Cty., 339 S.W.2d 569, 584 (Tenn. 1960); O’Brien,
288 S.W.2d at 710; State v. Hobbs, 250 S.W.2d 549, 553 (Tenn. 1952); Henry Cty. v.
Standard Oil Co., 71 S.W.2d at 684 (Tenn. 1934); Roberts v. Roane Cty., 23 S.W.2d at
243 (Tenn. 1929); Faust v. Metro. Gov’t of Nashville & Davidson Cty., 206 S.W.3d 475,
493 (Tenn. Ct. App. 2006); In re Int’l Fid. Ins. Co., 989 S.W.2d 726, 729 (Tenn. Crim.
App. 1998); Gay v. City of Somerville, 878 S.W.2d 124, 126 (Tenn. Ct. App. 1994);
General Portland Inc. v. Chattanooga-Hamilton Cty. Air Pollution Control Bd., 560
S.W.2d 910, 913 (Tenn. Ct. App. 1976)). To be sure, our supreme court has also
declared that “[b]ecause of the presumption in favor of the constitutionality of statutes,
the public and individuals are bound to observe a statute though unconstitutional, until it
is declared void by an authoritative tribunal.” Franks, 772 S.W.2d at 431. This
expression, however, evinces only the court’s recognition “that the ‘void ab initio’
approach . . . is not appropriate for all circumstances.” State ex rel. Barker v. Harmon,
882 S.W.2d 352, 356 (Tenn. 1994). Because, as the court observed, “the actual existence
of a statute, prior to a judicial determination of its constitutional invalidity ‘is an
operative fact and may have consequences which cannot be justly ignored,’” courts will
give “prospective application to a judicial determination that the statute is
unconstitutional” in those instances when the “parties have acted in reasonable reliance
on the existence and validity of a statute.” Id. (quoting Chicot Cty. Drainage District v.
Baxter State Bank, 308 U.S. 371, 374 (1940)). As the Edwards court explained, “[t]he
modern trend is to find that the void ab initio approach fails when there has been reliance
on an ordinance that has given rise to vested rights.” Edwards, 216 S.W.3d at 291. This
exception, which is essentially one of detrimental reliance, has no application in this case.

               By its plain language, Rule 12 permits claims of a lack of jurisdiction to be
raised at any time. Tenn. R. Crim. P. 12(b)(2)(B). A claim that the proscriptive statute is
facially unconstitutional amounts to a claim that the trial court lacks jurisdiction to
impose a conviction under the statute. Dixon, 530 S.W.2d at 74-75 (Tenn. 1975)
(holding that an unconstitutional statute is “void from the date of its enactment” and
cannot form the basis for a “valid conviction”). Consequently, a facial constitutional
challenge to the proscriptive statute is not subject to the waiver provision of Rule 12.
We observed in Bonds that “[d]espite simply being dubbed by the General Assembly as
‘enhanced punishment,’ the factual requirements of Section 40-35-121 are elements of
the underlying criminal gang offenses because the statute increases the prescribed range
of penalties applicable to a defendant.” Bonds, 502 S.W.3d at 150; see also Alleyne v.
United States, 133 S. Ct. 2151, 2162 (2013) (“When a finding of fact alters the legally
prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part
of a new offense and must be submitted to the jury.”). Because Code section 40-35-
121(b) is part of the operative proscriptive statute and because the defendant has raised a
facial constitutional challenge to that statute, the Rule 12 waiver provision does not
operate to bar appellate review of her claim.
                                            -16-
              Because we have concluded that waiver does not apply in this case, we
need not consider whether the defendant has satisfied the requirements for plain error
review.    Furthermore, as is revealed by our foregoing analysis, the claim of
unconstitutionality in this case raises no issue of retrospective application of the ruling in
Bonds.

              Turning now to the defendant’s claim, although we agree with the holding
in Bonds, appreciate the fine work of that panel in reaching its result, and recognize its
holding as binding precedent, “we fail to see how we would be constrained to uphold a
statute” that is so plainly unconstitutional, even if the ruling in Bonds did not exist.
Gerald Lamont Byars, slip op. at 24; see Veach v. State, 491 S.W.2d 81, 83 (Tenn. 1973)
(concluding that a person “adversely affected, or about to be adversely affected by” an
unconstitutional statute may prevail on a constitutional challenge for the first time on
appeal even “without giving . . . retroactive effect” to the opinion that first declared the
statute unconstitutional). We note, moreover, that our supreme court has determined that
a reviewing court may consider “a constitutional attack upon the validity of a statute,”
even when it is raised “for the first time on appeal” when “the statute involved is so
obviously unconstitutional on its face as to obviate the necessity for any discussion.”
Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn. 1983). This court has now repeatedly
declared Code section 40-35-121(b) facially unconstitutional, thereby obviating the need
for an overwrought discussion of its continuing validity.

               Accordingly, because the evidence was sufficient to support the conviction
and no other error attends the finding of guilt in this case, we affirm the defendant’s
conviction of aggravated robbery. Because, however, that portion of the gang
enhancement statute used to enhance the defendant’s conviction and sentence in this case
is unconstitutional, the judgment of the trial court imposing an enhanced sentence for the
defendant’s gang affiliation is reversed. The judgment is modified to reflect a Class B
felony conviction of aggravated robbery, and the case is remanded for resentencing on
the newly-modified conviction.

                                                    _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




                                            -17-
