     IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                      AT JACKSON
                               August 2, 2016 Session

           STATE OF TENNESSEE v. GEORGE P. WATKINS, III

                Appeal from the Circuit Court for Madison County
                       No. 15-236 Donald H. Allen, Judge
                    ___________________________________

               No. W2015-02095-CCA-R3-CD - Filed April 5, 2017
                    ___________________________________

ROBERT L. HOLLOWAY, JR., J., dissenting.

        I respectfully disagree with the majority‟s conclusion that the trial court
committed plain error by including “that the defendant acted either intentionally,
knowingly, or recklessly” in its jury instruction for possession of a firearm with
intent to go armed during the commission of or attempt to commit a dangerous
felony (hereinafter “the possession offense”). After a review of the entire record
and applicable law, I do not agree that “a clear and unequivocal rule of law [was]
breached” or that “consideration of the error is „necessary to do substantial
justice.‟” State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994).1

                                 Plain Error Review

           A Clear and Unequivocal Rule of Law Must Have Been Breached

        The majority opinion relies on certain language from State v. Fayne, 451
S.W.3d 362 (Tenn. 2014) and the interpretation of the Fayne language in State v.
Tasha Briggs, No. W2014-01214-CCA-R3-CD, 2015 WL 5813664 (Tenn. Crim.
App. Oct. 6, 2015) and State v. Anthony Miller, No. W2016-00402-CCA-R3-CD,
2017 WL 244115 (Tenn. Crim. App. Jan. 20, 2017) to conclude that the law is
clear and unequivocal that intent is the only mens rea applicable to the possession
offense.     I believe the majority‟s interpretation, as well as our court‟s
interpretation in Tasha Briggs and Anthony Miller, overstates the holding in
Fayne, conflicts with Tennessee Code Annotated section 39-11-301, and if the
third element of the possession offense is a circumstance surrounding the conduct,

       1
          Adkisson quoted Tenn. R. Crim P. 52(b), which has now been deleted. The harmless
error rule now appears in Tenn. R. App. P. 36. The five part “Adkisson test” was formally
adopted by our supreme court. State v. Smith, 24 S.W.3d 274, 283 (Tenn. 2000).
conflicts with State v. Clark, 452 S.W.3d 268 (Tenn. 2014) and State v. Page, 81
S.W.3d 781, 787 (Tenn. Crim. App. 2002), (stating that a “reckless” mens rea may
properly be applied to “the circumstances surrounding [a] defendant‟s conduct or
the result of [a] defendant‟s conduct”).

                                           State v. Fayne

       The issues in Fayne required our supreme court to perform a Burns
statutory elements test to determine if the possession offense was a lesser-included
offense of employment of a firearm during the commission of a dangerous felony
under Tennessee Code Annotated section 39-17-1324(b) (hereinafter “the
employment offense”). See State v. Burns, 6 S.W.3d 453, 466 (Tenn. 1999). The
Fayne court stated: “When parsed, the [possession] offense is comprised of three
separate elements: (1) that the defendant possessed a firearm; (2) that the
possession was with the „intent to go armed‟; and (3) that the first two elements
occurred during the commission or attempted commission of a „dangerous
felony.”‟ Fayne, 451 S.W.3d at 369.

       One of the two stated holdings in Fayne was “that [the possession offense]
qualifies as a lesser[-]included offense of [the employment offense].”2 Id. at 364.
In so holding, the supreme court stated that “the mens rea element of [the
possession offense]—that the possession of the firearm was with the „intent to go
armed‟—is included, by its terms, within the mental states that apply to [the
employment offense] via section 39-11-301(c): intent, knowledge, or
recklessness.” Id. at 370.3 The majority opinion interprets this statement from
Fayne to be an “unambiguous holding” that intent is the only mens rea applicable
to the possession offense. Although I agree that intent is the mental state
applicable to the “mens rea element” of the possession offense, “with the intent to
go armed,” there are three material elements to the possession offense, each of
which must be proven beyond a reasonable doubt to convict a defendant. See
Tenn. Code Ann. § 39-11-201(a).

       I would characterize the first element of the possession offense as the actus
reus, or physical element of the offense, and the third element of the offense as a

        2
          The second holding in Fayne was “that the trial court did not err by refusing the
defendant‟s request for a special instruction on the definition of possession.” Id. at 364.
        3
          While this statement is certainly correct, I believe it is also correct that if either or both
of the less culpable mens rea, knowing or reckless, apply to other material elements of the
possession offense, then those mental states would also be included within the mental states that
apply to the employment offense via Tennessee Code Annotated section 39-11-301(c). Thus the
possession offense would still be a lesser-included offense of the employment offense under
Burns part (b). See Burns, 6 S.W.3d at 466-67.


                                                   2
circumstance surrounding the conduct. A circumstance surrounding the conduct is
an essential element of an offense and must be proven beyond a reasonable doubt
before a defendant can be convicted of the offense. See Tenn. Code Ann. § 39-11-
302(b),(c),(d).4
                                  State v. Clark

        Unlike Fayne, which addressed issues related to lesser-included offenses,
Clark, which was issued two weeks after Fayne, specifically addressed an issue
related to allegedly erroneous jury instructions for rape of a child and aggravated
sexual battery. In Clark, the defendant “argue[d] [that] the trial court committed
reversible error by instructing the jury that the mental state of „recklessness‟
satisfied all the elements of aggravated sexual battery and rape of a child[]” and
claimed this error “„impermissibly lowered the State‟s burden of proof.‟” 452
S.W.3d at 294.

       In its jury instruction for the rape of a child offense, the trial court in Clark
instructed that the defendant could be convicted if the State proved that he acted
intentionally, knowingly, or recklessly. Id. at 296. In determining that the trial
court properly instructed the jury, our supreme court stated:

              The first element of rape of a child is the actus reus—
        “unlawful sexual penetration.”          Because Tenn[essee] Code
        Ann[otated] [section] 39-13-522(a) does not contain a specific
        mental state for this offense, the generic mens rea statute fills in the
        gap. The unlawful sexual penetration may be done intentionally,
        knowingly, or recklessly. Tenn. Code Ann. § 39-11-301(c). ….

               The second element of rape of a child—the fact that “the
        victim is more than three (3) years of age but less than thirteen (13)
        years of age”—is a circumstance surrounding the conduct. Again,
        the statute defines no mental state specific to this element. The
        generic mens rea statute again fills the gap. Because the “reckless”
        mens rea may properly be applied to “the circumstances surrounding
        [a] defendant‟s conduct or the result of [the] defendant‟s conduct,” []
        Page, 81 S.W.3d at 787, a defendant may satisfy this element when
        he or she is reckless, knowing, or intentional regarding the attendant

4
  A circumstance surrounding the conduct differs from an enhancement factor, for example a Drug Free
School Zone Act enhancement factor that the offense occurred in a school zone, in that an enhancement
factor does not have to be proven to convict a defendant of the underlying offense. Enhancement factors,
unlike circumstances surrounding the conduct, are not subject to Tenn. Code Ann. § 39-11-301 and do not
require a mens rea. State v. Smith, 48 S.W.3d 159, 167 (Tenn. Crim. App. 2000). The elements of the
offense, if proven, are sufficient to convict a defendant of the underlying criminal offense, even if the
enhancement factor is not proven.

                                                   3
       circumstance of the age of the victim. See State v. [Joel E.] Blanton,
       No. M2007-01384-CCA-R3-CD, 2009 WL 537558, at *14 (Tenn.
       Crim. App. Mar. 4, 2009) (“[R]eckless conduct is sufficient for the
       element that the victim is less than thirteen years old.”), perm. app.
       denied (Tenn. Aug. 24, 2009).

Id. at 296-97 (emphasis added).

       Concerning aggravated sexual battery, the trial court instructed the jury:

              For you to find [the defendant] guilty of aggravated sexual
       battery, the State must have proven beyond a reasonable doubt the
       existence of the following essential elements:

                (l) that he had unlawful sexual contact with the alleged victim
       ..., in which the defendant intentionally touched her intimate parts or
       the clothing covering the immediate area of her intimate parts; and

               (2) that [the victim] was less than thirteen (13) years of age;
       and

               (3) that he acted either intentionally, knowingly or recklessly.

Id. at 298 (emphasis added).

       Although the aggravated sexual battery statute does not provide a specific
mens rea,5 I believe the instruction given by the trial court in Clark is
fundamentally and substantially similar to the possession offense instruction given
in this case because the jury in both cases was instructed that the State had to
prove that the defendant acted intentionally as to one material element and that he
acted either intentionally, knowingly or recklessly.

       The Clark court stated the following regarding the statute for aggravated
sexual battery:

       As with rape of a child, the fact that the victim is less than thirteen
       years old is a circumstance surrounding the crime. Because any of
       the three mental states listed in Tennessee‟s generic mens rea statute
       may be properly applied to a “circumstance[] surrounding the
       crime,” []Page, 81 S.W.3d at 787, a defendant may violate this

       5
          The mens rea is provided by the definition of sexual contact as an “intentional
touching” in Tennessee Code Annotated section 39-13-501(6). See Clark, 452 S.W.3d at 297-98.
                                             4
      element of the statute by acting recklessly, knowingly, or
      intentionally. See Tenn. Code Ann. § 39-11-301(c).

452 S.W.3d at 297. As previously stated, I would characterize the third element of
the possession offense—which requires that the first two elements occurred
“during the commission or attempted commission a „dangerous felony‟”—as a
circumstance surrounding the conduct of the possession offense. Because the
“reckless” mens rea may properly be applied to “the circumstances surrounding
[a] defendant‟s conduct[,]” see Page, 81 S.W.3d at 787, a defendant may satisfy
this element when he acts recklessly, knowingly, or intentionally regarding the
commission of or attempt to commit a dangerous felony. See Clark, 452 S.W.3d
at 297. If this characterization is accurate, then instructing the jury that the
Defendant acted “intentionally, knowing, or recklessly,” although perhaps
potentially confusing when applied to the second element, “intent to go armed,”
was not a breach of a clear or unequivocal rule of law. As our supreme court
stated in Clark:

      As [the defendant] point[ed] out, the way this instruction was
      structured created a potential for juror confusion concerning the
      applicable mental states. Regarding element (1), the jury instruction
      specifies that the “sexual contact” must have been an intentional
      touching. As we have explained, this core actus reus element of
      aggravated sexual battery must carry an intentional mental state.
      However, element (3) of the jury instructions recites the three mental
      states from the generic mens rea statute in a way that suggests that
      “intentionally, knowingly, or recklessly” could apply to both
      elements (1) and (2). As we have explained, while all three of these
      mental states may apply to the element of the age of the victim in
      element (2), element (1) may only be done intentionally.

      Determining whether this instruction is erroneous is a close call.

Id. at 298 (emphasis added). As was the case in Clark, determining whether the
instruction given by the trial court in this case is erroneous is, in my opinion, a
“close call.” However, a “close call” does not amount to a breach of a clear and
unequivocal rule of law.

          Tennessee Code Annotated sections 39-11-201 and 39-11-301

      Tennessee Code Annotated section 39-11-201(a) states in pertinent part:

      (a) No person may be convicted of an offense unless each of the
          following is proven beyond a reasonable doubt:

                                        5
             (1) The conduct, circumstances surrounding the conduct, or a
                 result of the conduct described in the definition of the
                 offense;

             (2) The culpable mental state required[.]

Tenn. Code Ann. § 39-11-201(a)(1)-(2).

       Tennessee Code Annotated section 39-11-301, sometimes referred to
as the generic mens rea statute, provides:

                 (a)(1) A person commits an offense who acts intentionally,
         knowingly, recklessly or with criminal negligence, as the definition
         of the offense requires, with respect to each element of the offense.

                (2) When the law provides that criminal negligence suffices
         to establish an element of an offense, that element is also established
         if a person acts intentionally, knowingly or recklessly. When
         recklessness suffices to establish an element, that element is also
         established if a person acts intentionally or knowingly. When acting
         knowingly suffices to establish an element, that element is also
         established if a person acts intentionally.

                (b) A culpable mental state is required within this title unless
         the definition of an offense plainly dispenses with a mental element.

                (c) If the definition of an offense within this title does not
         plainly dispense with a mental element, intent, knowledge or
         recklessness suffices to establish the culpable mental state.

Tenn. Code Ann. § 39-11-301 (emphasis added).6



6
  In State v. Jennie Bain Ducker, our court provided a historical analysis of the development of the culpable
mental states from common law, to the Model Penal Code, and subsequently to the Tennessee Criminal
Code, stating: “The definition of each culpability term with respect to each „conduct element‟ of an offense
reflects a fundamental and critical principle of the Model Penal Code‟s culpability scheme, the application
of an „element analysis‟ of culpability requirements, i.e., different degrees of culpability may be required
with respect to different elements of the same offense. See [Paul H.] Robinson, Element Analysis in
Defining Criminal Liability: The Model Penal Code and Beyond, 35 Stan. L. Rev. at 699.” State v. Jennie
Bain Ducker, No. 01C01-9704-CC-00143, 1999 WL 160981, at *16 (Tenn. Crim. App. Mar. 25, 1999),
aff‟d, 27 S.W.3d 889 (Tenn. 2000). Although our Supreme Court affirmed, it did not address our court‟s
analysis of the development of culpable mental states.

                                                     6
        If the majority‟s conclusion that intent is the only mens rea applicable to
the possession offense is correct, then either: (1) no mental state is required to be
proven for the first and third elements of the possession offense, or (2) the
intentional mental state applies to all three elements. The first alternative is at
odds with my reading of section 39-11-301(a)(1), which can be interpreted as
requiring the State to establish a mens rea for each material element of the offense.
The second alternative would mean that, in the context of the possession offense,
only an intentional mental state would apply to the third element—that the first
two elements “occurred during the commission or attempted commission a
„dangerous felony‟”—which I believe is a circumstance surrounding the conduct
of the possession offense. That alternative is at odds with Page, which concludes
that the three mental states listed in Tennessee‟s generic mens rea statute may be
properly applied to a “circumstance[] surrounding the crime[.]” See Page, 81
S.W.3d at 787; Clark, 452 S.W.3d at 297. These two unworkable alternatives also
lead to the conclusion that the trial court did not breach a clear and unequivocal
rule of law.

                 Footnote 2 to T.P.I. - Crim. 36.03(a), 36.04, and 36.08

       Numerous pattern jury instructions for other offenses involving possession
of a weapon with the “intent to go armed” include language that the defendant
“acted either intentionally, knowingly, or recklessly.” 7 These instructions have a
footnote identical or similar to Footnote 2 to T.P.I. - Crim. 36.03(a), 36.04, and
36.08, which states:

        T.C.A. § 39-11-301(b) and T.C.A. § 39-11-301(c) and
        accompanying Sentencing Commission Comment. The Committee
        is of the opinion that the definitions of “knowingly” and
        “recklessly,” although statutorily required, are in conflict with the

        7
           See T.P.I. Criminal 36.03(a) (Possessing or carrying weapons with intent to go armed
on school property); 36.04 (Possessing or carrying weapons on public parks, civic centers,
recreational buildings and grounds [T.C.A. § 39-17-1311 requires intent to go armed for this
offense]); 36.06 (Unlawful possession of a deadly weapon with intent to employ it in commission
of or escape from offense (for offenses committed prior to 1/1/08)); 36.06(a) (Unlawful
possession of a deadly weapon with intent to employ it during the [commission of] [attempt to
commit] [escape from] an offense [for “non-dangerous offenses” committed on or after 1/1/08]);
and 36.06(b) (Unlawful possession of a deadly weapon other than a firearm with intent to employ
it during the [commission of] [attempt to commit] [escape from] a dangerous felony [for offenses
committed on or after 1/1/08]). T.P.I. Criminal 36.08 (Carrying a weapon with intent to go
armed). Pattern instruction containing the generic mens rea and footnote 2 also appears in other
Titles, for example see Part A of T.P.I. Criminal 5.01 (Violation of Rico Act). I acknowledge
that Part A of T.P.I. - 36.06(c), the pattern instruction for the possession offense, does not contain
either the generic mens rea language, “that the defendant acted either intentionally, knowingly, or
recklessly,” footnote 2, or a similar footnote.
                                                  7
       elements of this offense. Because the offense requires an “intent” to
       go armed, some judges believe that only “intentionally” should be
       charged.

       To me, Footnote 2 supports the State‟s argument that the law is not clear
and unequivocal and clearly demonstrates that even with the collective wisdom
and experience of forty-plus trial judges, the Tennessee Pattern Criminal Jury
Instructions Committee cannot reconcile the culpability requirements of Tennessee
Code Annotated section 39-11-301 with certain legal opinions, such as the
majority‟s interpretation of Fayne that intent is the only mens rea applicable to the
possession offense. I recognize that a footnote to the pattern instructions is not
legal authority, but to me this footnote confirms there is no clear and unequivocal
rule of law concerning what mens rea should be instructed for offenses containing
a material element for which there is no mens rea provided and another material
element providing an intentional mental state, such as the possession offense.

      In my opinion, the Defendant has failed to prove that a clear and
unequivocal rule of law has been breached.

       Consideration of the Error is Necessary to do Substantial Justice

       Even if my analysis above is erroneous and a clear and unequivocal law
was breached when the trial court instructed the jury that the Defendant acted
intentionally, knowingly, or recklessly; I would still affirm the trial court because I
believe the Defendant has failed to prove that consideration of the error is
necessary to do substantial justice.

       The majority states:

       Here, the trial court‟s erroneous jury instruction, which misstated the
       elements of the possession of a firearm offense and improperly
       included definitions for the mental states of “knowingly” and
       “recklessly,” likely changed the outcome of trial because it made it
       easier to convict Watkins of this offense.

       In stating that instructing the generic mens rea “likely changed the outcome
of trial,” I assume the majority believes that the jury would probably not
understand that it should apply the definition of intentionally to the “intent to go
armed” element and apply the generic mens rea to the other elements. Based on
the uncontradicted evidence in this case, I do not believe that the generic mens rea
instruction likely changed the outcome of the trial.



                                          8
       In determining that the trial court in Clark did not commit plain error in
instructing the jury on aggravated sexual battery, our supreme court stated:

      Determining whether [the aggravated sexual battery] instruction is
      erroneous is a close call. Despite the ambiguity, a jury which read
      these instructions carefully would likely determine that the “sexual
      contact” element had to be done “intentionally,” regardless of the
      potentially confusing placement of element (3) of the trial court‟s
      jury instructions. Because the words “intentionally touched” occur
      in close proximity to “unlawful sexual contact” in element (1), a
      reasonable jury would probably interpret this to mean that the more
      specific mens rea of “intentionally” had to apply to the
      touching/sexual contact, while the broader mental states contained in
      element (3) applied to all other aspects of the crime.

      But we need not determine whether this instruction was erroneous
      because any error regarding the “reckless” or “knowing” mens rea in
      relation to aggravated sexual battery would be harmless beyond a
      reasonable doubt.      The State‟s theory was that all of [the
      defendant]‟s unlawful conduct was intentional (and for the purpose
      of sexual arousal or gratification). Because neither the State nor [the
      defendant] presented evidence that his behavior might have been
      done recklessly or knowingly (but not intentionally), the jury had no
      occasion to consider these lesser mental states in regard to the actus
      reus of aggravated sexual battery. The uncontradicted evidence
      regarding [the defendant]‟s conduct, including his own confession,
      proved that his conduct was intentional. Even had the jury
      misunderstood the instructions and believed that “reckless” or
      “knowing” behavior satisfied the “sexual contact” element of
      aggravated sexual battery, that misunderstanding would not have
      prejudiced [the defendant] in any way.

Clark, 452 S.W.3d at 298-99 (internal citations omitted).

       Paraphrasing Clark, I believe that the jury in this case “which read these
instructions carefully would likely determine that” the going armed element had to
be done intentionally, regardless of the potentially confusing placement of the
generic mens rea in the trial court‟s jury instructions. See id. Because the word
“intent” occurs immediately before “to go armed,” “a reasonable jury would
probably interpret this to mean that the more specific mens rea of „intentionally‟




                                         9
had to apply” to going armed, “while the broader mental states contained in
element (3) applied to all other aspects of the crime.” See id.8

       The uncontroverted circumstantial evidence in this case was that the
Defendant intended to go armed. “[I]ntent can rarely be shown by direct proof
and must, necessarily, be shown by circumstantial evidence.” Hall v. State, 490
S.W.2d 495, 496 (Tenn. 1973). There was no proof presented that the Defendant
acted knowingly or recklessly in going armed. The circumstantial evidence
consisted of the Defendant‟s loaded pistol being found under the Defendant‟s
mattress next to the Defendant‟s nightstand on which the Defendant‟s marijuana
and baggies were found.

       Even if the jury instruction on the possession offense was erroneous, any
error regarding the reckless or knowing mens rea in relation to going armed
would, in my opinion, be harmless beyond a reasonable doubt.

                                                 Conclusion

       I join in the majority opinion concerning the Defendant‟s convictions for
possession of marijuana with the intent to sell in Count 1, possession of marijuana
with the intent to deliver in Count 2, and possession of drug paraphernalia in
Count 3. I dissent from the majority opinion concerning the Defendant‟s
convictions for possession of a firearm with the intent to go armed during the
commission of a dangerous felony in Counts 4 and 5. I would affirm those
convictions.

                                                      _________________________________
                                                      ROBERT L. HOLLOWAY, JR., JUDGE



8
    Our supreme court provided the following advice in Clark:

           [W]e encourage future courts and the Committee on Pattern Jury Instructions to pursue
           greater precision in explaining the mental states that apply to the separate elements of
           aggravated sexual battery. Instead of including reckless, knowing, and intentional at the
           end of the jury instruction as the trial court did in this case, future courts should specify
           that (1) unlawful sexual contact means intentional touching of the intimate parts or the
           clothing immediately covering the intimate parts, and that this intentional touching must
           be reasonably construed as being for the purpose of sexual arousal or gratification; and
           (2) that the victim was less that thirteen years old, and the defendant acted recklessly,
           knowingly, or intentionally regarding this fact.

Clark, 452 S.W.3d at 299. Until our supreme court addresses the culpable mental states for offenses that
provide an intentional mental state for one element and no mental state for other elements, such as the
numerous weapons offenses, I would encourage future courts to either omit the generic mens rea or follow
the advice in Clark.

                                                       10
