                    IN THE SUPREME COURT OF TENNESSEE
                                AT JACKSON
                        April 10, 2014 Session Heard at McKenzie1

            STATE OF TENNESSEE v. BRODERICK DEVONTE FAYNE

                Appeal by Permission from the Court of Criminal Appeals
                            Circuit Court for Tipton County
                         No. 7219    Joe H. Walker, III, Judge


                  No. W2012-01488-SC-R11-CD - Filed October 27, 2014


The defendant and an accomplice were indicted for aggravated burglary and employment of
a firearm during the commission of a dangerous felony. At the trial of the defendant, the
court denied a request by the defense for a special jury instruction on the definition of actual
and constructive possession as an element of employment of a firearm. The jury convicted
the defendant on both charges, and the trial court imposed an effective nine-year sentence.
On appeal, the defendant argued that the trial court erred by denying his request for the
special jury instruction and by failing to instruct the jury on the crime of possession of a
firearm during the commission of a dangerous felony as a lesser included offense. The Court
of Criminal Appeals affirmed the trial court. We hold that possession of a firearm during the
commission of a dangerous felony qualifies as a lesser included offense of employment of
a firearm during the commission of a dangerous felony. In this instance, however, the
defendant waived the issue, and he is not entitled to relief under the plain error doctrine. We
further hold that the trial court did not err by refusing the defendant’s request for a special
instruction on the definition of possession. Accordingly, the judgment of the Court of
Criminal Appeals is affirmed.

   Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal
                                Appeals Affirmed

G ARY R. W ADE, J., delivered the opinion of the Court, in which S HARON G. L EE, C.J., and
J ANICE M. H OLDER, C ORNELIA A. C LARK, and W ILLIAM C. K OCH, J R., JJ., joined.

Gary F. Antrican (on appeal), District Public Defender; and Parker O. Dixon (on appeal and



        1
          Oral argument was heard on April 10, 2014, at Bethel University in McKenzie, Tennessee, as part
of this Court’s S.C.A.L.E.S. (Supreme Court Advancing Legal Education for Students) project.
at trial) and Melissa Downing (at trial), Assistant District Public Defenders, for the appellant,
Broderick Devonte Fayne.

Robert E. Cooper, Jr., Attorney General and Reporter; Gordon W. Smith, Associate Solicitor
General; Rachel E. Willis, Senior Counsel; D. Michael Dunavant, District Attorney General;
and Billy G. Burk, Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION
                             I. Facts and Procedural History
        On July 14, 2011, two African-American males kicked in the back door of a
Covington residence, and one of the two men pointed a gun at fourteen-year-old Kylan
Spearmon (the “victim”) and forced him to the floor. Within fifteen minutes, the two
individuals ran out the back door. The victim then contacted his aunt, Octavia Buck, who
called the police.

       Sergeant Larry McGarity of the Covington Police Department questioned the victim,
who described one of the burglars as wearing a white tank top, a blue bandana across his
face, and a hat with “balls hanging from it.” Sergeant McGarity discovered a few open
drawers in a bedroom but determined that nothing was missing from the Spearmon residence.

        Twelve days later, a relative notified Broderick Fayne (the “Defendant”) that the
Defendant’s cousin, Rodnicholas Lewis, had admitted his involvement in the burglary and
had implicated the Defendant. Later that day, the Defendant provided a written statement
to the police acknowledging his participation in the crime:

              [Lewis] picked me up and told me that we could get some [guns]
       and[/]or drugs. I agreed to go along with him. We went and parked the car at
       his aunt[’s] house and walked around the house to [Lavondis Boyd’s house].
       We went to the [victim’s] house and entered by kicking in the door and
       proceeded to rob the house[.] [W]e left the house and ran back to his aunt’s
       house[,] fleeing the scene[.]

       The Defendant and Lewis were each indicted for aggravated burglary and employment
of a firearm during the commission of a dangerous felony. Later, Lewis pled guilty to
aggravated burglary, and the State dismissed the firearm charge in exchange for his testimony
in the Defendant’s trial.

       At trial, the victim testified that on the day of the burglary he heard the doorbell ring
and looked out the window but did not answer the door because he did not recognize the
individual outside. Some thirty minutes later, however, the victim heard a “bang[] on the


                                               -2-
[back] door real loudly,” and two men forced their way into the residence. A “dark skinned,
tall”2 male holding a pistol and wearing a white tank top, bandana, and toboggan loudly
ordered the victim to “get down on the floor . . . or [he would] shoot [the victim’s] brains
out.” The victim testified that he saw only a “shadow” of the other burglar as he entered a
bedroom. After about fifteen minutes, the victim heard the burglar who had entered the
bedroom say, “Let’s go,” and both burglars ran out the back door.

        Lewis testified that he, the Defendant, Lavondis Boyd, and two other individuals were
members of a “rap group” called “Trap Money.” He stated that they had a disagreement with
a rival group, “Long Money,” and that Rodney Gude, a member of “Long Money” who was
also the victim’s cousin, often stayed the night at the victim’s residence in Covington, which
was “not even [fifteen] steps” from Boyd’s residence.

       Lewis testified that on the day of the burglary, he drove the Defendant to the Boyd
residence, and Boyd persuaded them to “go over there and kick [in] the door.” According
to Lewis, Boyd first approached the Spearmon residence and rang the doorbell, and when no
one answered, the Defendant kicked in the back door and entered the residence. Lewis
explained that he stepped inside but immediately “got scared” and “turned around and ran.”
Lewis denied having a firearm during the burglary; however, he testified that he saw the
Defendant “pull[] a gun out of his shorts” prior to entering the residence. Lewis claimed that
he said nothing during the course of the burglary.

       Sergeant McGarity also testified for the State. He recalled that during the Defendant’s
interview at the police station, he had claimed that Lewis was the one who used the firearm
during the burglary.

       Sharon Russell, a cousin to both Lewis and the Defendant, testified that she had
overheard the Defendant’s statement to Sergeant McGarity. She stated that “[i]t was said that
there was a gun,” but she claimed that the Defendant had informed Sergeant McGarity that
Lewis did not have one.

       The Defendant’s testimony was consistent with the written statement he provided to
the police. He claimed that after he kicked in the door, he entered a room on his left,
searched some drawers, and upon failing to find guns or drugs, fled the scene. He denied
possessing or using any kind of weapon and further indicated that he was unaware of whether
Lewis had used a firearm.



        2
        The victim, who was approximately five feet, nine inches tall at the time of the burglary, described
the gunman as “a lot taller” than him.

                                                    -3-
       At the close of proof, the trial court reviewed the proposed jury instructions with
counsel outside the presence of the jury. The trial court informed counsel of its intention to
instruct the jury on aggravated burglary as well as the lesser included offenses of criminal
trespass of a habitation, criminal trespass, and criminal attempt. As to the second count, the
charge for employing a firearm during the commission of a dangerous felony, the following
dialogue took place:

       The Court:            In Count 2, employing a firearm during the commission
                             or attempt to commit aggravated burglary. I don’t know
                             of any lesser included. Does the State know of any lesser
                             included?

       [The State]:          No, sir.

       The Court:            Does the [D]efendant know of any?

       [Defense counsel]: No, Your Honor.

        Defense counsel later submitted a proposed jury instruction for employment of a
firearm during the commission of a dangerous felony, which included a definition of the
terms “actual possession” and “constructive possession,” as set forth in State v. Shaw, 37
S.W.3d 900, 903 (Tenn. 2001). The Defendant asked that the instruction also include the
following language: “One’s mere presence in an area where an object is discovered, or one’s
mere association with a person who is in possession of an object, is not alone sufficient to
support a finding of constructive possession.” (Emphasis omitted) (quoting Shaw, 37 S.W.3d
at 903). The State objected, arguing that the Defendant was charged with the employment
of a firearm rather than possession of a firearm. The trial court concluded that an instruction
on possession was not warranted.

       In addition, over the objection of the Defendant, the trial judge included the following
instruction on criminal responsibility:

               The defendant is criminally responsible as a party to the offense of . . .
       employment of a firearm during the commission of aggravated burglary or in
       attempt thereof, if the offense was committed by the defendant’s own conduct,
       or by the conduct of another for which the defendant is criminally responsible,
       or by both. Each party to an offense may be charged with the commission of
       that offense.




                                              -4-
              The defendant is criminally responsible for an offense committed by the
       conduct of another if, acting with the intent to promote or assist the
       commission of that offense, or to benefit in the proceeds or results of the
       offense, the defendant aids, directs, solicits, or attempts to aid another person
       to commit that offense.

              Before you find the defendant guilty of being criminally responsible for
       said offense committed by the conduct of another, you must find [that] all
       essential elements of the offense have been proven by the State beyond a
       reasonable doubt.

       During deliberations, the jury returned to the courtroom to ask two questions
regarding the charge of employment of a firearm. First, the jury asked, “Does employ mean
the [D]efendant was holding the gun?” The trial court responded by repeating the following
portion of the pattern instruction for the employment of a firearm offense:

       (1) That the defendant employed a firearm. The definition of employ means
       to make use of.

       (2) That the employment was during the commission of or attempt to commit
       aggravated burglary; and

       (3) That the defendant acted either intentionally, knowingly, or recklessly.

Second, the jury asked, “Can [the Defendant] be guilty by association?” In response, the trial
court restated the jury instruction for criminal responsibility.

        Ultimately, the jury returned a verdict of guilt for both charges. The trial court
imposed consecutive sentences of three years for the aggravated burglary and six years for
the employment of a firearm, for an effective nine-year sentence. The Court of Criminal
Appeals affirmed the Defendant’s convictions, rejecting the Defendant’s claims that the trial
court erred by (1) refusing to instruct the jury on the definition of possession and constructive
possession; (2) failing to instruct the jury on possession of a firearm during the commission
of a dangerous felony as a lesser included offense of employment of a firearm; (3) allowing
Lewis to testify as to a legal opinion regarding the charges against him; (4) providing an
instruction on criminal responsibility; and (5) failing to declare a mistrial when the State
identified defense counsel as a member of the Public Defender’s Office.3 The Court of


       3
           During jury selection for the Defendant’s trial, the assistant district attorney general introduced
                                                                                                 (continued...)

                                                      -5-
Criminal Appeals also rejected the Defendant’s argument that the evidence was insufficient
to support the conviction for employment of a firearm during the commission of a dangerous
felony.

       This Court granted the Defendant’s application for permission to appeal to consider
(1) whether the trial court should have instructed the jury on possession of a firearm during
the commission of a dangerous felony as a lesser included offense of employment of a
firearm during the commission of a dangerous felony; and (2) whether the trial court erred
by refusing to instruct the jury on the definition of possession, actual or constructive, for the
employment of a firearm charge. In our view, the Court of Criminal Appeals satisfactorily
addressed and rejected the Defendant’s claims as to the remaining issues. See State v. Fayne,
No. W2012-01488-CCA-R3-CD, 2013 WL 8844096, at *4-10 (Tenn. Crim. App. July 2,
2013).

                                         II. Analysis
                    A. Right to Instruction on Possession of a Firearm
       The Defendant first argues that the trial court erred by failing to instruct the jury on
possession of a firearm during the commission of a dangerous felony as a lesser included
offense of employment of a firearm during the commission of a dangerous felony. The State
contends that the Defendant waived this issue by failing to submit to the trial court a written
request to instruct the jury on the possession of a firearm as a lesser included offense.

        We must address the following questions in reviewing the Defendant’s claim:
(1) whether possession of a firearm during the commission of a dangerous felony is a lesser
included offense of employment of a firearm during the commission of a dangerous felony;
(2) whether the Defendant has waived his right to raise the issue as an error on appeal; and
(3) if the issue has been waived, whether the trial court’s failure to instruct on the lesser
included offense amounts to plain error.4 See State v. Page, 184 S.W.3d 223, 227-31 (Tenn.
2006) (conducting plain error review of the trial court’s omission of an instruction on


        3
          (...continued)
defense counsel as an attorney “with the public defender’s office.” Defense counsel moved for a mistrial,
claiming that being identified as represented by a public defender prejudiced the Defendant’s right to a fair
trial. Specifically, defense counsel contended that the comment was “inherently prejudicial” because it made
the jury aware that “the [D]efendant [could not] hire counsel[] and [was] in jail.” The trial court directed
the State to avoid references to the public defender’s office but denied the motion for a mistrial.
        4
         If a trial court does not instruct on a lesser included offense and the issue is not waived, the
reviewing court must additionally determine whether the evidence supported an instruction on the lesser
included offense and, if so, whether the omission of the instruction is harmless error. State v. Banks, 271
S.W.3d 90, 124 (Tenn. 2008).

                                                    -6-
facilitation of second degree murder when the defendant had waived the issue). “Whether
a particular instruction regarding a lesser-included offense should have been given is a mixed
question of law and fact,” which we review de novo with no presumption of correctness.
Banks, 271 S.W.3d at 124.

               1. Possession as a Lesser Included Offense of Employment
        In 2009, the General Assembly amended Tennessee Code Annotated section
40-18-110 to include a statutory definition of the term “lesser included offense.” See Act of
June 9, 2009, ch. 439, § 1, 2009-2 Tenn. Code Ann. Adv. Legis. Serv. 506, 506 (LexisNexis)
(codified at Tenn. Code Ann. § 40-18-110(f) (2012)).5 Section 40-18-110(f)(1)–(4) provides
as follows:


        5
          Ten years earlier, in State v. Burns, 6 S.W.3d 453, 466 (Tenn. 1999), this Court adopted a
framework similar to the Model Penal Code for defining lesser included offenses, finding that the approach
“[was] logical and consistent with the structure of our own criminal code.” Under the Burns test, a crime
qualified as a lesser included offense if it satisfied any one of the following three categories:

        (a) all of its statutory elements are included within the statutory elements of the offense
        charged; or

        (b) it fails to meet the definition in part (a) only in the respect that it contains a statutory
        element or elements establishing

                 (1) a different mental state indicating a lesser kind of culpability; and/or

                 (2) a less serious harm or risk of harm to the same person, property or public
                 interest; or

        (c) it consists of

                 (1) facilitation of the offense charged or of an offense that otherwise meets the
                 definition of lesser-included offense in part (a) or (b); or

                 (2) an attempt to commit the offense charged or an offense that otherwise meets the
                 definition of lesser-included offense in part (a) or (b); or

                 (3) solicitation to commit the offense charged or an offense that otherwise meets the
                 definition of lesser-included offense in part (a) or (b).

Id. at 466-67. The 2009 amendment codified parts (a) and (c) of the Burns test. Section 40-18-110(f)(1)
corresponds to part (a) of the Burns test, and section 40-18-110(f)(2)–(4) corresponds to part (c) of the Burns
test. Significantly, the statutory definition set out in section 40-18-110(f) does not include part (b) of the
Burns test. Because the resolution of this appeal involves only section 40-18-110(f)(1), which is identical
to part (a) of the Burns test, we need not address whether part (b) of the Burns test has been superseded by
statute.

                                                      -7-
       An offense is a lesser included offense if:

              (1) All of its statutory elements are included within the statutory
              elements of the offense charged;

              (2) The offense is facilitation of the offense charged or of an offense
              that otherwise meets the definition of lesser included offense in
              subdivision (f)(1);

              (3) The offense is an attempt to commit the offense charged or an
              offense that otherwise meets the definition of lesser included offense
              in subdivision (f)(1); or

              (4) The offense is solicitation to commit the offense charged or an
              offense that otherwise meets the definition of lesser included offense
              in subdivision (f)(1).

       Consistent with the “statutory elements” approach previously set forth by this Court
in Howard v. State, 578 S.W.2d 83, 85 (Tenn. 1979), a lesser included offense exists
pursuant to section 40-18-110(f)(1) “‘if the elements of the greater offense . . . include, but
are not congruent with, all the elements of the lesser.’” Burns, 6 S.W.3d at 464 (quoting
Howard, 578 S.W.2d at 85); see also id. at 467 (“Part (a) of this test defines lesser-included
offense using a statutory elements approach consistent with Howard.”). Therefore, under
section 40-18-110(f)(1), the key question is whether “the elements of the lesser offense [are]
a subset of the elements of the charged offense.” State v. Ely, 48 S.W.3d 710, 718 (Tenn.
2001). Accordingly, in order to determine whether possession of a firearm during the
commission of a dangerous felony, as set forth in Tennessee Code Annotated section
39-17-1324(a) (2014), qualifies as a lesser included offense of employment of a firearm
during the commission of a dangerous felony, as set forth in section 39-17-1324(b)(1)–(4),
we must assess whether the elements of the possession offense fall completely within the
elements of the employment offense.

        To be guilty of the possession offense, a defendant must “possess a firearm with the
intent to go armed during the commission of or attempt to commit a dangerous felony.” Id.
§ 39-17-1324(a). When parsed, the 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.” The term “dangerous felony” encompasses several enumerated
crimes, including aggravated burglary. Id. § 39-17-1324(i)(1)(H).


                                              -8-
       Under section 39-17-1324(b)(1)–(4), employment of a firearm occurs when a
defendant “employ[s] a firearm” during the commission or attempted commission of a
dangerous felony, or during the “[f]light or escape” from the commission or attempted
commission of a dangerous felony. Because this definition does not include a mens rea
element, Tennessee Code Annotated section 39-11-301(c) (2014) provides that “intent,
knowledge[,] or recklessness suffices to establish the culpable mental state.” Like
possession, then, employment contains three elements: (1) that the defendant employed a
firearm; (2) that the employment was during the commission or attempted commission of a
dangerous felony, or during the flight or escape from the commission or attempted
commission of a dangerous felony; and (3) that the defendant acted intentionally, knowingly,
or recklessly.

        The three elements of the employment offense encompass all three elements of the
possession offense. First, the temporal element of the employment offense subsumes that of
the possession offense because, as to both offenses, the relevant conduct may occur during
the commission of or attempt to commit a dangerous felony. See id. § 39-17-1324(a),
(b)(1)–(2). Second, the mens rea element of section 39-17-1324(a)—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 section 39-17-1324(b) via section 39-11-301(c): intent, knowledge, or
recklessness. Intentional employment of a firearm necessarily encompasses the “intent to go
armed.” Third, the element of “employment” in section 39-17-1324(b) inherently
encompasses the requirement of “possession” in section 39-17-1324(a). Because the statute
does not provide a definition for “employ,” we must apply “the natural and ordinary meaning
of the words in the statute to give effect to the legislative intent.” State v. Pickett, 211
S.W.3d 696, 705 (Tenn. 2007). The natural and ordinary meaning of the verb “employ” is
“to make use of.” Black’s Law Dictionary 602 (9th ed. 2009); Webster’s Third New
International Dictionary 743 (1993); 7 Tenn. Prac. Pattern Jury Instr. T.P.I.-Crim. 36.06(c).
“Possession,” on the other hand, has a long history as a term of art. In criminal cases, a
possession element may generally be established by showing actual or constructive
possession. See State v. Robinson, 400 S.W.3d 529, 534 (Tenn. 2013). While actual
possession refers to physical control over an item, constructive possession requires only that
a defendant have “‘the power and intention . . . to exercise dominion and control over’” the
item allegedly possessed. Id. (quoting Shaw, 37 S.W.3d at 903). Making use of a
firearm—i.e., employment—requires, at a minimum, that one have the power to exercise
control over the firearm—i.e., constructive possession. Accordingly, the employment
element of section 39-17-1324(b) necessarily encompasses the possession element of section
39-17-1324(a). Because all of the elements of possession of a firearm under section
39-17-1324(a) fall within the elements of employment of a firearm under
section 39-17-1324(b), the former qualifies as a lesser included offense of the latter under
section 40-18-110(f)(1).


                                             -9-
        Additional considerations further support our conclusion that possession of a firearm
is a lesser included offense of employment of a firearm. The two offenses are set out in
subsections of the same statute, Tenn. Code Ann. § 39-17-1324(a)–(b), and the possession
offense carries a criminal penalty one step lower than the employment offense. Compare id.
§ 39-17-1324(g)(1) (providing that possession of a firearm under 39-17-1324(a) is a Class
D felony with a mandatory minimum three-year sentence), with id. § 39-17-1324(h)(1)
(providing that employment of a firearm under section 39-17-1324(b) is a Class C felony
with a mandatory minimum six-year sentence). Finally, both offenses can occur only during
the same underlying crimes. See id. § 39-17-1324(i)(1) (enumerating the offenses that
qualify as “dangerous felonies”). While these considerations are not dispositive, they bolster
our conclusion that possession of a firearm under section 39-17-1324(a) is a lesser included
offense of employment of a firearm under section 39-17-1324(b).

                    2. Waiver of Lesser Included Offense Instruction
       Although we have determined that possession of a firearm during the commission of
a dangerous felony is a lesser included offense of employment of a firearm during the
commission of a dangerous felony, that does not necessarily entitle the Defendant to relief.
The State contends that the Defendant waived his right to an instruction on any lesser
included offenses, including possession of a firearm during the commission of a dangerous
felony, because he failed to specifically request an instruction at trial as to any lesser included
offenses. We agree.

        Tennessee Code Annotated section 40-18-110(c) provides that “[a]bsent a written
request, the failure of a trial judge to instruct the jury on any lesser included offense may not
be presented as a ground for relief either in a motion for a new trial or on appeal.” (Emphasis
added); see also State v. Vasques, 221 S.W.3d 514, 523-24 (Tenn. 2007). The statute further
provides that the lesser included offense must be “specifically identified in the request.”
Tenn. Code Ann. § 40-18-110(a); see also id. § 40-18-110(b). In consequence, “if a
defendant fails to request an instruction on a lesser-included offense in writing at trial, the
issue will be waived for purposes of plenary appellate review and cannot be cited as error in
a motion for a new trial or on appeal.” Page, 184 S.W.3d at 229. The prior version of
section 40-18-110(a) placed an affirmative duty on trial courts to instruct on all lesser
included offenses supported by the evidence, whether requested by the defendant or not. See
id. at 228-29 (quoting Tenn. Code Ann. § 40-18-110(a) (1979)). In contrast, the version of
the statute currently in effect places on the defendant the burden of requesting an instruction
on any lesser included offense. See Tenn. Code Ann. § 40-18-110(a)–(c); see also Page, 184
S.W.3d at 229 (“[A] trial court’s incomplete jury charge may be cited as error on appeal only
if the defendant requested a lesser-included offense charge at trial.” (emphasis added)); State
v. Fusco, 404 S.W.3d 504, 515-16 (Tenn. Crim. App. 2012) (finding waiver of a lesser



                                               -10-
included offense issue “because the [d]efendant failed to file a written request”), perm. app.
denied (Tenn. Apr. 11, 2013).

         Here, the Defendant failed to make a written request for a specific instruction on any
lesser included offenses as required by Tennessee Code Annotated section 40-18-110(a)–(c).
Although the defense requested that the trial court provide an instruction on the definition
of the term “possession,” that request was aimed at defining possession as an element of
employment and failed to identify possession of a firearm during the commission of a
dangerous felony as a lesser included offense. See Tenn. Code Ann. § 40-18-110(b)
(providing that a request must “specifically identify[] the particular lesser included offense
. . . on which a jury instruction is sought”). Moreover, the trial court specifically asked the
parties to provide any known lesser included offenses of employment of a firearm during the
commission of a dangerous felony, and the defense failed to offer any. The Defendant has
not, therefore, properly preserved the issue of whether the trial court erred by failing to
instruct possession of a firearm as a lesser included offense.

                                       3. Plain Error
        The waiver of a lesser included offense instruction does not, however, preclude our
consideration of the issue under the doctrine of plain error. Page, 184 S.W.3d at 230; see
also Vasques, 221 S.W.3d at 524. Under plain error review, we will grant relief only when
all of the following criteria are met:

       (a) the record must clearly establish what occurred in the trial court; (b) a clear
       and unequivocal rule of law must have been breached; (c) a substantial right
       of the accused must have been adversely affected; (d) the accused did not
       waive the issue for tactical reasons; and (e) consideration of the error is
       “necessary to do substantial justice.”

Grindstaff v. State, 297 S.W.3d 208, 219 n.12 (Tenn. 2009) (quoting State v. Smith, 24
S.W.3d 274, 282 (Tenn. 2000)); see also Tenn. R. App. P. 36(b). Because each factor must
be established, we need not consider all five factors when a single factor indicates that relief
is not warranted. State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007) (citing Smith, 24
S.W.3d at 283). “[A]n error would have to [be] especially egregious in nature, striking at the
very heart of the fairness of the judicial proceeding, to rise to the level of plain error.” Page,
184 S.W.3d at 231.

      Here, the record fails to establish the breach of a clear and unequivocal rule of law.
While a defendant is entitled to a correct and complete charge of the law, id. at 229, this
Court has previously held that the omission of an instruction on a lesser included offense
does not result in the breach of a clear and unequivocal rule of law when the status of the


                                              -11-
crime as a lesser included offense is not apparent based on prior law, see State v. Terry, 118
S.W.3d 355, 360 (Tenn. 2003) (holding that the trial court did not commit plain error when
it was not previously clear “whether attempted aggravated criminal trespass was a
lesser-included offense of attempted aggravated burglary”).6 In this instance, possession of
a firearm during the commission of a dangerous felony has not previously been recognized
as a lesser included offense of employment of a firearm during the commission of a
dangerous felony. Moreover, while our application of Tennessee Code Annotated section
40-18-110(f)(1) establishes that possession of a firearm qualifies as a lesser included offense,
that conclusion was not so readily apparent based on prior case law as to give rise to a clear
and unequivocal rule of law. As a result, the omission of an instruction on possession of a
firearm did not amount to the breach of a clear and unequivocal rule of law and does not
support a finding of plain error.

                           B. Adequacy of the Jury Instructions
        The final issue we address is whether the trial court erred by refusing to instruct the
jury on the definition of the term “possession” as an element of employment of a firearm
during the commission of a dangerous felony. The trial court instructed the jury using the
pattern jury instructions for employment of a firearm during the commission or attempted
commission of a dangerous felony. 7 Tenn. Prac. Pattern Jury Instr. T.P.I.-Crim. 36.06(c).
The Defendant contends that the trial court should have supplemented its instructions with
a definition of actual and constructive possession. While we agree that it is not possible to
employ a firearm without concomitantly possessing it, we hold that the trial court did not err
by denying the special instruction because the instruction, as provided, fully and fairly set
forth the applicable law.

        The United States Constitution and Tennessee Constitution guarantee a right to trial
by jury. U.S. Const. amend. VI; Tenn. Const. art. I, § 6 (providing “[t]hat the right of trial
by jury shall remain inviolate”). This right encompasses an entitlement to “a complete and
correct charge of the law, so that each issue of fact raised by the evidence will be submitted
to the jury on proper instructions.” State v. Dorantes, 331 S.W.3d 370, 390 (Tenn. 2011).
In consequence, the trial court has the duty to give a comprehensive instruction of the law
as applicable to the facts in each case, State v. Thompson, 519 S.W.2d 789, 792 (Tenn.
1975), including a definition of the elements of each offense, see State v. Ducker, 27 S.W.3d


        6
           In Terry, this Court focused on whether the lesser included offense had been recognized as such
“at the time of trial.” Id. at 360. Later, the United States Supreme Court, construing the federal plain error
rule, Fed. R. Crim. P. 52(b), held that plain error may be established when a trial court rules on an unsettled
question of law and an intervening decision by a different court settles the question prior to appeal.
Henderson v. United States, 133 S. Ct. 1121, 1129-30 (2013). In this instance, the parties have not briefed
or relied upon Henderson. Accordingly, we leave for a future case the question of whether the ruling in
Henderson applies under Tennessee law.

                                                    -12-
889, 899 (Tenn. 2000); State v. Cravens, 764 S.W.2d 754, 756 (Tenn. 1989). When the
general charge fully and fairly sets forth the applicable law, a special instruction is
unnecessary. See State v. Hanson, 279 S.W.3d 265, 280 (Tenn. 2009) (emphasizing the
importance of assessing the adequacy of the instructions as a whole rather than in isolation).
Instead, “[t]he purpose of a special instruction is ‘to supply an omission or correct a mistake
made in the general charge, to present a material question not treated in the general charge,
or to limit, extend, eliminate, or more accurately define a proposition already submitted to
the jury.’” State v. Adams, 405 S.W.3d 641, 661 (Tenn. 2013) (quoting State v. Cozart, 54
S.W.3d 242, 245 (Tenn. 2001), overruled on other grounds by State v. White, 362 S.W.3d
559 (Tenn. 2012)). As a result, the refusal to provide special instructions will be deemed
error only if the charged instruction “fails to fairly submit the legal issues or if it misleads the
jury as to the applicable law.” See State v. Vann, 976 S.W.2d 93, 101 (Tenn. 1998) (citing
State v. Forbes, 918 S.W.2d 431, 447 (Tenn. Crim. App. 1995); Graham v. State, 547 S.W.2d
531 (Tenn. 1977)); see also Shell v. State, 584 S.W.2d 231, 235 (Tenn. Crim. App. 1979)
(declining to find error when the charged instruction provided a correct statement of
Tennessee law albeit in less precise terms than the requested instruction). The propriety of
a jury instruction is a mixed question of law and fact, reviewed de novo with no presumption
of correctness. State v. Rush, 50 S.W.3d 424, 427 (Tenn. 2001); State v. Smiley, 38 S.W.3d
521, 524 (Tenn. 2001).

       In this instance, the second count of the indictment charged the Defendant with
“unlawfully employ[ing] a firearm during the commission of or the attempt to commit a
dangerous felony, to wit: aggravated burglary, in violation of [Tennessee Code Annotated
section] 39-17-1324[(b)].” At the close of proof, the trial court instructed the jury in
pertinent part as follows:

             Any person who employs a firearm during the commission [of] or
       attempt to commit aggravated burglary is guilty of a crime. For you to find the
       defendant guilty of this offense, the State must have proven beyond a
       reasonable doubt the existence of the following essential elements:

               1. That the defendant employed a firearm; and

               2. That the employment was during the commission of or attempt to
               commit aggravated burglary; and

               3. That the defendant acted either intentionally, knowingly, or
               recklessly.

               You’ve already been charged with the elements of the offense of


                                               -13-
       aggravated burglary and attempt.

              Employ means to make use of.

              Firearm means any weapon designed, made, or adapted to expel a
       projectile by the action of an explosive or any device readily convertible to that
       use.

              Aggravated burglary is a dangerous felony.

              I’ve already given you the definitions of intentionally, knowingly, and
       recklessly.

(Emphasis added.)

       The language of the pattern jury instruction tracks the statutory language of the
offense, including all essential elements. Further, the instruction sets forth the applicable
statutory definitions of these elements. Because our criminal code does not define
“employment,” the pattern instruction defined the term “employ” to mean “to make use of,”
based on the definition provided in Black’s Law Dictionary. 7 Tenn. Prac. Pattern Jury Instr.
T.P.I.-Crim. 36.06(c) & n.5. The Defendant, however, submits that this definition was
insufficient because employment of a firearm necessarily involves possession of a firearm,
which should be defined to include actual and constructive possession. See Robinson, 400
S.W.3d at 534 (noting that possession can be actual or constructive, the latter of which
requires that a defendant have “‘the power and intention . . . to exercise dominion and control
over’” the item allegedly possessed (quoting Shaw, 37 S.W.3d at 903)).

        As indicated, we agree with the Defendant that employment of a firearm necessarily
encompasses possession of a firearm, either in the actual or constructive sense. Nevertheless,
the Defendant has failed to establish that the definition of employment provided—“to make
use of”—misled the jury as to the applicable law. Because the phrase “to make use of” is of
common parlance and is understood by persons of reasonable intelligence, the court was not
required to give a special instruction delineating its meaning. See State v. Black, 745 S.W.2d
302, 306 (Tenn. Crim. App. 1987) (“Where words and terms are in common use and are such
as can be understood by persons of ordinary intelligence, it is not necessary in the absence
of anything in the charge to obscure their meaning, for the court to define or explain them.”).
Although the jury asked the trial court questions regarding the definition of “employment”
and the possibility of “guilt[] by association,” it is our view that the instruction given by the
trial court defining “employment,” combined with the instruction on criminal responsibility,
fairly submitted the legal issues to the jury. See Vann, 976 S.W.2d at 101. As a result, the


                                              -14-
Defendant has failed to establish that the trial court erred by failing to give a special
instruction defining “possession.”

                                          III. Conclusion
        Possession of a firearm during the commission of a dangerous felony qualifies as a
lesser included offense of employment of a firearm during the commission of a dangerous
felony. Nevertheless, the Defendant has waived the issue, and, under these circumstances,
is not entitled to relief under the plain error doctrine. Moreover, the trial court did not err by
failing to give the special instruction on possession as requested by the Defendant. As to all
other issues presented by the Defendant that are not specifically addressed in this opinion,
we uphold the ruling of the Court of Criminal Appeals. The judgment of the Court of
Criminal Appeals is, therefore, affirmed. It appearing that the Defendant is indigent, costs
of this appeal are taxed to the State of Tennessee.


                                                            ____________________________
                                                            GARY R. WADE, JUSTICE




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