The opinion
05/20/2025
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs March 18, 2025 at Knoxville
STATE OF TENNESSEE v. JEREMIAH DEVON COHILL
Appeal from the Circuit Court for Rutherford County
No. 84817B Barry R. Tidwell, Judge
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No. M2023-01771-CCA-R3-CD
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Defendant, Jeremiah Devon Cohill, was convicted by a jury of carjacking (count one),
employing a firearm during the commission of a dangerous felony (count two), aggravated
assault (count three), and conspiracy to commit carjacking (count four). The trial court
imposed an effective sentence of twenty-four years as a Range I offender to be served in
confinement. On appeal, Defendant argues that (1) the trial court committed plain error in
its jury instruction for employment of a firearm during the commission of a dangerous
felony; (2) the evidence was insufficient to support his convictions; (3) his sentence is
excessive; and (4) the judgment for count one contains a clerical error. Following our
review of the entire record, the parties’ briefs and the applicable law, we reverse, vacate
and dismiss Defendant’s conviction for employing a firearm during the commission of a
dangerous felony (count two). In all other aspects, we affirm the judgments of the trial
court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed in
Part and Reversed in Part
JILL BARTEE AYERS, J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.
Brad Stephens (on appeal), and Chase Fann (at trial), Murfreesboro, Tennessee, and Scott
Saul (at trial), Nashville, Tennessee, for the appellant, Jeremiah Devon Cohill.
Jonathan Skrmetti, Attorney General and Reporter; Elizabeth Evan, Assistant Attorney
General; Jennings H. Jones, District Attorney General; and John Zimmerman, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
Factual and Procedural Background
This case arose from an incident in which Defendant and his Co-defendant, Ja’Veon
Brown,1 met the victims, Victoria Claxton and her father, Shawn Frick, under the guise of
buying Ms. Claxton’s car and then stole the car after threatening the victims at gunpoint.
The Rutherford County Grand Jury indicted Defendant for carjacking (count one),
employing a weapon during a dangerous felony (count two), aggravated assault (count
three), and conspiracy to commit carjacking (count four).
The following evidence was presented at trial: On July 29, 2020, Defendant and Co-
defendant Brown, using the name “Jay Murda,” contacted Ms. Claxton about purchasing a
car that she had listed for sale on Facebook Marketplace.2 The following day, July 30,
2020, Ms. Claxton agreed to meet the men at a Dollar General parking lot in Murfreesboro.
Mr. Frick followed her in his vehicle with his nine-year-old son, Ms. Claxton’s younger
brother. After they arrived at the Dollar General, Ms. Claxton received a message asking
if she could instead meet Defendant and Co-defendant Brown at a house on Gold Valley
Drive near the Dollar General.
Ms. Claxton and Mr. Frick drove to the residence; she pulled her car into the
driveway, and Mr. Frick parked on the street. Defendant and Co-defendant Brown were
standing in the garage, which was empty. Mr. Frick noted at trial that it did not appear that
anyone lived in the house. Ms. Claxton went into the garage with the car title and began
talking to Defendant while Co-defendant Brown went with Mr. Frick to look at Ms.
Claxton’s car. Defendant and Co-defendant Brown then asked to take the car for a “test
drive.” Mr. Frick agreed and rode with them. Defendant drove the car, and Co-defendant
Brown, who had a backpack with him, rode in the back seat. Ms. Claxton remained at the
house with her brother.
After the test drive, Defendant parked the car in front of the house and indicated that
he wanted to buy the vehicle. Mr. Frick remained in the car and asked Ms. Claxton to bring
him the “paperwork.” Mr. Frick began explaining the title to Defendant and asked him to
sign it. He said that Defendant initially would not sign it; “[h]e started to sign and then
stopped and then started.” Mr. Frick then suggested that they get out of the car and move
to the trunk for Defendant to have a flat surface on which to sign the title. After Defendant
finally signed the title, they completed a bill of sale, and Ms. Claxton took pictures of both
the title and the bill of sale. When Mr. Frick requested the agreed-upon payment of $4,000
for the vehicle, Co-defendant Brown reached into the backpack, pulled out a gun, pointed
1
Co-defendant Brown pled guilty prior to Defendant’s trial.
2
Although Ms. Claxton drove the vehicle, Mr. Frick was listed as the owner on the title.
-2-
it at Mr. Frick, and said he “wanted” the keys to the car. Mr. Frick agreed that he was
“afraid of challenging the gun” and did not want to “test it.” Ms. Claxton “threw” the keys
to Co-defendant Brown who then said that he wanted “all of the keys.” Ms. Claxton told
him that was all of them, and Defendant and Co-defendant Brown got into the car and
drove away with Defendant driving and Co-defendant Brown in the back seat.
Mr. Frick testified that Co-defendant Brown never pointed the gun at Defendant,
and Defendant did not react or seem fearful when Co-defendant Brown pulled the gun out
of the backpack. Mr. Frick and Ms. Claxton got back into Mr. Frick’s vehicle, and Ms.
Claxton called 911. Officer Cameron Stamps3 of the Murfreesboro Police Department
(“MPD”) arrived on the scene at approximately 5:00 p.m. Ms. Claxton told her that she
had listed her vehicle for sale on Facebook Marketplace and that someone named “Jay
Murda” responded that he would like to look at the car and buy it. She and Mr. Frick then
told Officer Stamps what happened, and that Defendant and Co-defendant Brown had
stolen the car at gunpoint. Officer Stamps issued a “[b]e on the lookout” (“BOLO”) with
Defendant’s name, which had been signed to the back of the car title, and a description of
the two men, what they were wearing, and their direction of travel.
Ms. Claxton’s vehicle was located within minutes by MPD Officer Pam Goslee at
an apartment complex on Journey Drive “maybe less than a mile” from the house on Gold
Valley Drive. Officer Goslee saw a man exit the car, run to the apartment complex, and
disappear into the breezeway. She notified other officers in the area to look for the
individual.
MPD Officer Joshua Martin drove to the residence on Gold Valley drive, spoke with
the victims, and then proceeded down the road to look for the suspects. He was flagged
down by two individuals who said they saw two men run from the back of the Grove
Apartment Complex across Woods Edge Drive and into a “field, vacant lot area.” Officer
Martin drove to the vacant lot and exited his patrol car. He saw two individuals in a thicket,
and Co-defendant Brown ran out in front of him. Officer Martin drew his weapon and took
Co-defendant Brown into custody. Co-defendant Brown immediately told Officer Martin
that the key to Ms. Claxton’s car was in his right pocket. Officer Martin also took Co-
defendant Brown’s cell phone. Defendant ran in the direction of Halls Hill Pike and into a
wooded area behind some houses. Officer Martin gave the key and cell phone to MPD
Detective Christopher Pate.
MPD Field Training Officer (“FTO”) Cary Ridiner responded to the area where Co-
defendant Brown had been taken into custody and searched for Defendant. He responded
to a residence on Halls Hill Pike and saw Defendant who was shirtless with several
abrasions and scratches. Officer Ridiner took Defendant into custody and advised him of
3
At the time of trial, Officer Stamps was no longer employed by the police department.
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his Miranda rights. He also seized Defendant’s cell phone and later gave it to Detective
Pate.
Ms. Claxton and Mr. Frick traveled to the police department and gave statements.
They were shown a photographic lineup, and Mr. Frick identified Co-defendant Brown.
Mr. Frick was shown a second photographic lineup but did not identify anyone. Ms.
Claxton was able to identify both Defendant and Co-defendant Brown from the
photographic lineups.
Detective Pate4 interviewed Defendant, who claimed that his mother gave him
$4,000 to buy Ms. Claxton’s car. However, there was no evidence that the money existed,
and Defendant was never clear on whether his mother provided him with cash or a check
for the vehicle. Defendant told Detective Pate that he messaged Ms. Claxton about buying
the car and that he intended to purchase it. Detective Pate said Defendant claimed that
during the test drive, Co-defendant Brown “kept bumping his seat, like, kinda of like trying
to signal him or something, but he didn’t know what [Co-defendant] Brown wanted.”
Defendant said that they came back to the house, and he was going to sign the car title
when Co-defendant Brown produced the gun and “basically held him and them at gunpoint
and demanded the keys, made him get in the car, and they fled, or made him drive off from
the scene.” Defendant also told Detective Pate that he had only known Co-defendant
Brown twelve hours or less, and they met playing basketball. Detective Pate testified that
Co-defendant Brown would not tell him where the gun was located because it did not
belong to him, and “it wasn’t his to tell.” Defendant indicated that the gun had been left in
an apartment, but he would not reveal which apartment number.
Detective Pate then interviewed Co-defendant Brown, who initially said that the
carjacking was not his idea and that it had been set up by a friend, whom he later agreed
was Defendant. Co-defendant Brown claimed that he did not know anything about the
carjacking when the victims arrived at the house and that Defendant pulled out the gun.
Eventually, Co-defendant Brown said that Defendant arranged the meeting, and Co-
defendant Brown produced the weapon. He indicated that he was the “muscle” behind the
carjacking, and Defendant was the “brains.” At trial, Detective Pate noted that the only
consistency between Defendant’s and Co-defendant Brown’s statements was that
Defendant set it up.
Detective Pate testified that he began receiving letters from Co-defendant Brown
after both defendants were incarcerated. In the letters, and in a statement to Detective
Whitaker, Co-defendant Brown claimed that Defendant had the money to purchase the car
“but [Co-defendant Brown] pulled the gun out anyway.”
4
Detective Pate is now Sergeant Pate.
-4-
Co-defendant Brown testified that he entered a guilty plea in this case and identified
his sworn affidavit in support of the plea concerning the offenses. He agreed that Detective
Pate and the prosecutor showed him a video in which he and Defendant were shooting a
gun in Ripley, Tennessee. There was also a video of Defendant in the driver’s seat of a car
in possession of the gun used in the present offenses. Co-defendant Brown was in the back
seat. In his affidavit, Co-defendant Brown made the following statement:
After a while, I was invited to spend some time with [Defendant] at his home
in Ripley. While there, [Defendant] showed me a large semi-automatic
handgun with extended magazine that belonged to him. This was the same
gun, later used in the carjacking in this case. We took videos on my phone
of both me and [Defendant], shooting the large gun. This was at a vacant
elementary school in Ripley. I was shown those videos during the January
30, meeting referred to above. And in the two videos, I was shown,
[Defendant] is wearing the white T-shirt, and I’m wearing the black shirt.
Co-defendant Brown also said that the day before the carjacking, Defendant wanted
a car and “said he knew how to get one” although Defendant did not have money or a job.
In the affidavit, Co-defendant Brown stated that in the second video, he was holding a
“handgun that I bought off the streets in Memphis.”
Co-Defendant Brown also stated in his affidavit that he came to Murfreesboro in
June 2020 “to hang out” with Defendant, and Co-defendant Brown brought his handgun
with him. They stayed in an apartment at The Grove Apartment Complex where they were
found after the offenses. Co-defendant Brown stated that Defendant “kept his gun, the one
used in the carjacking” at this apartment. They took photos with the weapon, and Co-
defendant Brown used it for his “phone screen.” Co-defendant Brown further declared:
While here in Murfreesboro, [Defendant] set up some robberies. I would
take the property and turn it over to [Defendant]. He would get rid of the
property. I would describe our partnership as two brothers and that I was the
muscle and [Defendant] was the one who set up each robbery, using his
Facebook account. I used the word “mastermind” in describing
[Defendant’s] role in the robberies when I was first interviewed by Detective
Pate, following my arrest in the carjacking. He planned them, I did the
robbery and gave him the property.
I had no Facebook account, and [Defendant] used his account to set up the
robbery - - set up each robbery.
Co-defendant Brown further stated:
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The day we were arrested, he had told me to come with him that he was
getting a car. [Defendant] and I walked to Gold Valley Road where we found
a house for rent. We took down the sign and acted like we lived there. The
girl drove up in the car and we took it for a test drive. The girl handed the
title to [Defendant] and he signed it. She took a picture of it and when she
asked for the money, I pulled out [Defendant’s] gun from the backpack.
[Defendant] knew I took his gun -- I was to be the muscle. [Defendant]
demanded the keys as I held the gun on the girl. We got into the car with
[Defendant] driving. I took [Defendant’s] gun and put it back in the
backpack along with the title. After my arrest, I never saw [Defendant’s]
backpack, or his gun or the title.
I looked out the window to the parking lot where [Defendant] had parked the
stolen car and saw that it was parked away from any other cars and was easy
to spot. So, I got my handgun and went out to move the car between some
other cars to try to hide it better. After I moved the car, I saw the police
officer driving in and realized that I had been spotted. I took off running
towards the breezeway near [Defendant’s apartment]. [Defendant] also saw
what was happening from the apartment and he came out and we were both
running away.
We both ran near the gate in the rear of the apartments. While running I
threw my handgun towards the backyard of one of the houses near the back
gate. I showed Det[ective] Pate during the meeting mentioned above on an
aerial map where I threw my handgun. I had my phone with me when
arrested.
In the final paragraph of the affidavit, Co-defendant Brown acknowledged that he
originally told detectives in his prior statements that Defendant had nothing to do with the
offenses and that he would “take” the charges and clear Defendant. However, he decided
to no longer lie for Defendant when Co-defendant Brown’s attorney informed him that
Defendant claimed that Co-defendant Brown threatened him and held a gun to him.
At trial, Co-defendant Brown said that the information contained in his affidavit was
not true and that he lied to the trial court concerning his guilty plea. He further admitted
that he pled guilty to two additional robberies along with the offenses in this case and
received an effective twelve-year sentence for all three cases.
On cross-examination, Co-defendant Brown testified that he committed the
carjacking in this case and that Defendant did not know that there would be a carjacking.
He was aware that his plea agreement contained a paragraph indicating that his agreement
was “null and void” if he testified or communicated to anyone that any of his statements in
the affidavit were not true or that he was coerced to sign the affidavit. The agreement
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further stated that “the State may set aside this agreement, set aside my guilty pleas, and
prosecute these charges as if there was no plea bargain.” Defendant reiterated that his
original statements indicating that Defendant had nothing to do with the carjacking were
true. Co-defendant Brown claimed that he decided to implicate Defendant in the offenses
because Co-defendant Brown was upset that he got caught.
Based on this evidence, the jury convicted Defendant as charged in the indictment.
Sentencing
The presentence report was entered as an exhibit to the hearing. Officer James
Cunningham of the LaVergne Police Department testified that he arrested Defendant on
November 23, 2022, for burglary in another case. Defendant had been released on bond
for the present offenses when he committed the burglary.
Mr. Frick submitted a victim impact statement. He testified that after Ms. Claxton
returned home on the day of the offenses, Defendant called her from the jail booking area,
which greatly upset her. He said: “She was extremely nervous, crying, shaky. She was - -
she was just ready to change everything and run.” Mr. Frick noted that Ms. Claxton also
changed her phone number. He said that she was afraid to leave her home after the
carjacking, and she had some anxiety.
On cross-examination, Mr. Frick testified that Defendant apologized when he called
Ms. Claxton and said that he “really did want to buy the car.” Defendant also said that he
did not know that anything was going to happen. On redirect examination, Mr. Frick
opined that Defendant “was not surprised” and knew “exactly what was happening.”
The trial court found that Defendant was a Range I, standard offender with no prior
convictions and applied three enhancement factors: that Defendant was the leader in the
commission of an offense involving two or more actors; that there was more than one
victim because Ms. Claxton was the victim in count one, and Mr. Frick was the victim in
count three; and that Ms. Claxton’s “response” to the offenses “was particularly great”
even though she was better at the time of the sentencing hearing, years after the offenses
occurred. T.C.A. § 40-35-114(2), (3), and (6). The trial court gave enhancement factor
two “great weight,” factor three “very little weight,” and factor six “moderate weight.” The
court did not apply any mitigating factors.
In considering consecutive sentencing, the trial court noted “by operation [of]
statute that [c]ount 2 is mandatory consecutive in this case to [c]ount 1.” The court found
that Defendant “is a dangerous offender whose behavior indicates little or no regard for
human life” and no hesitation about committing a crime when the risk to human life is
high. Id. § 40-35-115(2), (3), and (4). The trial court also found that the circumstances
surrounding the offense were “aggravated.”
-7-
In finding Defendant to be a dangerous offender, the trial court considered the
factors under State v. Wilkerson, 905 S.W.2d 933, 937-39 (Tenn. 1995), and found that “an
extended sentence [was] necessary” to protect society because Defendant was arrested
again “some two years” after the offenses in this case for “further criminal conduct.” The
trial court concluded “that based on the severity of the offenses committed that consecutive
sentences are reasonably related.” The trial court further concluded:
As I stated earlier, this was a well planned out carjacking, aggravated assault
where multiple messages were sent and received over, I guess Facebook or a
Messenger type application where [Defendant] and [Co-defendant Brown]
had multiple, multiple opportunities to not go through with what they did to
these two victims. Well, really these three victims. But Ms. Claxton, Mr.
Frick specifically in this case. Lured them to Murfreesboro to a public place.
At the last minute changed the location to the house. And then once they
arrived, the plan was put into - - I guess was completed at that point. Took
the car on a test drive, which is just simply beyond my comprehension that
you could plan something and be so cool and collected about a carjacking
that you would take the time to test drive the car. I suppose as if it didn’t
sound right that we might abandon the carjacking because we want a better
car. I don’t know what the reason for that is. But it’s incomprehensible that
you would take the time to test drive the car. And then at that point take the
car from these victims at gun point.
It’s an extremely, extremely violent and serious offense. There is really no
reason for it.
The trial court considered the factors for alternative sentencing and found that none
of them “favor probating any of these sentences.” More specifically, the trial court found
that “confinement is particularly suited to provide an effective deterrent to others likely to
commit similar offenses.” The trial court further concluded:
I do not find that measures less restrictive have frequently or recently been
applied to the original convictions in this case. However, based on the fact
that he was out from this case and has now been charged with other crimes,
I do find that that factor applies in my assessment of whether probation is
warranted. And find that it does not favor [Defendant].
And then finally, I find that confinement is necessary to avoid depreciating
the seriousness of the offense. Specifically, and I’m not required to find this
based on finding other factors within 40-35-103, but I’m going to specifically
find that the criminal act here is especially violent, horrifying, shocking, and
reprehensible.
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I don’t find that there’s potential for rehabilitation or treatment of
[Defendant]. And I find in looking at the factors in State v. Washington that
none of those factors favor [Defendant].
The trial court sentenced Defendant as a Range I offender to twelve years at seventy-
five percent release eligibility for count one, six years at one hundred percent for count
two, and six years at thirty percent each for counts three and four. The trial court ordered
counts one and two to be served consecutively as a matter of law, count three to be served
consecutively to count two, and count four to be served concurrently with count one for an
effective twenty-four-year sentence to be served in confinement. Defendant filed a timely
motion for new trial that was denied by the trial court. It is from this that Defendant now
appeals.
Analysis
I. Jury Instructions
Defendant contends that the trial court erred in instructing the jury on employment
of a firearm during the commission of a dangerous felony under Tennessee Code Annotated
39-17-1324 in count two of the indictment. Because Defendant failed to object to the jury
instruction at trial or raise the issue in his motion for new trial, he requests that we review
this issue as a matter of plain error. The State argues that Defendant cannot establish plain
error.
Defendant’s brief argues that the trial court’s jury instruction on the count two
charge of employment of a firearm during the dangerous felony of carjacking was plain
error because that charge, along with the jury instruction that the count one carjacking
charge could have been committed by force or intimidation or by use of a deadly weapon,
created a violation of Tennessee Code Annotated section 39-17-1324. The State’s
responsive brief also addresses the issue in the context of the jury instruction and argues
that because Defendant was charged with both theories of carjacking, the jury could have
found Defendant guilty of the crime by force or intimidation and not by use of the deadly
weapon, thereby allowing the firearm charge to proceed.
Thus, while the issue was raised as a jury instruction issue, the parties’ briefs address
both the jury instructions and the case law interpreting and applying the Tennessee Code
Annotated section 39-17-1324(c) prohibition that a person may not be charged with
employing a firearm during the commission of a dangerous felony when possessing or
employing a firearm is an essential element of the dangerous felony. T.C.A. § 39-17-
1324(c). Accordingly, we will address the issue in the context of the jury instructions and
as to whether the count two firearm conviction was void. See Byers v. State, No. W2011-
00473-CCA-R3-PC, 2012 WL 938976, at *8 (Tenn. Crim. App. Mar. 15, 2012) (holding
that charging a defendant with employing a firearm during the commission of a dangerous
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felony and especially aggravated kidnapping by use of a deadly weapon when the deadly
weapon used was a firearm was in direct contravention to Tennessee Code Annotated
section 39-17-1324(c) resulting in a “void” conviction).
The offense of carjacking may be committed in either of two ways: by use of a
deadly weapon or by force or intimidation. T.C.A. § 39-13-404(a). The State is not
required to make an election when there is a single count of carjacking committed under
alternative theories. State v. Wade, No. M2020-01518-CCA-R3-CD, 2021 WL 3197195,
at *1-2 (Tenn. Crim. App. July 29, 2021), perm. app. denied (Tenn. Oct. 13, 2021).
However, pursuant to statute, a person may not be charged with employing a firearm during
the commission of a dangerous felony, in this case carjacking, when possessing or
employing a firearm is an essential element of the dangerous felony. T.C.A. § 39-17-
1324(a), (c), (i)(1)(D).
Turning to the issue in the context of the jury instruction, generally, an issue is
waived when a defendant fails to make a contemporaneous objection during trial and fails
to raise the issue in a motion for new trial. See Tenn. R. App. P. 36(a); Tenn. R. App. P.
3(e). “Ordinarily, issues raised for the first time on appeal are waived.” State v. Alvarado,
961 S.W.2d 136, 153 (Tenn. Crim. App. 1996) (citing State v. Burtis, 664 S.W.2d 305, 310
(Tenn. Crim. App. 1983)). However, under the plain error doctrine, “[w]hen necessary to
do substantial justice, an appellate court may consider an error that has affected the
substantial rights of a party at any time, even though the error was not raised in the motion
for a new trial[.]” Tenn. R. App. P. 36(b).
To obtain relief under plain error, the defendant must demonstrate the existence of
five factors: (1) the record clearly establishes what occurred in the trial court; (2) a clear
and unequivocal rule of law was breached; (3) a substantial right of the accused was
adversely affected; (4) the accused did not waive the issue for tactical reasons; and (5)
consideration of the error is necessary to do substantial justice. State v. Rimmer, 623
S.W.3d 235, 255-56 (Tenn. 2021) (citing State v. Martin, 505 S.W.3d 492, 504 (Tenn.
2016)). Because this court will only grant plain error relief when all five factors have been
established, we need not consider all factors if it is clear from the record that at least one
factor cannot be established. State v. Smith, 24 S.W.3d 274, 283 (Tenn. 2000). Plain error
relief should be “sparingly exercised.” State v. Bledsoe, 226 S.W.3d 349, 354 (Tenn.
2007). Thus, plain error relief is only warranted when the error was “of such a great
magnitude that it probably changed the outcome of the trial.” State v. Adkisson, 899
S.W.2d 626, 642 (Tenn. Crim. App. 1994) (quoting United States v. Kerley, 838 F.2d 932,
937 (7th Cir. 1988)).
In this case, Defendant can clearly establish factors one, two, three, and five to
establish plain error. Here, the record clearly establishes what happened in the trial court.
Defendant was indicted for carjacking by force or intimidation or with a deadly weapon
(count one). He was also indicted for employing a firearm during the commission of a
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dangerous felony, to wit: carjacking (count two). At trial, the court instructed the jury on
the offense of employing a firearm during the commission of a dangerous felony as
follows:
Any person who employs a firearm during the commission of a dangerous
offense 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 “carjacking;” and
(3) that the Defendant acted either intentionally, knowingly, or
recklessly.
The trial court instructed the jury on carjacking as follows:
Any person who commits the offense of carjacking 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 took a motor vehicle from the possession of
another by use of a deadly weapon or by use of force or intimidation;
and
(2) that the Defendant acted either intentionally or knowingly.
In closing argument, the State argued that the carjacking was committed by force
with a deadly weapon, a firearm. The proof at trial also showed that the carjacking in this
case was committed with a firearm. Defendant was convicted of carjacking and employing
a firearm during the commission of a dangerous felony in accordance with the indictment
and jury charge.
In this case, Defendant was indicted under both theories of carjacking: “[Defendant]
did unlawfully and knowingly take a motor vehicle from the possession of Victoria Claxton
by use of a deadly weapon, to-wit: a firearm, or by the use of force or intimidation.” The
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trial court then instructed the jury on both theories. The trial court also charged the jury on
count two, employing a firearm during the commission of the dangerous felony of
carjacking.
“[T]he trial court has a duty ‘to give a complete charge of the law applicable to the
facts of a case.’” State v. Thompson, 285 S.W.3d 840, 842 n.1 (Tenn. 2009) (quoting State
v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986)). “Moreover, the trial court must provide
the jury with proper instructions as to the law governing the issues raised and the evidence
introduced even without request.” State v. Powell, No. E2011-00155-CCA-R3-CD, 2012
WL 1655279, at *15 (Tenn. Crim. App. May 10, 2012) (citing State v. Dorantes, 331
S.W.3d 370, 390 (Tenn. 2011)). As discussed above, because Defendant was charged with
carjacking committed by use of a deadly weapon, the charging of employment of a firearm
during the commission of the felony of carjacking was contrary to Tennessee Code
Annotated section 39-17-1324(c). For these same reasons, a substantial right of the
accused was adversely affected.
Also, consideration of the error is necessary to do substantial justice. As discussed
above, Defendant could not be convicted of both carjacking by use of a deadly weapon and
employing a firearm during the commission of the dangerous felony of carjacking. Byers,
2012 WL 938976, at *9.
However, as to the fourth factor of plain error review, we cannot say that Defendant
did not waive this issue for tactical reasons. It may very well be that trial counsel realized
that Defendant could not be indicted for both carjacking by use of a deadly weapon and
employing a firearm during the commission of a dangerous felony and therefore, chose to
raise this issue for the first time on appeal under plain error in order for the mandatory
consecutive conviction to be dismissed as void.
Although Defendant has not established plain error, we conclude that Defendant’s
conviction for employing a firearm during the commission of a dangerous felony is void.
The State charged Defendant in a single indictment with carjacking by force or intimidation
or by use of a deadly weapon, specifically a firearm. Thus, the inclusion of the deadly
weapon element in the carjacking charge precluded the State from then proceeding with
the count two charge of employing a firearm during the commission of the carjacking
because it is in direct contravention of Tennessee Code Annotated section 39-17-1324(c).
See Byers, 2012 WL 938976, at *9; State v. Dawson, No. W2010-02621-CCA-R3-CD,
2012 WL 1572214, at *8 (Tenn. Crim. App. May 2, 2012). In Thomas v. State, No. W2012-
01646-CCA-R3-PC, 2013 WL 5761398, at *6 (Tenn. Crim. App. June 28, 2013), a panel
of this court noted:
By promulgating this statutory provision, our legislature barred the criminal
prosecution of violations of section 39-17-1324 when the underlying
dangerous felony included, as an essential element, the use of a firearm. The
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practical result is that, when the underlying dangerous felony includes the
use of a firearm as an essential element, the separate crime of employing a
firearm during the commission of the dangerous felony does not exist. In
such an instance, this [c]ourt previously has recognized, “due process does
not countenance the conviction of a nonexistent crime.” State v. Powell, No.
E2011-00155-CCA-R3-CD, 2012 WL 1655279, at *15 (Tenn. Crim. App.
May 10, 2012) (citing Adams v. Murphy, 653 F.2d 224, 225 (5th Cir. 1981)).
Therefore, we reverse, vacate and dismiss Defendant’s conviction for employing a firearm
during the commission of a dangerous felony in count two.
II. Sufficiency of the Evidence
Defendant contends that the evidence was insufficient to support each of his
convictions. Even though we have dismissed count two, we will address the sufficiency
of the evidence for all counts in the event of further appellate review. See State v.
McKinney, No. M2014-02125-CCA-R3-CD, 2016 WL 106790, at *15 (Tenn. Crim. App.
Jan. 11, 2016). The State contends that the evidence is sufficient to support Defendant’s
convictions. We agree with the State.
When a defendant challenges the sufficiency of the evidence, this court is obliged
to review that claim according to certain well-settled principles. The relevant question is
whether any rational trier of fact could have found the accused guilty of every element of
the offense beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Jackson v. Virginia,
443 U.S. 307, 319 (1979); State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011).
Because the jury’s verdict replaces the presumption of innocence with one of guilt,
the burden on appeal is shifted onto the defendant to show that the evidence introduced at
trial was insufficient to support such a verdict. State v. Reid, 91 S.W.3d 247, 277 (Tenn.
2002). Thus, “‘we afford the prosecution the strongest legitimate view of the evidence as
well as all reasonable and legitimate inferences which may be drawn therefrom.’” Davis,
354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010)).
Questions involving the credibility of witnesses and the weight and value to be given the
evidence, as well as all factual disputes raised by the evidence, are resolved by the jury as
the trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); State v. Pruett, 788
S.W.2d 559, 561 (Tenn. 1990). “A guilty verdict by the jury, approved by the trial court,
accredits the testimony of the witnesses for the State and resolves all conflicts in favor of
the prosecution’s theory.” Reid, 91 S.W.3d at 277 (quoting Bland, 958 S.W.2d at 659). It
is not the role of this court to reweigh or reevaluate the evidence, nor to substitute our own
inferences for those drawn from the evidence by the trier of fact. Id. The standard of
review is the same whether the conviction is based upon direct evidence, circumstantial
evidence, or a combination of the two. Dorantes, 331 S.W.3d at 379; State v. Hanson, 279
S.W.3d 265, 275 (Tenn. 2009).
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Under the theory of criminal responsibility, “[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). Criminal responsibility for the actions of another arises when a 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. at § 39-11-402(2). Criminal responsibility is not a separate
crime but a “theory by which the State may prove the defendant’s guilt of the alleged
offense . . . based upon the conduct of another person.” State v. Lemacks, 996 S.W.2d 166,
170 (Tenn. 1999). “[U]nder the theory of criminal responsibility, presence and
companionship with the perpetrator of a felony before and after the commission of the
crime are circumstances from which an individual’s participation may be inferred.” State
v. Phillips, 76 S.W.3d 1, 9 (Tenn. Crim. App. 2001). However, “the evidence must
establish that [the] defendant in some way knowingly and voluntarily shared in the criminal
intent of the crime and promoted or assisted its commission.” State v. Pope, 427 S.W.3d
363, 369 (Tenn. 2013).
As relevant to this case, the crime of carjacking is defined as “the intentional or
knowing taking of a motor vehicle from the possession of another by use of: (1) [a] deadly
weapon; or (2) [f]orce or intimidation.” T.C.A. § 39-13-404(a).
It is an offense to employ a firearm during the commission of or attempt to commit
a dangerous felony. Id. § 39-17-1324(b). Carjacking as defined in Tennessee Code
Annotated section 39-13-404 is a dangerous felony. Id. § 39-17-1324(i)(1)(D).
A person commits aggravated assault when he or she “intentionally or knowingly
commits an assault” involving the “use or display of a deadly weapon.” Id. § 39-13-
102(a)(1)(A)(iii). A person commits assault by “intentionally or knowingly” causing the
victim to “reasonably fear imminent bodily injury.” Id. § 39-13-101(a)(2).
Defendant was also convicted of conspiracy to commit carjacking. The offense of
conspiracy is committed if two or more people, each having the culpable mental state
required for the offense which is the object of the conspiracy and each acting for the
purpose of promoting or facilitating commission of an offense, agree that one or more of
them will engage in conduct which constitutes such offense. Id. § 39-12-103(a). It is also
required that “an overt act in pursuance of the conspiracy is alleged and proved to have
been done by the person or by another with whom the person conspired.” Id. § 39-12-
103(d).
To prove the existence of a conspiratorial relationship, the State may show that a
“mutual implied understanding” existed between the parties. State v. Shropshire, 874
S.W.2d 634, 641 (Tenn. Crim. App. 1993). A formal agreement is not necessary. Id. The
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conspiracy may be demonstrated by circumstantial evidence and the conduct of the parties
while undertaking the illegal activity. Id. “‘Conspiracy implies concert of design and not
participation in every detail of execution.’” Id. (quoting Randolph v. State, 570 S.W.2d
869, 871 (Tenn. Crim. App. 1978)).
Viewed in a light most favorable to the State, Defendant in this case was involved
in contacting Ms. Claxton under the guise of buying a car she had listed for sale on
Facebook Marketplace. Defendant arranged the meeting with Ms. Claxton, who was
accompanied by her father, Mr. Frick, and her younger brother, at an unoccupied residence
on Gold Valley Drive. Co-defendant Brown, who was armed with a handgun that he
carried in a backpack, accompanied Defendant to the meeting point. Defendant test-drove
the car with Co-defendant Brown and Mr. Frick after which, Defendant indicated that he
would buy the car. He even signed the title and the bill of sale was completed.
When Mr. Frick asked for payment for the car, Co-defendant Brown pulled the gun
out of his backpack, pointed it at Mr. Frick, and demanded the keys to the vehicle. Mr.
Frick testified that he was afraid of “challenging the gun” and “wasn’t going to test it.”
Defendant then drove away in the car with Co-defendant Brown in the back seat. The two
men later fled together to avoid police after the car was found. At trial, Mr. Frick testified
that Co-defendant Brown never pointed the gun at Defendant, and Defendant did not react
or seem fearful when Co-defendant Brown pulled the gun out of the backpack.
In his sworn affidavit in support of his guilty plea, which was introduced at trial,
Co-defendant Brown identified videos of him and Defendant in Ripley, Tennessee in
possession of and shooting the gun that was used in the offenses in this case. He and
Defendant also took photos with the weapon. Co-defendant Brown further declared:
While here in Murfreesboro, [Defendant] set up some robberies. I would
take the property and turn it over to [Defendant]. He would get rid of the
property. I would describe our partnership as two brothers and that I was the
muscle and [Defendant] was the one who set up each robbery, using his
Facebook account. I used the word “mastermind” in describing
[Defendant’s] role in the robberies when I was first interviewed by Detective
Pate, following my arrest in the carjacking. He planned them, I did the
robbery and gave him the property.
I had no Facebook account, and [Defendant] used his account to set up the
robbery - - set up each robbery.
Co-defendant Brown also said that Defendant knew he took the gun from the
backpack and knew Co-defendant Brown was to be the “muscle.”
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From this proof, a reasonable jury could conclude that Defendant was criminally
responsible for the intentional or knowing taking of Ms. Claxton’s vehicle by use of a
deadly weapon or use of force or intimidation and for Co-defendant Brown’s use of the
gun to cause Mr. Frick to “reasonably fear imminent bodily injury.” The facts also support
the State’s theory that Defendant and Co-defendant Brown conspired to take Ms. Claxton’s
vehicle and took an overt act to complete the act of carjacking, and that Defendant was
criminally responsible for Co-defendant Brown’s employment of a firearm during the
carjacking. We note that although Co-defendant Brown recanted the statements contained
in his affidavit at trial, the jury was free to disbelieve him. Defendant is not entitled to
relief on this issue.
III. Sentencing
Defendant argues that the trial court erred in weighing the enhancement factors that
were applied to his sentences, by finding him to be a dangerous offender under State v.
Wilkerson, 905 S.W.2d 933 (Tenn. 1995), and by imposing partial consecutive sentencing.
In the event of further appellate review, we will address sentencing for Defendant’s
dismissed conviction for employing a firearm during the commission of a dangerous felony
in count two. State v. Ashley, No. W2004-01319-CCA-MR3-CD, 2006 WL 889567, *6
(Tenn. Crim. App. Apr. 5, 2006). The State asserts that the sentences are proper. We agree
with the State.
On appeal, the party challenging the sentence bears the burden of establishing that
the sentence is improper. State v. Branham, 501 S.W.3d 577, 595 (Tenn. Crim. App. 2016).
This court reviews sentencing decisions under an “abuse of discretion standard of review,
granting a presumption of reasonableness to within-range sentencing decisions that reflect
a proper application of the purposes and principles of our Sentencing Act.” State v. Bise,
380 S.W.3d 682, 707 (Tenn. 2012). “A trial court abuses its discretion when it applies
incorrect legal standards, reaches an illogical conclusion, bases its ruling on a clearly
erroneous assessment of the proof, or applies reasoning that causes an injustice to the
complaining party.” State v. Phelps, 329 S.W.3d 436, 443 (Tenn. 2010) (citing State v.
Jordan, 325 S.W.3d 1, 38-40 (Tenn. 2010)).
Once a trial court determines the appropriate range of punishment, the trial court
must consider: (1) the evidence received at trial and the sentencing hearing; (2) the
presentence report, including a validated risk and needs assessment; (3) any arguments as
to sentencing alternatives; (4) the nature and characteristics of the criminal conduct; (5)
any applicable mitigating and enhancement factors; (6) any statement the defendant makes
on his behalf; and (7) statistical information provided by the administrative office of the
courts as to sentencing practices for similar offenses in Tennessee. T.C.A. § 40-35-210(a),
(b). Additionally, the sentence imposed should be “no greater than that deserved for the
offense committed” and “the least severe measure necessary to achieve the purposes for
which the sentence is imposed.” Id. § 40-35-103(2), (4).
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When adjusting the length of a sentence within the appropriate range, a trial court
is guided by, but not bound by, any applicable mitigating and enhancement factors. State
v. Mosley, No. W2022-01424-CCA-R3-CD, 2024 WL 1406156, at *21 (Tenn. Crim. App.
Apr. 2, 2024) (quoting Bise, 380 S.W.3d at 706), perm. app. denied (Tenn. July 18, 2024).
It is within the trial court’s sound discretion to weigh any applicable mitigating or
enhancement factors. State v. Nelson, No. M2023-00176-CCA-R3-CD, 2024 WL
1192985, at *15 (Tenn. Crim. App. Mar. 20, 2024) (quoting State v. Carter, 254 S.W.3d
335, 345 (Tenn. 2007)), no perm. app. filed. Thus, “a trial court’s misapplication of an
enhancement or mitigating factor does not invalidate the sentence imposed unless the trial
court wholly departed” from the sentencing act. Bise, 380 S.W.3d at 706.
Here, the trial court found that Defendant was a Range I, standard offender. See
T.C.A. § 40-35-105. The trial court imposed within-range sentences for each conviction.
See id. § -112(a)(2), (a)(4) (mandating that a Range I sentence be between eight and twelve
years for a Class B felony and three years and six years for a Class C felony). Additionally,
the trial court imposed partial consecutive sentencing. See id. § -115(a)(5).
The trial court applied three enhancement factors: that Defendant was the leader in
the commission of an offense involving two or more actors; that there was more than one
victim because Ms. Claxton was the victim in count one, and Mr. Frick was the victim in
count three; and that Ms. Claxton’s “response” to the offenses “was particularly great”
even though she was better at the time of the sentencing hearing, years after the offenses
occurred. Id. § -114(2), (3), and (6). Defendant does not contest application of the three
factors, and the record reflects that they were appropriately applied. The trial court gave
enhancement factor two “great weight,” factor three “very little weight,” and factor six
“moderate weight.” The court found that no mitigating factors applied.
Defendant contends that the trial court erred in applying “great weight” to
enhancement factor two, that Defendant was the leader in an offense involving two or more
actors. In his brief, he argues that “the trial court abused its discretion by giving great
weight to a factor so heavily reliant on the statements of a perjured witness.” However, it
is well-settled that “mere disagreement with the trial court’s weighing of the properly
assigned enhancement and mitigating factors is no longer a ground for appeal” since the
2005 amendments to the Sentencing Act. Bise, 380 S.W.3d at 706; see State v. Barnes,
No. M2024-00016-CCA-R3-CD, 2025 WL 25896, at *11 (Tenn. Crim. App. Jan. 3, 2025),
perm. app. pending. Defendant is not entitled to relief because the trial court properly
exercised its discretion in imposing a within-range sentence of twelve years in count one
and six years each in counts two, three, and four.
The standard of review adopted in Bise applies to decisions by trial courts regarding
consecutive sentencing. State v. Pollard, 432 S.W.3d 851, 859 (Tenn. 2013). This means
that the reviewing court will give “deference to the trial court’s exercise of its discretionary
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authority to impose consecutive sentences if it has provided reasons on the record
establishing at least one of the seven grounds listed in Tennessee Code Annotated section
40-35-115(b).” Id. at 861. As relevant to this case, the trial court may order sentences to
run consecutively if it finds by a preponderance of the evidence that a defendant is “a
dangerous offender whose behavior indicates little or no regard for human life and no
hesitation about committing a crime in which the risk to human life is high[.]” T.C.A. §
40-35-115(b)(4).
Before a trial court may impose consecutive sentences on the basis that a defendant
is a dangerous offender, the trial court must find that consecutive sentences are reasonably
related to the severity of the offenses committed and are necessary to protect the public
from further criminal conduct. Wilkerson, 905 S.W.2d at 937-39. “The adoption of the
abuse of discretion standard with the presumption of reasonableness has not eliminated this
requirement.” Pollard, 432 S.W.3d at 863. In order to limit the use of the “dangerous
offender” category to cases where it is warranted, the trial court must make specific
findings about “particular facts” which show that the Wilkerson factors apply to the
defendant. State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999).
When imposing consecutive sentences, the trial court must still consider the general
sentencing principles that each sentence imposed shall be “justly deserved in relation to the
seriousness of the offense,” “no greater than that deserved for the offense committed,” and
“the least severe measure necessary to achieve the purposes for which the sentence is
imposed.” T.C.A. §§ 40-35-102(1), -103(2), -103(4); State v. Imfield, 70 S.W.3d 698, 708
(Tenn. 2002). “So long as a trial court properly articulates reasons for ordering consecutive
sentences, thereby providing a basis for meaningful appellate review, the sentences will be
presumed reasonable and, absent an abuse of discretion, upheld on appeal.” Pollard, 432
S.W.3d at 862 (citing Tenn. R. Crim. P. 32(c)(1); Bise, 380 S.W.3d at 705).
We first note that the firearm charge in count two is required to be served
consecutively to “any other sentence the person is serving at the time of the offense or is
sentenced to serve for conviction of the underlying dangerous felony.” Id. § 39-17-
1324(e)(1). Thus, were the firearm conviction not dismissed in this case, it was
appropriately ordered to be served consecutively.
Regarding the remaining sentences, the trial court in this case made the findings
required under Wilkerson and cited specific facts from the case to support the imposition
of consecutive sentences. The trial court specifically found that Defendant was a
“dangerous offender whose behavior indicates little or no regard for human life and no
hesitation about committing a crime in which the risk to human life is high.” T.C.A. § 40-
35-115(b)(4). The court further found that an “extended sentence is necessary to protect
the public against further criminal conduct” noting that Defendant was arrested for burglary
while on bond in this case. Wilkerson, 905 S.W.2d at 939.
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The trial court concluded that the circumstances of the offenses were “aggravated”
and said, “He has no hesitation about committing a crime when the risk to human life is
high. I would note that that is inherent in all four of these conviction offenses as I have
previously found.” In determining that consecutive sentences in the case reasonably relate
to the severity of the offenses, the trial court noted that Defendant and Co-defendant Brown
had a “well planned out carjacking, aggravated assault” and that they lured the victims to
a public place through “messages . . . sent and received over . . . Facebook.” The court
also pointed out that Defendant and Co-defendant Brown had “multiple, multiple
opportunities to not go through with what they did to these two victims.” The court
concluded, “It’s an extremely, extremely violent and serious offense. There is really no
reason for it.”
Because the trial court stated its reasons for running the sentences consecutively as
required under Wilkerson and Pollard, and those reasons are consistent with the principles
and purposes of sentencing, we defer to the trial court’s sentencing decision. The trial court
did not abuse its discretion in sentencing Defendant. Defendant has not overcome the
presumption that his sentence is reasonable and is not entitled to relief.
IV. Clerical Error on the Judgment Forms
Finally, Defendant contends that the judgment form for count one contains a clerical
error concerning the calculation of pretrial jail credits. We also note that this same
calculation of pretrial jail credit is also shown on the judgment form for count four.
Tennessee Rule of Criminal Procedure 36 provides that “the court may at any time
correct clerical mistakes in judgments, orders, or other parts of the record, and errors in the
record arising from oversight or omission.” Clerical errors “arise simply from a clerical
mistake in filling out the uniform judgment document and may be corrected at any time[.]”
State v. Brown, 479 S.W.3d 200, 208 (Tenn. 2015) (citation and internal quotations
omitted). Correcting clerical mistakes may include “supply[ing] omitted or overlooked
information.” State v. Allen, 593 S.W.3d 145, 154 (Tenn. 2020). “To determine whether
a clerical error has been made, a court ordinarily must compare the judgment with the
transcript of the trial court’s oral statements.” Brown, 479 S.W.3d at 213 (citation omitted).
When a conflict exists between the judgment and the transcript of the trial court’s
statements, the transcript controls. Id. This court has previously said that to obtain relief
under Rule 36:
[T]he record in the case must show that the judgment entered omitted a
portion of the judgment of the court or that the judgment was erroneously
entered. The most reliable indicator that clerical error was made is the
transcript of the hearing or other papers filed in connection with the
proceedings which show the judgment was not correctly entered. In the
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absence of these supporting facts, a judgment may not be amended under the
clerical error rule after it has become final.
State v. Davis, No. E2000-02879-CCA-R3-CD, 2002 WL 340597, at *3 (Tenn. Crim. App.
Mar. 4, 2002) (quoting State v. Thomas, No. 03C01-9504-CR-00109, 1995 WL 676396, at
*1 (Tenn. Crim. App. Nov. 15, 1995)). Failure to award pretrial jail credits is a clerical
error which does not render the sentence illegal. Brown, 479 S.W.3d at 213.
Defendant contends that the judgment form for count one contains a clerical error
by granting him pretrial jail credits from July 30, 2021, to October 13, 2021, because he
was arrested for the present offenses on July 30, 2020. He seeks a remand for this court to
“instruct” the trial court to grant him credits. This same notation for pretrial jail credits
also appears on the judgment form for count four. The record does in fact show that
Defendant was arrested for the present offenses on July 30, 2020, rather than July 30, 2021,
as reflected on the two judgment forms. However, as pointed out by the State, nothing in
the record indicates that Defendant was continuously confined during that period of time,
and the trial court did not address this issue at the sentencing hearing. Therefore, Defendant
has not established a “clerical error” under Tennessee Rule of Criminal Procedure 36. See
Davis, 2002 WL 340597, at *3. Defendant is not entitled to relief on this issue.
CONCLUSION
Following our review, we reverse, vacate and dismiss Defendant’s conviction for
employing a firearm during the commission of a dangerous felony (count two). In all other
aspects, we affirm the judgments of the trial court.
S/ Jill Bartee Ayers
JILL BARTEE AYERS, JUDGE
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