The Tennessee Supreme Court today held that the criminal gang-enhancement statute, Tennessee Code Annotated section 40-35-121, is worded broadly and does not require the State to specify in the indictment a criminal defendant’s gang subset. The statute also does not require the indictment to set forth that the defendant is in the same gang subset as the individuals whose criminal activity establishes the gang’s “pattern of criminal gang activity.”
In 2016, Dashun Shackleford (“Defendant”) along with his friend and fellow gang member, Jalon Copeland, was arrested for aggravated robbery as to four individuals in the Mechanicsville neighborhood of Knoxville. The neighborhood was known to be controlled by the Crips street gang. Defendant’s indictment contained twenty counts: four alternative counts of aggravated robbery against four victims and four corresponding counts of criminal gang offense enhancement. The gang-enhancement statute requires the State to give notice in separate counts of the indictment of the enhancement applicable under the statute. The indictment also alleged that Defendant was a Crips gang member and listed the convictions of several alleged fellow Crips members to prove Defendant’s gang had a “pattern of criminal gang activity,” as also required by the gang-enhancement statute. A Knox County jury convicted Defendant as charged. Notably, the gang-enhancement conviction increased Defendant’s aggravated robbery convictions from Class B felonies to Class A felonies.
Defendant appealed arguing, among other things, that the evidence at trial was insufficient to support his gang-enhancement conviction. The Court of Criminal Appeals agreed, taking particular issue with the allegation in the indictment that Defendant and the other gang members listed therein were plain Crips. In the gang enhancement phase of trial, the proof established that the majority of the gang members listed in the indictment, including Defendant, were members of several different subsets of the Crips gang. The intermediate court concluded that the State failed to prove that Defendant’s subset gang had engaged in a pattern of criminal gang activity and failed to comply with the notice requirements of the gang-enhancement statute. In doing so, the court also, sua sponte, determined that a fatal variance existed between the indictment and proof at trial. The Court of Criminal Appeals, therefore, reverted Defendant’s aggravated robbery convictions to Class B felonies.
The Supreme Court granted the State’s application for permission to appeal. The Court first reviewed the language of the gang-enhancement statute and determined that the statute is worded broadly and does not reflect an intent on the part of the legislature to narrowly define a gang by its subsets. The Supreme Court concluded that the State met its statutory burden by alleging in the indictment that Defendant was a member of the Crips gang and alleging prior convictions from fifteen different gang members identified therein as Crips. According to the Court, whether Defendant meets the criteria of a gang member and is in a criminal gang are questions for a properly instructed jury. The Court further determined that the Court of Criminal Appeals erred in concluding that there was a fatal variance between the indictment and the proof presented during the gang enhancement phase of trial. Therefore, the Supreme Court reversed the decision of the Court of Criminal Appeals and reinstated the trial court’s judgments.
The Supreme Court heard oral arguments in this case at Columbia Central High School in December as part of its SCALES (Supreme Court Advancing Legal Education For Students) project. To read the unanimous opinion in State v. Dashun Shackleford, authored by Chief Justice Roger A. Page, visit the opinions section of TNCourts.gov.