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State v. Wilson8/2/2001
f especially aggravated robbery was not harmless beyond a reasonable doubt. See State v. Curtis J. Ely, ___S.W.3d ___ (Tenn. 2001), No. E1998-00099-SC-R11-CD, 2001 WL 605097, at *14, (June 5, 2001)(". . .when determining whether an erroneous failure to instruct on a lesser- included offense requires reversal, we hold that the proper inquiry for an appellate court is whether the error is harmless beyond a reasonable doubt."). Here, the trial court instructed the jury on especially aggravated robbery, aggravated robbery, robbery and theft under $500.
The Tennessee Supreme Court has held that a jury's decision to convict the Defendant of the highest offense charged is a necessary rejection of all lesser-included offenses of that higher offense, which have been included in the charge to the jury. See id., at *20 (citing State v. Williams, 977 S.W.2d 101, 106 (Tenn. 1998)).
However, we conclude that facilitation of a crime involves an entirely different analysis. Facilitation addresses the Defendant's role as a facilitator, rather than a principal actor. The Defendant's theory was that he did not share Christein's intent to rob the victim, but that he provided assistance to Christein by purchasing the gas for them to get to Steele's Creek Park. The intervening lesser offenses charged by the trial court addressed the theory that Defendant acted as a principal. The jury was not permitted to give consideration to a legally sufficient theory of liability proffered by the Defendant (i.e., facilitation); therefore, we are unable to find the error to charge facilitation was harmless beyond a reasonable doubt. We, therefore, reverse Defendant's conviction for especially aggravated robbery in Count III, and remand for a new trial on especially aggravated robbery.
B. Lesser-Included Offenses Of Felony Murder
The Defendant also contends that the trial court erred in not charging the jury on facilitation of first degree felony murder, second degree murder, and voluntary manslaughter as lesser-included offenses of felony murder. The State argues that there are no lesser-included offenses of felony murder. However, our supreme court's recent opinion in State v. Curtis J. Ely, supra, which was filed after the filing of this appeal, held that there are lesser-included offenses of felony murder.
In Ely, the Tennessee Supreme Court held that facilitation of felony murder is a lesser-included offense of felony murder, under part (c) of the Burns test. Ely, 2001 WL 605097, at *7; Burns, 6 S.W.3d 453 at 466-67. To prove a defendant guilty of facilitation of felony murder, the state must show that the defendant knew his co-defendant was planning to commit the underlying felony, and the person knowingly furnished substantial assistance in the commission of that felony. See State v. Lewis, 919 S.W.2d 62, 68 (Tenn. Crim. App. 1995) (concluding that when a defendant "is charged with a felony by way of criminal responsibility for the conduct of another, facilitation of the felony would be a lesser included offense"), overruled on other grounds by Williams, 977 S.W.2d at 106 n. 7. Additionally, we find that evidence does exist that reasonable minds could accept as to the lesser-included offense of facilitation and the evidence is legally sufficient to support a conviction for the lesser-included offense of facilitation of felony first degree murder. The jury could well have concluded that the Defendant lacked the intent to rob the victim, but that he provided substantial assistance to Christein. Thus, it was error not to charge facilitation of felony murder.
We also find that the failure to charge facilitation of felony murder was not harmless beyond a reasonable doubt. As w
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