State of Tennessee v. Dashun Shackleford

This appeal concerns the criminal gang-enhancement statute, Tennessee Code Annotated
section 40-35-121, and specifically what is required in an indictment to sufficiently plead
and provide notice under the statute. Dashun Shackleford (“Defendant”) was arrested for
aggravated robbery as to four individuals in September 2016, along with his friend and
fellow gang member, Jalon Copeland. Defendant’s indictment contained twenty counts:
four alternative counts each 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 fifteen 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. The
trial court merged the aggravated robbery convictions into four counts and imposed a total
effective sentence of twenty years to be served at eighty-five percent. In this case, 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, with only one of the listed men identified as a plain Crip. 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 a classification lower in
the absence of the gang enhancement. After review, we conclude that the Court of Criminal
Appeals erred in its decision. The gang-enhancement statute is worded broadly and does
not require the State to specify in the indictment a criminal defendant’s gang subset nor
that the defendant is in the same gang subset as the individuals whose criminal activity
establishes the gang’s “pattern of criminal gang activity.” Defendant waived all other issues
by failing to properly raise them before the trial court or on appeal. Therefore, the decision
of the Court of Criminal Appeals is reversed and the trial court’s judgments are reinstated.