IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs December 21, 2021

STATE OF TENNESSEE v. JESSE D. MOSES

Appeal from the Criminal Court for McMinn County

No. 18-CR-205 Andrew M. Freiberg, Judge

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No. E2021-00231-CCA-R3-CD

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A jury convicted Defendant, Jesse D. Moses, of one count of Class B felony unlawful 

possession of a firearm after being convicted of a felony involving the use or attempted use 

of force, violence, or a deadly weapon. See Tennessee Code Annotated section 39-17-

1307(b)(1)(A) (2017). The trial court sentenced Defendant to twenty years’ incarceration 

with a thirty-five percent release eligibility. On appeal, Defendant argues that the evidence 

was insufficient to prove that his prior conviction for aggravated burglary was a felony 

involving the use of force, violence, or a deadly weapon and that the trial court erred by 

instructing the jury that a “[p]rior ‘crime of violence’ includes any degree of burglary.” 

Upon review, we determine that Defendant’s prior aggravated burglary was a felony 

involving the use of force, violence, or a deadly weapon and that the trial court’s jury 

instruction was not prejudicially erroneous. We affirm the judgment of the trial court. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ROBERT L. HOLLOWAY,JR.,J., delivered the opinion of the court, in which NORMA MCGEE 

OGLE and J. ROSS DYER, JJ., joined.

Todd W. Gee, Cleveland, Tennessee, for the appellant, Jesse D. Moses.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant 

Attorney General; Stephen D. Crump, District Attorney General; and Shari Tayloe, 

Assistant District Attorney General, for the appellee, State of Tennessee.

04/06/2022
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OPINION

Factual and Procedural History

Cleveland Police Department Detective Don Nation testified that, on January 24, 

2018, he executed a search warrant with the Tenth Judicial Drug Task Force (“Task Force”)

and officers from the Athens Police Department at a residence on Palo Alto Street in 

Athens. He stated that Task Force officers, Athens City police officers, and McMinn 

County Sheriff’s Office (“MCSO”) officers all assisted in executing the search warrant 

because they had information that there were weapons in the house. Detective Nation said 

that, when he entered the residence, he “placed [Defendant] into custody,” searched him 

for weapons, and found a loaded .22 black revolver in a holster and some loose ammunition 

in Defendant’s pocket. 

MCSO Deputy Cameron Cordell testified that, as a member of the Task Force, he 

assisted in the execution of the search warrant on the Palo Alto residence on January 24, 

2018. He said that, when he entered the residence, he observed Defendant in the living 

room wearing “some type of . . . holster vest.” Officer Cordell saw a “firearm handle 

sticking out of [the holster].”

MCSO Detective Jared Price testified that he worked on the Task Force and assisted 

in executing the search warrant on the Palo Alto residence. He stated that there were 

multiple people in the residence at the time. Detective Nation gave Detective Price the 

revolver and ammunition he had taken from Defendant. Detective Price logged the 

evidence as a “Rossi .22 firearm.” When Detective Price ran the revolver’s serial number, 

he learned that it had been stolen. 

A certified copy of Defendant’s prior conviction for aggravated burglary was 

entered into evidence without objection. 

After the State rested its case in chief, defense counsel moved for a judgment of 

acquittal. In his written motion, defense counsel argued that “[i]t is clear from the burglary 

statutes cited that [a]ggravated [b]urglary is not necessarily a felony involving the use or 

attempted use of force, violence, or a deadly weapon” and that “[t]he State has failed to put 

on proof that the [a]ggravated [b]urglary of which Defendant was previously convicted 

involved the use or attempted use of force, violence, or a deadly weapon.” Defense counsel 

further argued that the statutory definition of “crime of violence” did not apply to 

Defendant’s prior aggravated burglary conviction because “‘crime of violence’ is a term of 

art that is not used in the [unlawful possession] statute under which Defendant is charged.” 

He argued in the alternative that, even if the term “crime of violence” could be read into 

the unlawful possession statute, the definition of “crime of violence” at the time of the 

present offense did not include “aggravated burglary.”
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Defense counsel continued:

[The] State should have had to put on proof that [Defendant] had - his prior 

felony conviction [for] aggravated burglary had involved the use of force, 

attempted use of force, violence, or a deadly weapon. There’s been no 

testimony about the underlying facts of that aggravated burglary, and 

aggravated burglary is not inherently a forceful or violent or involving a 

deadly weapon type of conviction. I think that the statutory history shows 

that the legislature ultimately decided to fix that issue with the statute by 

saying - by now saying felony crime of violence does include aggravated 

burglary, but at the time of the - of this alleged offense, it did not, it did not 

say that. And I don’t think that according to its statutory definition burglary 

or aggravated burglary would have met the, the elements of this statute under 

which [Defendant] is charged.

The prosecutor disagreed and stated that “[t]he legislature defined in the statute at 

that time to include [‘]burglary[’] as a crime of violence under that particular statute[.]” 

The trial court denied the motion for judgment of acquittal, stating:

“39-17-1301 as used in this part,” meaning part (13) under Title, Weapons, 

unless context otherwise requires, “crime of violence includes any degree of

burglary.” Burglary statutes are 39-14 part (4). Part (4) is titled Burglary 

and Related Statutes. 402 is burglary, 403 is aggravated burglary, 404 is

especially aggravated burglary. And it talks about . . . [“]has been convicted 

of a felony involving use or attempted use of violence.[”] It just seems to fit

in the definition.

Defendant testified that he pled guilty to one count of aggravated burglary in 2009

when he was nineteen years old. He explained that he burglarized an empty residence, that 

he was not carrying a weapon during the burglary, and that no one was injured. Defendant 

explained that he paid the full restitution in the amount of $5,764.

On cross-examination, Defendant agreed that he had a 2009 conviction for theft of 

property valued over $1,000 and a 2014 conviction for theft of property valued over $1,000. 

Defendant said that Detective Nation did not retrieve a firearm from his person on January 

24, 2018. 

The trial court instructed the jury, including the following:

Any person having been convicted of one of certain specified felonies who 

possesses a firearm is guilty of a crime. For you to find [D]efendant guilty 
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of this offense, the State must have proven beyond a reasonable doubt the 

existence of the following essential elements: 

element (1) that [D]efendant had been convicted of the felony of aggravated

burglary; and 

element (2) that [D]efendant, after such felony conviction, possessed a 

firearm;

and element (3) that [D]efendant acted either intentionally, knowingly or 

recklessly; and 

element (4) that the felony involved the use or attempted use of force, 

violence or a deadly weapon.

Prior “crime of violence” includes any degree of burglary.

The jury found him guilty of unlawful possession of a firearm. At a subsequent 

sentencing hearing, the trial court sentenced him in the present case as a Range II multiple 

offender to twenty years’ incarceration with a thirty-five percent release eligibility.

Following the overruling of Defendant’s Motion for New Trial, this timely appeal 

was filed. 

Analysis

Jury Instructions

Defendant argues that the trial court erred when it instructed the jury that a “[p]rior 

‘crime of violence’ includes any degree of burglary.” He asserts that the phrase “crime of 

violence” is a term of art defined in Tennessee Code Annotated section 39-17-1301(3) for 

the purposes of Title 39. Defendant asserts that, prior to the 2018 amendment of the 

unlawful possession of a firearm statute, the term “crime of violence” did not describe the 

predicate felony to an unlawful possession of a firearm charge but instead was a term 

relevant to other statutes at the time. See e.g., Tenn. Code Ann. § 39-17-1304(a) (2017). 

Thus, he argues, the trial court erred by instructing the jury on what constituted a “crime 

of violence” for the purposes of the instant case. Defendant further asserts that, since 1989, 

there are no “degrees” of burglary.
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The State responds that this court has previously applied the “crime of violence” 

definition to the unlawful possession of a firearm statute. It argues that the definition for 

“crime of violence” in the 2017 statute necessarily included any class of burglary.

“[T]he trial court has a duty to provide a ‘complete charge of the law applicable to 

the facts of the case.’” State v. James, 315 S.W.3d 440, 446 (Tenn. 2010) (quoting State 

v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986)). However, jury instructions must be 

reviewed in their entirety, and phrases may not be examined in isolation. State v. Rimmer, 

250 S.W.3d 12, 31 (Tenn. 2008). “An instruction should be considered prejudicially 

erroneous only if the jury charge, when read as a whole, fails to fairly submit the legal 

issues or misleads the jury as to the applicable law.” State v. Majors, 318 S.W.3d 850, 

864-65 (Tenn. 2008) (quoting State v. Faulkner, 154 S.W.3d 48, 58 (Tenn. 2005)) (internal 

quotation marks omitted). As noted by our supreme court:

[J]urors do not sit in solitary isolation booths parsing instructions for subtle 

shades of meaning in the same way that lawyers might. Differences among 

them in interpretation of instructions may be thrashed out in the deliberative 

process, with commonsense understanding of the instructions in the light of 

all that has taken place at the trial likely to prevail over technical hairsplitting.

Rimmer, 250 S.W.3d at 31 (quoting State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997)). 

To determine whether a defendant is harmed by an erroneous instruction, “we must 

consider ‘whether the ailing instruction by itself so infected the entire trial that the resulting 

conviction violates due process.’” Id. (quoting Cupp v. Naughten, 414 U.S. 141, 147 

(1973)). To make that determination, the “significant question” is “‘whether there is a 

reasonable likelihood that the jury has applied the challenged instruction in a way’ that 

violates the Constitution.” Id. (quoting Estelle v. McGuire, 502 U.S. 62, 72 (1991)).

At the time of the offense, the statute governing a charge for unlawful possession of 

a firearm read, in pertinent part, “A person commits an offense who unlawfully possesses 

a firearm, as defined in § 39-11-106, and [h]as been convicted of a felony involving the 

use or attempted use of force, violence, or a deadly weapon[.]” Tenn. Code Ann. § 39-17-

1307(b)(1)(A) (2017).1 Also at the time of the offense, “crime of violence” was defined as 

“includ[ing] any degree of murder, voluntary manslaughter, aggravated rape, rape, 

 

1 The amended 2018 unlawful possession of a firearm statute reads, in pertinent part, “A person 

commits an offense who unlawfully possesses a firearm, as defined in § 39-11-106, and [h]as been 

convicted of a felony crime of violence, an attempt to commit a felony crime of violence, or a felony 

involving use of a deadly weapon[.]” Tenn. Code Ann. § 39-17-1307(b)(1)(A) (2018).
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especially aggravated robbery, aggravated robbery, burglary, aggravated assault or 

aggravated kidnapping[.]” Tenn. Code Ann. § 39-17-1301(3) (2017).2 

Initially we note that, since 1989, there are no “degrees” of burglary. See State v.

James Ford, III, No. 02C01-9304-CR-00078, 1994 WL 398811, at *1 (Tenn. Crim. App. 

Aug. 3, 1994) (“Prior to l989, burglary was divided into three degrees. . . . Now burglary 

is divided into three classes[.]”), perm. app. denied (Tenn. Jan 3. 1995). However, based 

upon jury-out discussions, it appears that the trial court intended to instruct the jury that 

any class of burglary was a “crime of violence.” We determine that the use of the word 

“degree” was not confusing and that it was clear to the jury that any class of burglary 

(including aggravated burglary or especially aggravated burglary) satisfied the element of 

the offense. There was no “‘likelihood that the jury [] applied the challenged instruction 

in a way’ that violate[d] the Constitution.” Rimmer, 250 S.W.3d at 31 (quoting Estelle, 

502 U.S. at 72).

Next, we have found no binding precedent regarding Defendant’s argument that the 

phrase “crime of violence” is a term of art that did not apply to the unlawful possession of 

a firearm statute until the 2018 amendments. Indeed, any “crime of violence,” as defined 

in section 39-17-1301(3), necessarily fits the definition of a crime “involving the use of . . 

. violence[.]” Tenn. Code Ann. § 39-17-1307(b)(1)(A) (2017). Moreover, no binding 

precedent exists requiring either strict adherence to the enumerated list in section 39-17-

1301(3) or that evidence be presented at trial regarding the details of the underlying felony 

“involving the use or attempted use of force, violence, or a deadly weapon.” 

This court’s opinion in State v. Brandon Dewayne Theus is instructive. Mr. Theus

was convicted of unlawful possession of a firearm after being convicted of a felony 

involving the use or attempted use of force, violence, or a deadly weapon. No. W2016-

01626-CCA-R3-CD, 2017 WL 2972231, at *8 (Tenn. Crim. App. July 12, 2017), perm. 

app. denied (Tenn. Nov. 17, 2017). As in the present case, “[t]he only evidence presented 

by the State at trial to establish that the [d]efendant had been convicted of a prior felony 

involving the attempted use of force, violence, or a deadly weapon was the certified 

judgment of conviction” for facilitation of first degree murder. Id. The defendant argued 

that facilitation of first degree murder was “not a ‘felony involving the . . . attempted use 

of force, violence, or a deadly weapon.’” Id. (citing Tenn. Code Ann. § 39-17-

 

2 The amended 2018 “crime of violence” statute reads, “‘Crime of violence’ includes any degree 

of murder, voluntary manslaughter, aggravated rape, rape, rape of a child, especially aggravated rape of a 

child, aggravated sexual battery, especially aggravated robbery, aggravated robbery, burglary, aggravated 

burglary, especially aggravated burglary, aggravated assault, kidnapping, aggravated kidnapping, 

especially aggravated kidnapping, carjacking, trafficking for commercial sex act, especially aggravated 

sexual exploitation, felony child abuse, and aggravated child abuse[.]” Tenn. Code Ann. § 39-17-1301(3) 

(2018).
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1307(b)(1)(A) (2015)). This court stated that, “[w]hen a statutory definition provides that 

it ‘includes’ specific items, our supreme court has held that the ‘enumerated items are 

illustrative, not exclusive.’” Id. (quoting State v. Marshall, 319 S.W.3d 558, 561 (Tenn. 

2010)). While we noted that the facilitation statute itself “[did] not include an element of 

violence, force, or the use of a deadly weapon[,]” we concluded that the underlying felony 

of first degree murder was “clearly a violent felony.” Id. Thus, we held that the judgment 

of conviction for facilitation of first degree murder was alone sufficient evidence to support 

the defendant’s conviction for unlawful possession of a firearm after being convicted of a 

felony involving the use or attempted use of force, violence, or a deadly weapon. Id.

In the same way, common sense dictates that if burglary is a crime involving 

violence, see Tennessee Code Annotated section 39-17-1301(3) (2017), aggravated 

burglary is also a crime involving violence. Aggravated burglary is “burglary of a 

habitation as defined in §§ 39-14-401 and 39-14-402.” Tenn. Code Ann. § 39-14-403(a) 

(2017).3 Therefore, we conclude that it was not error for the trial court to instruct the jury 

that any class of burglary was a “crime of violence.” But see State v. Edward Dean, No. 

W2018-01363-CCA-R3-CD, 2020 WL 1899612, at *14 (Tenn. Crim. App. April 17, 2020)

(overturning the defendant’s conviction for unlawful possession of a firearm, with a 

predicate felony of reckless endangerment with a deadly weapon, because “[r]eckless 

endangerment with a deadly weapon is not specifically included in the list of enumerated 

offenses that meet the definition of a ‘crime of violence’ in Tennessee Code Annotated 

section 3[9]-17-1301(3)” and because “the State failed to present any evidence from which 

the jury could have concluded that the [d]efendant’s reckless endangerment with a deadly 

weapon conviction was a felony conviction for a crime of violence, an essential element 

for the [d]efendant to be convicted of a violation of Tennessee Code Annotated section 39-

17-1307 as charged in his indictment”).

 

3 A person commits burglary who, without the effective consent of the property owner:

(1) Enters a building other than a habitation (or any portion thereof) not open to the public, 

with intent to commit a felony, theft or assault;

(2) Remains concealed, with the intent to commit a felony, theft or assault, in a building;

(3) Enters a building and commits or attempts to commit a felony, theft or assault; or

(4) Enters any freight or passenger car, automobile, truck, trailer, boat, airplane or other

motor vehicle with intent to commit a felony, theft or assault or commits or attempts to 

commit a felony, theft or assault.

Tenn. Code Ann. § 39-14-402(a) (2017).
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Sufficiency of the Evidence

Defendant argues that the State failed to produce any evidence that his prior felony 

conviction for aggravated burglary involved “the use or attempted use of force, violence, 

or a deadly weapon[.]” Tenn. Code Ann. § 39-17-1307(b)(1)(A) (2017). He asserts that, 

therefore, the evidence was insufficient to support his conviction for unlawful possession 

of a firearm.

The State responds that aggravated burglary is inherently “a crime that involves the 

use of force or violence.” Therefore, the State contends, the prosecution “was not required 

to present any additional proof regarding the circumstances of [Defendant]’s prior 

conviction.”

Our standard of review for a sufficiency of the evidence challenge is “whether, after 

viewing the evidence in the light most favorable to the prosecution, any rational trier of 

fact could have found the essential elements of the crime beyond a reasonable doubt.” 

Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); see also Tenn. R. 

App. P. 13(e). Questions of fact, the credibility of witnesses, and weight of the evidence 

are resolved by the fact finder. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This 

court will not reweigh the evidence. Id. Our standard of review “is the same whether the 

conviction is based upon direct or circumstantial evidence.” State v. Dorantes, 331 S.W.3d 

370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)) 

(internal quotation marks omitted).

A guilty verdict removes the presumption of innocence, replacing it with a 

presumption of guilt. Bland, 958 S.W.2d at 659; State v. Tuggle, 639 S.W.2d 913, 914 

(Tenn. 1982). The defendant bears the burden of proving why the evidence was 

insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle, 639 S.W.2d at 

914. On appeal, the “State must be afforded the strongest legitimate view of the evidence 

and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221 S.W.3d 

514, 521 (Tenn. 2007). 

We have previously explained the pertinent portions of the unlawful possession of 

a firearm statute and the “crime of violence” definition. As we concluded above, the 

inclusion of “burglary” in the 2017 “crime of violence” definition necessarily included 

aggravated burglary. Thus, the State was not required to introduce any additional proof 

regarding the details of Defendant’s prior aggravated burglary conviction. This issue is 

without merit.
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Conclusion

For the foregoing reasons, we affirm the judgment of the trial court. 

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ROBERT L. HOLLOWAY, JR., JUDGE