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Tennessee Code Title 40. Criminal Procedure § 40-35-121

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(a) As used in this section, unless the context otherwise requires:

(1) “Criminal gang” means a formal or informal ongoing organization, association or group consisting of three (3) or more persons that has:

(A) As one (1) of its activities the commission of criminal acts;  and

(B) Two (2) or more members who, individually or collectively, engage in or have engaged in a pattern of criminal gang activity;

(2) “Criminal gang member” is a person who is a member of a criminal gang, as defined in subdivision (a)(1), who meets two (2) or more of the following criteria:

(A) Admits to criminal gang involvement;

(B) Is identified as a criminal gang member by a parent or guardian;

(C) Is identified as a criminal gang member by a documented reliable informant;

(D) Resides in or frequents a particular criminal gang's area, adopts their style or dress, their use of hand signs or their tattoos and associates with known criminal gang members;

(E) Is identified as a criminal gang member by an informant of previously untested reliability and the identification is corroborated by independent information;

(F) Has been arrested more than once in the company of identified criminal gang members for offenses that are consistent with usual criminal gang activity;  or

(G) Is identified as a criminal gang member by physical evidence such as photographs or other documentation;

(3) “Criminal gang offense” means:

(A) A criminal offense committed prior to July 1, 2013 that:

(i) During the perpetration of which the defendant knowingly causes, or threatens to cause, death or bodily injury to another person or persons and specifically includes rape of a child, aggravated rape and rape;  or

(ii) Results, or was intended to result, in the defendant's receiving income, benefit, property, money or anything of value from the commission of any aggravated burglary, or from the illegal sale, delivery, or manufacture of a controlled substance, controlled substance analogue, or firearm;  or

(B) The commission or attempted commission, facilitation of, solicitation of, or conspiracy to commit any of the following offenses on or after July 1, 2013:

(i) First degree murder, as defined in § 39-13-202;

(ii) Second degree murder, as defined in § 39-13-210;

(iii) Voluntary manslaughter, as defined in § 39-13-211;

(iv) Assault, as defined in § 39-13-101;

(v) Aggravated assault, as defined in § 39-13-102;

(vi) Kidnapping, as defined in § 39-13-303;

(vii) Aggravated kidnapping, as defined in § 39-13-304;

(viii) Especially aggravated kidnapping, as defined in § 39-13-305;

(ix) Robbery, as defined in § 39-13-401;

(x) Aggravated robbery, as defined in § 39-13-402;

(xi) Especially aggravated robbery, as defined in § 39-13-403;

(xii) Carjacking, as defined in § 39-13-404;

(xiii) Rape, as defined in § 39-13-503;

(xiv) Aggravated rape, as defined in § 39-13-502;

(xv) Rape of a child, as defined in § 39-13-522;

(xvi) Aggravated burglary, as defined in § 39-14-403;

(xvii) Especially aggravated burglary, as defined in § 39-14-404;

(xviii) Aggravated criminal trespass, as defined in § 39-14-406;

(xix) Coercion of witness, as defined in § 39-16-507;

(xx) Retaliation for past action, as defined in § 39-16-510;

(xxi) Riot, as defined in § 39-17-302;

(xxii) Aggravated riot, as defined in § 39-17-303;

(xxiii) Inciting to riot, as defined in § 39-17-304;

(xxiv) The illegal sale, delivery or manufacture of a controlled substance or controlled substance analogue, as defined in §§ 39-17-417 and 39-17-454;

(xxv) Possession of a controlled substance or controlled substance analogue with intent to sell, deliver, or manufacture, as defined in § 39-17-417(a)(4) and § 39-17-454;

(xxvi) Unlawful carrying or possession of a weapon, as defined in § 39-17-1307;

(xxvii) Trafficking for commercial sex acts, as defined in § 39-13-309.

(4)(A) “Pattern of criminal gang activity” means prior convictions for the commission or attempted commission of, facilitation of, solicitation of, or conspiracy to commit:

(i) Two (2) or more criminal gang offenses that are classified as felonies;  or

(ii) Three (3) or more criminal gang offenses that are classified as misdemeanors;  or

(iii) One (1) or more criminal gang offenses that are classified as felonies and two (2) or more criminal gang offenses that are classified as misdemeanors;  and

(iv) The criminal gang offenses are committed on separate occasions;  and

(v) The criminal gang offenses are committed within a five-year period;

(B)(i) As used in this subsection (a), “prior conviction” means a criminal gang offense for which a criminal gang member was convicted prior to the commission of the instant criminal gang offense by the defendant and includes convictions occurring prior to July 1, 1997;

(ii) “Prior conviction” includes convictions under the laws of any other state, government or country that, if committed in this state, would have constituted a criminal gang offense.  In the event that a conviction from a jurisdiction other than Tennessee is not specifically named the same as a criminal gang offense, the elements of the offense in the other jurisdiction shall be used by the Tennessee court to determine if the offense is a criminal gang offense;

(iii) Convictions for multiple criminal gang offenses committed as part of a single course of conduct within twenty-four (24) hours are not committed on “separate occasions.”  However, acts that constitute criminal gang offenses under subdivision (a)(3)(A) shall not be construed to be a single course of conduct.

(b) A criminal gang offense committed by a defendant who was a criminal gang member at the time of the offense shall be punished one (1) classification higher than the classification established by the specific statute creating the offense committed.

(c) A criminal gang offense committed by a defendant who was not a criminal gang member at the time of the offense but who committed the offense for the purpose of and with the intent to fulfill an initiation or other requirement for joining a criminal gang as defined in subdivision (a)(1) shall be punished one (1) classification higher than the classification established by the specific statute creating the offense committed.

(d) If the criminal gang offense subject to enhancement under subsection (b) or (c) is a Class A felony, the presumptive sentence for the offense shall be the maximum sentence within the range from which the defendant is to be sentenced.

(e) A criminal gang offense committed by a defendant who was a criminal gang member at the time of the offense shall be punished two (2) classifications higher than the classification established by the specific statute creating the offense committed if the criminal gang member was also a leader or organizer of the criminal gang at the time the offense was committed.

(f) If the criminal gang offense subject to enhancement under subsection (e) is a Class A or B felony, the criminal gang member shall be sentenced as a Class A felon and the presumptive sentence for the offense shall be the maximum sentence within the range from which the defendant is to be sentenced.

(g) If the defendant is charged with a criminal gang offense and the district attorney general intends to seek enhancement of the punishment under subsection (b), (c) or (e), the indictment, in a separate count, shall specify, charge and give notice of the subsection under which enhancement is alleged applicable and of the required prior convictions constituting the gang's pattern of criminal gang activity.

(h)(1) If the defendant is convicted of the underlying criminal gang offense, the jury shall then separately consider whether the defendant was at the time of the offense:

(A) A criminal gang member;

(B) A criminal gang member and a leader or organizer of the gang;  or

(C) Not a criminal gang member but committed the offense for the purpose of joining a criminal gang.

(2) If the jury convicts the defendant under subdivision (h)(1)(A), (h)(1)(B) or (h)(1)(C), the court shall pronounce judgment and sentence the defendant as provided in this section.

(i) For purposes of establishing a “pattern of criminal gang activity” the following offenses may be considered:

(1) Criminal gang offenses, as defined by subdivision (a)(3)(A), committed prior to July 1, 2013;  and

(2) Criminal gang offenses, as defined by subdivision (a)(3)(B), committed on or after July 1, 2013.

Cite this article: FindLaw.com - Tennessee Code Title 40. Criminal Procedure § 40-35-121 - last updated January 01, 2020 | https://codes.findlaw.com/tn/title-40-criminal-procedure/tn-code-sect-40-35-121.html


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