Rashe Moore v. State of Tennessee , 485 S.W.3d 411 ( 2016 )


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  •                   IN THE SUPREME COURT OF TENNESSEE
    AT JACKSON
    November 4, 2015 Session
    RASHE MOORE v. STATE OF TENNESSEE
    Appeal by Permission from the Court of Criminal Appeals
    Criminal Court for Shelby County
    Nos. 0006306, 0006313-0006317    W. Otis Higgs, Jr., Judge
    No. W2013-00674-SC-R11-PC – Filed March 16, 2016
    In this post-conviction case, we clarify the appropriate prejudice analysis for ineffective
    assistance of counsel claims arising from the failure to properly request jury instructions
    on lesser-included offenses where, as here, the jury was given no option to convict of any
    lesser-included offense. The jury convicted the petitioner as charged of one count of
    aggravated burglary and multiple counts of aggravated rape, especially aggravated
    kidnapping, and aggravated robbery in connection with a home invasion. On direct
    appeal, the Court of Criminal Appeals affirmed the convictions and declined to address
    the trial court’s failure to instruct the jury on lesser-included offenses because the
    petitioner’s trial counsel did not request the instructions in writing as required by statute.
    Thereafter, the post-conviction court denied relief. On appeal, a majority of the Court of
    Criminal Appeals granted a new trial on the especially aggravated kidnapping charges
    based on ineffective assistance of counsel. We hold that the Court of Criminal Appeals
    erred in concluding that the petitioner was prejudiced by his trial counsel’s failure to
    request a jury instruction on aggravated kidnapping as a lesser-included offense of
    especially aggravated kidnapping. We conclude that no reasonable probability exists that
    a properly instructed jury would have convicted the petitioner of any of his asserted
    lesser-included offenses instead of the charged offenses. Because the petitioner suffered
    no prejudice, he did not receive ineffective assistance of counsel as to any of his
    convictions. We reverse the Court of Criminal Appeals’ judgment granting a new trial on
    the especially aggravated kidnapping charges and reinstate the post-conviction court’s
    judgment denying relief on these convictions. We further hold that the Court of Criminal
    Appeals properly affirmed the denial of post-conviction relief on the petitioner’s other
    convictions.
    Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal
    Appeals Affirmed in Part, Reversed in Part
    SHARON G. LEE, C.J., delivered the opinion of the Court, in which CORNELIA A. CLARK,
    JEFFREY S. BIVINS, and HOLLY KIRBY, JJ., joined.
    Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor
    General; Rachel E. Willis, Senior Counsel, Criminal Justice Division; Amy P. Weirich,
    District Attorney General; David Zak, Assistant District Attorney General; and Charles
    Summers, Assistant District Attorney General, for the appellant, State of Tennessee.
    Charles S. Mitchell, Memphis, Tennessee, for the appellee, Rashe Moore.
    OPINION
    I.
    On the evening of July 21, 1999, Albert Smith was at his house in Memphis,
    Tennessee, with his friend Deana T. and his eight-year-old son. An older man, later
    identified as Genore Dancy,1 forced his way into the house. A younger man, later
    identified as the petitioner, Rashe Moore, entered the house a few minutes later. Both
    Mr. Moore and Mr. Dancy were armed with handguns during the home invasion that
    lasted approximately two hours. They took personal items from Mr. Smith and Deana T.
    at gunpoint. While Mr. Dancy continued to hold the victims at gunpoint, Mr. Moore
    ransacked the house.
    A short time later, Mr. Smith’s roommate arrived at the house with Shauntel K.
    and Latoya K. They were forced inside at gunpoint. Mr. Moore and Mr. Dancy took
    various items of personal property from the six victims and then made them strip down to
    their underwear and lie on the floor of the den.
    Mr. Dancy ordered Latoya K. into another room while Mr. Moore held the other
    victims at gunpoint. Mr. Dancy forced his penis into Latoya K.’s mouth at gunpoint. Mr.
    Dancy and Latoya K. then returned to the den. Mr. Moore ordered Shauntel K. into
    another room while Mr. Dancy held the other victims at gunpoint. Mr. Moore forced his
    penis into Shauntel K.’s mouth at gunpoint. When a pager sounded, Mr. Dancy shot it.
    Mr. Moore and Shauntel K. then returned to the den. Mr. Moore and Mr. Dancy ordered
    the six victims into the kitchen, covered them with a sheet as they were lying on the floor,
    1
    Genore Dancy was convicted in a separate trial of four counts (later merged into two counts) of
    aggravated rape, five counts of aggravated robbery, seven counts of especially aggravated kidnapping,
    and one count of aggravated burglary. State v. Dancy, No. W2001-02451-CCA-R3-CD, 
    2003 WL 402788
    , at *1 (Tenn. Crim. App. Feb. 18, 2003). He was sentenced to 150 years. 
    Id. At Mr.
    Dancy’s
    trial, two victims, who also testified at Mr. Moore’s trial, identified Mr. Dancy as the first man to enter
    the house. 
    Id. Although Mr.
    Dancy was not identified by name at Mr. Moore’s trial, we use his name in
    this opinion for clarity.
    2
    and bound their hands and feet with duct tape. Mr. Dancy then ordered Deana T. into
    another room, where he forced his penis into her vagina.
    While the victims were lying on the kitchen floor, a friend of Mr. Smith’s
    roommate arrived at the house and was ordered inside at gunpoint. Mr. Moore and Mr.
    Dancy pulled the man’s shirt over his head, took his keys and money, pulled his pants
    down to his ankles, bound his hands, and put him under the sheet with the other six
    victims.
    Additional intruders entered the house. Four or five intruders took Deana T. from
    the kitchen with a pillowcase on her head. One intruder forced his penis into her mouth,
    and then another intruder repeated this act. The intruders removed the duct tape from her
    ankles and then vaginally raped her. When Mr. Moore, Mr. Dancy, and the other
    intruders left, they took with them the victims’ personal property and various items from
    Mr. Smith’s house.
    Deana T., Mr. Smith, and Shauntel K. identified Mr. Moore in a photo lineup. At
    the trial in February 2002, four victims—Deana T., Mr. Smith, Shauntel K., and Latoya
    K.—identified Mr. Moore as the younger man who, armed with a handgun, entered the
    house, took valuable items from the victims, bound seven victims and forced them to lie
    under a sheet on the kitchen floor, raped Shauntel K. at gunpoint, and held a gun on the
    victims while Mr. Dancy raped Latoya K. and Deana T. and while other intruders then
    raped Deana T. Mr. Smith and Deana T. testified that Mr. Moore appeared to be a
    willing participant in the events of July 21, 1999.
    Mr. Moore presented an alibi defense. He testified that he was at a club with his
    girlfriend on the evening of July 21, 1999, and was not involved in the home invasion.
    He did not deny that any of the events occurred, just that he was not present.
    At the close of proof, the trial court announced its decision not to instruct on any
    lesser-included offenses because Mr. Moore did not contest that the offenses occurred but
    denied his involvement, testifying that he was elsewhere at the time of the home invasion.
    Mr. Moore’s attorney then orally requested the trial court to instruct the jury on
    facilitation as a lesser-included offense for the aggravated rapes of Latoya K. and Deana
    T. The trial court denied the request, explaining that no factual basis supported a jury
    instruction for facilitation, or any other lesser-included offense, based on the evidence.
    The trial court stated, “I think it’s an all or nothing defense that has been presented.” The
    jury convicted Mr. Moore as charged of six counts (later merged into three counts) of
    aggravated rape, five counts of aggravated robbery, seven counts of especially aggravated
    kidnapping, and one count of aggravated burglary. Mr. Moore received an effective
    sentence of ninety-nine years.
    3
    The Court of Criminal Appeals affirmed the judgment of the trial court. State v.
    Moore, No. W2002-01195-CCA-R3-CD, 
    2003 WL 22888881
    , at *11 (Tenn. Crim. App.
    Dec. 3, 2003). Mr. Moore argued, among other things, that the trial court erred in failing
    to instruct the jury on the applicable lesser-included offenses, including facilitation for
    the aggravated rape charges regarding Latoya K. and Deana T. and false imprisonment
    for the especially aggravated kidnapping charges. 
    Id. at *8.
    The Court of Criminal
    Appeals held that Mr. Moore waived this issue by failing to make a written request for
    jury instructions on the lesser-included offenses. 
    Id. The Court
    of Criminal Appeals
    pointed to a 2002 statutory amendment providing that, unless a defendant makes a written
    request for lesser-included offense instructions, a trial judge’s failure to instruct the jury
    on lesser-included offenses cannot be presented as a ground for relief on appeal. 
    Id. (citing Tenn.
    Code Ann. § 40-18-110(c) (Supp. 2002)). The Court of Criminal Appeals
    did not review the issue for plain error. See State v. Page, 
    184 S.W.3d 223
    , 230 (Tenn.
    2006) (“Although section 40-18-110(c) precludes a defendant from raising the trial
    court’s failure to instruct on lesser-included offense instructions not requested in writing,
    appellate courts are not precluded from sua sponte reviewing this issue under the plain
    error doctrine.”). We denied Mr. Moore’s application for permission to appeal.
    Thereafter, Mr. Moore filed a petition for post-conviction relief.                 The
    post-conviction evidentiary hearing focused on his allegation that trial counsel was
    ineffective for failing to properly request jury instructions on lesser-included offenses.
    Trial counsel testified that Mr. Moore consistently maintained that he was at a club
    with his girlfriend on July 21, 1999, and not at Mr. Smith’s house. Mr. Moore claimed at
    trial that the victims had misidentified him. When the case was tried, trial counsel was
    not aware of the amendment to Tennessee Code Annotated section 40-18-110, requiring
    requests for jury instructions on lesser-included offenses to be in writing. See Tenn.
    Code Ann. § 40-18-110(a) (Supp. 2002). The amendment requiring written requests
    went into effect on January 1, 2002. See Act of May 24, 2001, ch. 338, §§ 1-2, 2001
    Tenn. Pub. Acts 708, 709 (codified as amended at Tenn. Code Ann. § 40-18-110 (2012)).
    The trial began just over a month later on February 11, 2002. The prior version of the
    statute had placed a duty on trial judges to instruct on all lesser-included offenses
    supported by the evidence, whether or not requested by the defendant. See 
    Page, 184 S.W.3d at 229
    (citing Strader v. State, 
    362 S.W.2d 224
    , 228 (Tenn. 1962)).
    Trial counsel doubted that the outcome at trial would have been different had the
    trial judge instructed the jury on any lesser-included offenses. Trial counsel testified that
    “in reality the jury was going to believe [Mr. Moore] was there and participated in these
    things, or they weren’t.” In trial counsel’s opinion, the case was not about
    lesser-included offenses. On cross-examination, however, trial counsel clarified that he
    thought the record was adequate for an appellate court to review the trial judge’s refusal
    to instruct on any lesser-included offenses. Explaining that this trial judge routinely
    4
    refused to instruct on lesser-included offenses when the evidence supported the charged
    offense, trial counsel gave this example of what the trial judge might say: “You want the
    jury to believe that this witness who said she was raped at gunpoint, that somehow she
    wasn’t raped at gunpoint, when that wasn’t your defense? No, that would be ludicrous,
    we are not charging it.” Then, attempting to justify his failure to request instructions on
    lesser-included offenses, trial counsel added, “So you didn’t argue. I made my record
    and I didn’t argue.” Trial counsel knew that appellate courts had sent cases back to this
    trial judge because of instructional error under the prior version of Tennessee Code
    Annotated section 40-18-110(a). See, e.g., State v. Cox, No. W2000-02238-CCA-R3-
    CD, 
    2001 WL 1584133
    , at *4 (Tenn. Crim. App. Nov. 29, 2001) (holding that this trial
    judge committed reversible error by failing to instruct on theft as a lesser-included
    offense of robbery); State v. Hughes, No. W1999-00360-CCA-R3-CD, 
    2001 WL 91736
    ,
    at *13-14 (Tenn. Crim. App. Jan. 26, 2001) (holding that this trial judge’s failure to
    instruct on attempted voluntary manslaughter as a lesser-included offense of attempted
    second degree murder was plain error and not harmless beyond a reasonable doubt).
    Trial counsel had raised the lesser-included offense issue in the motion for new trial,
    alleging that “the Court erred by failing to charge lesser[-]included offenses, where the
    evidence adduced at trial was such that lesser[-]included offense instructions were
    necessary to a fair trial[.]” Because trial counsel was not aware of the amendment to
    Tennessee Code Annotated section 40-18-110, he mistakenly thought that Mr. Moore
    could allege trial court error based on the omission of lesser-included offense instructions
    that were not requested in writing.
    The post-conviction court ruled that the trial court had denied the request for jury
    instructions on lesser-included offenses on its merits, not because trial counsel had failed
    to make a written request. The post-conviction court stated, “There is additionally no
    evidence to suggest that the trial court would have granted [Mr. Moore’s] motion for any
    additional lesser[-]included offenses had [trial counsel] filed a written motion.” The
    post-conviction court found that the lesser-included offense instructions were irrelevant
    to the defense presented by Mr. Moore. The post-conviction court concluded that Mr.
    Moore failed to show that, but for trial counsel’s failure to make a written request for jury
    instructions on lesser-included offenses, the outcome of his case would have been
    different.
    The Court of Criminal Appeals reversed the post-conviction court’s judgment on
    Mr. Moore’s convictions for especially aggravated kidnapping, but affirmed the judgment
    in all other respects. Moore v. State, No. W2013-00674-CCA-R3-PC, 
    2014 WL 8772276
    , at *13 (Tenn. Crim. App. Apr. 22, 2014). In granting Mr. Moore a new trial on
    the especially aggravated kidnapping charges, the Court of Criminal Appeals reasoned
    that “trial counsel’s failure to file a written motion requesting instructions prejudiced
    [Mr. Moore] because if the written motion had been filed, even if it was denied, [the
    Court of Criminal Appeals] would have reviewed the issue on the merits on direct appeal
    5
    and concluded that the trial court’s refusal to instruct the jury on aggravated kidnapping
    was reversible error.” 
    Id. at *10,
    *13. Concurring in part and dissenting in part, Judge
    Roger Page agreed with the majority except as to granting a new trial for the especially
    aggravated kidnapping charges. 
    Id. at *13
    (Page, J., concurring in part and dissenting in
    part). Judge Page determined that, based on the evidence at trial, the trial court’s failure
    to instruct the jury on aggravated kidnapping was harmless beyond a reasonable doubt,
    and Mr. Moore therefore suffered no prejudice on his ineffective assistance of counsel
    claim regarding the convictions for especially aggravated kidnapping. 
    Id. The State
    sought permission to appeal the Court of Criminal Appeals’ decision
    overturning Mr. Moore’s especially aggravated kidnapping convictions. Mr. Moore
    sought permission to appeal the Court of Criminal Appeals’ decision affirming the denial
    of post-conviction relief on the rest of his convictions. We granted the parties’
    applications to clarify the appropriate prejudice analysis for ineffective assistance of
    counsel claims arising from the failure to properly request jury instructions on
    lesser-included offenses where, as here, the jury was given no option to convict of any
    lesser-included offense.
    II.
    A.
    The Sixth Amendment to the United States Constitution and article I, section 9 of
    the Tennessee Constitution guarantee individuals the right to effective assistance of
    counsel in criminal proceedings. See Strickland v. Washington, 
    466 U.S. 668
    , 686 (1984)
    (citing McMann v. Richardson, 
    397 U.S. 759
    , 771 n.14 (1970)); Vaughn v. State, 
    202 S.W.3d 106
    , 116 (Tenn. 2006) (citing State v. Burns, 
    6 S.W.3d 453
    , 461 (Tenn. 1999);
    Baxter v. Rose, 
    523 S.W.2d 930
    , 936 (Tenn. 1975)). The Post-Conviction Procedure Act,
    see Tenn. Code Ann. §§ 40-30-101 to -122 (2012), provides for relief when a conviction
    or sentence is void or voidable because of the abridgment of a right guaranteed by the
    United States Constitution or the Tennessee Constitution. 
    Id. § 40-30-103.
    The
    deprivation of effective assistance of counsel is a constitutional claim cognizable under
    the Post-Conviction Procedure Act. Mobley v. State, 
    397 S.W.3d 70
    , 79-80 (Tenn. 2013)
    (citing Pylant v. State, 
    263 S.W.3d 854
    , 868 (Tenn. 2008)).
    To prevail on a claim of ineffective assistance of counsel, a petitioner must
    establish both that counsel’s performance was deficient and that counsel’s deficiency
    prejudiced the defense. 
    Strickland, 466 U.S. at 687
    ; Goad v. State, 
    938 S.W.2d 363
    , 369
    (Tenn. 1996) (citing 
    Strickland, 466 U.S. at 687
    ; Overton v. State, 
    874 S.W.2d 6
    , 11
    (Tenn. 1994); Butler v. State, 
    789 S.W.2d 898
    , 899 (Tenn. 1990)). If either the
    performance or prejudice prong of the Strickland test is not met, then a court need not
    consider the other. 
    Goad, 938 S.W.2d at 370
    (citing 
    Strickland, 466 U.S. at 697
    ).
    6
    A claim of ineffective assistance of counsel presents a mixed question of law and
    fact. Fields v. State, 
    40 S.W.3d 450
    , 458 (Tenn. 2001) (citing 
    Burns, 6 S.W.3d at 461
    ).
    A post-conviction petitioner must prove the allegations of fact by clear and convincing
    evidence. Tenn. Code Ann. § 40-30-110(f). A post-conviction court’s factual findings
    are conclusive on appeal unless the record preponderates against them. 
    Fields, 40 S.W.3d at 456
    (citing Henley v. State, 
    960 S.W.2d 572
    , 579 (Tenn. 1997); Tidwell v.
    State, 
    922 S.W.2d 497
    , 500 (Tenn. 1996)); see also Tenn. R. App. P. 13(d). A
    post-conviction court’s conclusions of law—such as whether counsel’s performance was
    deficient and whether that deficiency was prejudicial—are reviewed under a purely de
    novo standard with no presumption of correctness given to the trial court’s conclusions.
    
    Fields, 40 S.W.3d at 458
    .
    B.
    In this case, the alleged ineffective assistance arises from trial counsel’s failure to
    properly request jury instructions on lesser-included offenses. The first question we
    address is whether trial counsel’s failure to make a written request for lesser-included
    offense instructions constitutes deficient performance.            To establish deficient
    performance, a petitioner must demonstrate “that counsel’s representation fell below an
    objective standard of reasonableness.” 
    Strickland, 466 U.S. at 687
    -88. Counsel’s
    performance is not deficient if the advice given or the services rendered “are within the
    range of competence demanded of attorneys in criminal cases.” 
    Baxter, 523 S.W.2d at 936
    ; see also 
    Strickland, 466 U.S. at 687
    (stating that the “proper standard for attorney
    performance is that of reasonably effective assistance”). Strategic decisions of counsel
    are given deference but only when such choices are informed ones based upon adequate
    preparation. 
    Goad, 938 S.W.2d at 369
    (citing Hellard v. State, 
    629 S.W.2d 4
    , 9 (Tenn.
    1982); Cooper v. State, 
    847 S.W.2d 521
    , 528 (Tenn. Crim. App. 1992)).
    The State conceded that trial counsel’s lack of knowledge regarding the necessity
    of making a written request for lesser-included offense instructions was deficient.
    Moore, 
    2014 WL 8772276
    , at *4. Failing to request lesser-included offense instructions
    will not constitute deficient performance, however, if the decision was a matter of
    strategy. See 
    Goad, 938 S.W.2d at 369
    . In this case, trial counsel had a two-part
    strategy: (1) at trial, present an alibi defense; and (2) in the motion for new trial, allege
    trial court error based on the failure to instruct on any lesser-included offenses. Choosing
    not to request lesser-included offense instructions appears to be consistent with an all or
    nothing defense based on Mr. Moore’s alleged alibi. However, this was only the first part
    of trial counsel’s strategy. In making our deficient performance inquiry, we also must
    evaluate the second part of trial counsel’s strategy.
    Notwithstanding the alibi defense, Mr. Moore had a constitutional right to
    lesser-included offense instructions warranted by the proof. See State v. Allen, 
    69 S.W.3d 7
    181, 188 (Tenn. 2002) (“The evidence, not the theories of the parties, controls whether an
    instruction is required.”); State v. Ely, 
    48 S.W.3d 710
    , 726-27 (Tenn. 2001) (holding that
    a trial court’s obligation to instruct on all lesser-included offenses, when supported by the
    evidence, derived not only from statute, but more importantly from article I, section 6 of
    the Tennessee Constitution).2 Trial counsel mistakenly thought that Tennessee Code
    Annotated section 40-18-110 still required the trial court to give the jury these
    lesser-included offense instructions, whether or not requested in writing by Mr. Moore.
    See Tenn. Code Ann. § 40-18-110(a) (1997) (“It is the duty of all judges charging juries
    in cases of criminal prosecutions for any felony wherein two (2) or more grades or
    classes of offense may be included in the indictment, to charge the jury as to all of the
    law of each offense included in the indictment, without any request on the part of the
    defendant to do so.”). Trial counsel did not know about the statute’s amendment,
    effective approximately one month prior to Mr. Moore’s trial, requiring a written request
    for lesser-included offense instructions. See 
    id. § 40-18-110(a)
    (Supp. 2002) (“When
    requested by a party in writing prior to the trial judge’s instructions to the jury in a
    criminal case, the trial judge shall instruct the jury as to the law of each offense
    specifically identified in the request that is a lesser[-]included offense of the offense
    charged in the indictment or presentment.”). In addition, trial counsel was not aware of
    the amendment requiring a written request to avoid waiver of the issue. See 
    id. § 40-18-110(c)
    (“Notwithstanding any other provision of law to the contrary, when the
    defendant fails to request the instruction of a lesser[-]included offense as required by this
    section, such instruction is waived.”). Finally, because of a lack of knowledge about the
    amendment, trial counsel improperly presented the lesser-included offense instruction
    issue in the motion for new trial. See 
    id. (“Absent a
    written request, the failure of a trial
    judge to instruct the jury on any lesser[-]included offense may not be presented as a
    ground for relief either in a motion for a new trial or on appeal.”).
    Trial counsel’s decision to forego requesting instructions on any lesser-included
    offenses, except facilitation, was not an informed choice based upon adequate
    preparation. See 
    Goad, 938 S.W.2d at 369
    (citing 
    Hellard, 629 S.W.2d at 9
    ; 
    Cooper, 847 S.W.2d at 528
    ) (stating that “deference to matters of strategy and tactical choices applies
    only if the choices are informed ones based upon adequate preparation”). We therefore
    conclude that trial counsel performed deficiently by failing to properly request jury
    instructions on lesser-included offenses.
    C.
    Having determined that trial counsel’s performance was deficient, the second
    question is whether this deficiency resulted in prejudice. To establish prejudice, a
    2
    Article I, section 6 provides in pertinent part that “the right of trial by jury shall remain
    inviolate[.]” Tenn. Const. art. I, § 6.
    8
    petitioner must show “a reasonable probability that, but for counsel’s unprofessional
    errors, the result of the proceeding would have been different.” 
    Strickland, 466 U.S. at 694
    ; 
    Goad, 938 S.W.2d at 370
    . “A reasonable probability is a probability sufficient to
    undermine confidence in the outcome.” 
    Strickland, 466 U.S. at 694
    . For ineffective
    assistance of counsel claims arising from the failure to properly request lesser-included
    offense instructions, the prejudice inquiry assesses whether a reasonable probability
    exists that a properly instructed jury would have convicted the petitioner of the
    lesser-included offense instead of the charged offense. 
    Pylant, 263 S.W.3d at 869
    (citing
    State v. Zimmerman, 
    823 S.W.2d 220
    , 224 (Tenn. Crim. App. 1991)). The plurality
    opinion in Bryant v. State, 
    460 S.W.3d 513
    , 527-28 (Tenn. 2015), incorrectly referred to
    what a reasonable jury “could” have done rather than “would” have done. We overrule
    any language in Bryant that suggests that the proper inquiry for assessing prejudice is
    whether a jury “could” have convicted the petitioner of the lesser-included offense
    instead of the charged offense.3
    In assessing whether the jury would have convicted a petitioner of a
    lesser-included offense instead of the charged offense, the analytical framework for the
    prejudice inquiry at post-conviction mirrors the harmless error inquiry on direct appeal.
    See State v. Richmond, 
    90 S.W.3d 648
    , 662 (Tenn. 2002) (“[I]n deciding whether it was
    harmless beyond a reasonable doubt not to charge a lesser-included offense, the
    reviewing court must determine whether a reasonable jury would have convicted the
    defendant of the lesser-included offense instead of the charged offense.”). In determining
    whether a reasonable jury would have convicted the defendant of the lesser-included
    offense instead of the charged offense, courts should apply either the analysis set forth in
    State v. Williams, 
    977 S.W.2d 101
    (Tenn. 1998), or that adopted in 
    Allen, 69 S.W.3d at 191
    . See State v. Locke, 
    90 S.W.3d 663
    , 675 (Tenn. 2002) (noting that harmless error is
    not limited to Williams-type cases and citing Allen as the alternative analysis). We
    previously have described the two approaches as (1) the analysis set forth in Williams and
    (2) the determination of whether the jury would have convicted the defendant of the
    lesser-included offense instead of the charged offense. State v. Banks, 
    271 S.W.3d 90
    ,
    126 (Tenn. 2008) (citing 
    Richmond, 90 S.W.3d at 662
    , and 
    Locke, 90 S.W.3d at 675
    , for
    the “second” approach). We clarify that the purpose of the harmless error inquiry is to
    assess whether the jury would have convicted the defendant of the lesser-included offense
    instead of the charged offense. This assessment of prejudice is not a separate approach.
    Rather, the assessment is made by applying either the Williams analysis or the Allen
    analysis, depending on the circumstances.
    Under the Williams analysis, where the jury convicts the defendant of a greater
    charged offense rather than an immediately lesser offense standing between omitted
    3
    The term “could” connotes a possibility, no matter how improbable; whereas, the Strickland
    prejudice prong requires a “reasonable probability that, but for counsel’s unprofessional errors, the result
    of the proceeding would have been different.” 
    Strickland, 466 U.S. at 694
    (emphasis added).
    9
    lesser-included offenses and the offense for which the defendant was convicted, any error
    from the omission of jury instructions on these other asserted lesser-included offenses is
    harmless beyond a reasonable doubt because the jury, by finding the defendant guilty of
    the greater offense to the exclusion of the immediately lesser offense, necessarily rejected
    all other lesser-included offenses.4 
    Williams, 977 S.W.2d at 106
    . When the Williams
    analysis cannot be used because the jury did not reject the immediately lesser offense, or
    was given no option to convict of any lesser-included offense, courts should apply the
    harmless error analysis adopted in 
    Allen, 69 S.W.3d at 191
    . Under the Allen analysis,
    courts “should conduct a thorough examination of the record, including the evidence
    presented at trial, the defendant’s theory of defense, and the verdict returned by the
    jury.”5 
    Id. In examining
    the evidence presented at trial, the harmless error analysis
    focuses on the distinguishing element between the greater and lesser offenses, the
    strength of the evidence of the distinguishing element, and the existence of contradicting
    evidence of the distinguishing element. See 
    id. We hereby
    adopt the Allen analysis for
    ineffective assistance of counsel claims arising from the failure to properly request jury
    instructions on lesser-included offense instructions where, as here, the jury was given no
    option to convict of any lesser-included offense.
    The lead opinion in Bryant referred to a strict approach of reviewing these
    lesser-included offense issues and suggested that this approach was rejected in all
    circumstances. See 
    Bryant, 460 S.W.3d at 527
    (describing a strict approach followed by
    two panels of the Court of Criminal Appeals as “holding that a defendant can never show
    prejudice stemming from the failure to charge a lesser-included offense when the
    defendant has been found guilty of a greater offense”). This reference to a strict approach
    has caused confusion, and we take this opportunity to resolve any unintended
    consequences of Bryant. A strict approach relying solely on the fact of the conviction for
    the charged offense would be contrary to Strickland because such reasoning, in essence,
    converts the prejudice inquiry into a sufficiency-of-the-evidence question. See Crace v.
    4
    We need not specifically define the term “immediately lesser offense” in this case because the
    jury here was given no option to convict Mr. Moore of any lesser offense. We clarify, however, that the
    term “immediately lesser offense” does not encompass facilitation of the charged offense, attempt to
    commit the charged offense, or solicitation to commit the charged offense. See Tenn. Code Ann.
    § 40-18-110(f)(2)-(4) (2012) (specifically including facilitation, attempt, and solicitation in the definition
    of lesser-included offense); 
    Burns, 6 S.W.3d at 467
    (specifically including the “inchoate offenses” of
    facilitation, attempt, and solicitation in the definition of lesser-included offense).
    5
    The “verdict returned by the jury” factor, although not material on this issue in many cases, was
    important to the analysis in Allen because the jury rejected the charged offense of aggravated robbery and
    instead convicted the defendant of the lesser-included offense of robbery. 
    Id. at 185.
    In light of the
    verdict convicting him of robbery and the controverted evidence of his intent, this Court held that the
    failure to instruct on the asserted lesser-included offense of facilitation of robbery was reversible error.
    
    Id. at 191-92.
    The “verdict returned by the jury” factor is not intended to be simply a review of the
    sufficiency of the evidence.
    10
    Herzog, 
    798 F.3d 840
    , 849, 853 (9th Cir. 2015) (reviewing a decision of the Washington
    Supreme Court and granting habeas corpus relief); Breakiron v. Horn, 
    642 F.3d 126
    , 140,
    147 (3d Cir. 2011) (reviewing a decision of the Pennsylvania Supreme Court and
    granting habeas corpus relief). A strict approach using the Williams analysis, however,
    would not be contrary to Strickland. This type of strict approach does not rely on the fact
    of the conviction for the charged offense, but instead recognizes that the analytical
    framework for the prejudice inquiry at post-conviction mirrors the harmless error inquiry
    on direct appeal and, under some circumstances, such as Williams-type cases, prejudice
    can never be proven.6 Moreover, when any error from omitting a particular
    lesser-included offense instruction is determined to be harmless beyond a reasonable
    doubt on direct appeal, whether under the Williams analysis or the Allen analysis, then
    any asserted deficiency of trial counsel based on failure to request that particular
    lesser-included offense instruction can never be prejudicial in a post-conviction
    proceeding.
    D.
    We now apply this prejudice analysis to Mr. Moore’s case. In determining
    whether a reasonable probability exists that a properly instructed jury would have
    convicted Mr. Moore of any of his asserted lesser-included offenses instead of the
    charged offenses, we conduct a thorough examination of the record, including the
    evidence presented at trial and the theory of defense. See 
    Allen, 69 S.W.3d at 191
    . The
    verdict returned by the jury does not factor into the analysis because the jury here was
    given no option to convict Mr. Moore of any lesser-included offense. Moreover, because
    the issue of any error from omitting lesser-included offense instructions was not
    addressed on direct appeal and, therefore, not determined to be harmless beyond a
    reasonable doubt, trial counsel’s failure to properly request jury instructions on
    lesser-included offenses is an appropriate issue for post-conviction review. When
    examining the evidence presented at trial, the prejudice analysis focuses on (1) the
    distinguishing element between the greater and lesser offenses, (2) the strength of the
    evidence of the distinguishing element, and (3) the existence of contradicting evidence of
    the distinguishing element. See 
    id. The Court
    of Criminal Appeals reviewed the following asserted lesser-included
    offenses of Mr. Moore’s respective convictions: (1) especially aggravated kidnapping—
    aggravated kidnapping, kidnapping, false imprisonment, and attempt; (2) aggravated
    rape—rape, aggravated sexual battery, sexual battery, and facilitation; (3) aggravated
    robbery—robbery, aggravated assault, assault, theft, attempt, and facilitation; and
    (4) aggravated burglary—burglary, aggravated criminal trespass, criminal trespass,
    6
    In this case, we need not determine the broader applicability of a strict approach because the
    jury was given no option to convict Mr. Moore of any lesser-included offense.
    11
    attempt, and facilitation. Moore, 
    2014 WL 8772276
    , at *7-12. We will address
    facilitation and attempt at the end of our analysis. We begin with the especially
    aggravated kidnapping convictions, which the Court of Criminal Appeals reversed based
    on trial counsel’s failure to make a written request for a jury instruction on aggravated
    kidnapping as a lesser-included offense. 
    Id. at *13
    .
    As relevant to the charges against Mr. Moore, especially aggravated kidnapping is
    false imprisonment “[a]ccomplished with a deadly weapon or by display of any article
    used or fashioned to lead the victim to reasonably believe it to be a deadly weapon[.]”
    Tenn. Code Ann. § 39-13-305(a)(1) (1997).                 Aggravated kidnapping is false
    imprisonment “[w]hile the defendant is in possession of a deadly weapon or threatens the
    use of a deadly weapon.” 
    Id. § 39-13-304(a)(5)
    (1997). For purposes of our analysis,
    especially aggravated kidnapping and aggravated kidnapping differ in whether the
    defendant uses a deadly weapon or merely possesses (or threatens to use) a deadly
    weapon. Overwhelming evidence showed that the perpetrators used deadly weapons by
    holding the victims at gunpoint. Mr. Moore presented an alibi theory of defense. He did
    not contest whether the perpetrators used deadly weapons, as opposed to merely
    possessing them. No reasonable probability exists that a properly instructed jury would
    have convicted Mr. Moore of aggravated kidnapping instead of especially aggravated
    kidnapping. Therefore, we hold that the Court of Criminal Appeals erred in concluding
    that prejudice resulted from trial counsel’s failure to properly request a jury instruction on
    aggravated kidnapping. Because of the overwhelming evidence supporting the deadly
    weapon element, we also hold that no prejudice resulted from trial counsel’s failure to
    properly request jury instructions on the lesser-included offenses of false imprisonment
    and kidnapping.7
    Next, we apply the prejudice analysis to the aggravated rape convictions. As
    relevant to the charges against Mr. Moore, “armed with a weapon” is the element that
    distinguishes aggravated rape from rape,8 as well as aggravated sexual battery from
    sexual battery.9 Sexual penetration, as opposed to sexual contact, is the element
    7
    See 
    id. §§ 39-13-302(a)
    (1997) (defining false imprisonment as “knowingly remov[ing] or
    confin[ing] another unlawfully so as to interfere substantially with the other’s liberty”), 39-13-303(a)
    (1997) (defining kidnapping as false imprisonment “under circumstances exposing the other person to
    substantial risk of bodily injury”).
    8
    See 
    id. §§ 39-13-502(a)(1)
    (1997) (defining aggravated rape, as relevant here, as “unlawful
    sexual penetration of a victim by the defendant or the defendant by a victim” where “[f]orce or coercion is
    used to accomplish the act and the defendant is armed with a weapon or any article used or fashioned in a
    manner to lead the victim reasonably to believe it to be a weapon”), 39-13-503(a)(1) (1997) (defining
    rape, as relevant here, as “unlawful sexual penetration of a victim by the defendant or of the defendant by
    a victim” where “[f]orce or coercion is used to accomplish the act”).
    9
    See 
    id. §§ 39-13-504(a)(1)
    (1997) (defining aggravated sexual battery, as relevant here, as
    12
    distinguishing rape from sexual battery.10 Overwhelming evidence proved that the
    victims were sexually penetrated and that the perpetrators were armed with guns. Mr.
    Moore did not challenge either of these distinguishing elements, which were not relevant
    to his alibi defense. No reasonable probability exists that a properly instructed jury
    would have convicted Mr. Moore of any of these asserted lesser-included offenses
    instead of aggravated rape. Therefore, we conclude that no prejudice resulted from trial
    counsel’s failure to properly request jury instructions on these asserted lesser-included
    offenses of aggravated rape.
    We next address the aggravated robbery convictions. As relevant to the charges
    against Mr. Moore, the use of a deadly weapon is the element that distinguishes
    aggravated robbery from robbery and theft,11 and aggravated assault from assault.12 The
    taking of property is the element distinguishing robbery from assault.13 Overwhelming
    evidence showed that the perpetrators used deadly weapons and took property from the
    victims. Mr. Moore did not contest either of these distinguishing elements, which were
    not relevant to his alibi defense. No reasonable probability exists that a properly
    instructed jury would have convicted Mr. Moore of any of these asserted lesser-included
    offenses instead of aggravated robbery. Therefore, we conclude that no prejudice
    resulted from trial counsel’s failure to properly request jury instructions on these asserted
    lesser-included offenses of aggravated robbery.
    “unlawful sexual contact with a victim by the defendant or the defendant by a victim” where “[f]orce or
    coercion is used to accomplish the act and the defendant is armed with a weapon or any article used or
    fashioned in a manner to lead the victim reasonably to believe it to be a weapon”), 39-13-505(a)(1) (1997)
    (defining sexual battery, as relevant here, as “unlawful sexual contact with a victim by the defendant or
    the defendant by a victim” where “[f]orce or coercion is used to accomplish the act”).
    10
    See 
    id. §§ 39-13-503
    (rape), 39-13-505 (sexual battery).
    11
    See 
    id. §§ 39-13-402(a)(1)
    (1997) (defining aggravated robbery, as relevant here, as robbery
    “[a]ccomplished with a deadly weapon or by display of any article used or fashioned to lead the victim to
    reasonably believe it to be a deadly weapon”), 39-13-401(a) (1997) (defining robbery as “the intentional
    or knowing theft of property from the person of another by violence or putting the person in fear”),
    39-14-103(a) (1997) (defining theft of property as “knowingly obtain[ing] or exercis[ing] control over the
    property without the owner’s effective consent” when the defendant acts “with intent to deprive the owner
    of [the] property”).
    12
    See 
    id. §§ 39-13-102(a)(1)(B)
    (1997 & Supp. 1999) (defining aggravated assault, as relevant
    here, as committing an assault when the defendant “[u]ses or displays a deadly weapon”), 39-13-101(a)(2)
    (1997) (defining assault, as relevant here, as “[i]ntentionally or knowingly caus[ing] another to reasonably
    fear imminent bodily injury”).
    13
    See 
    id. §§ 39-13-101
    (assault), 39-13-401 (robbery).
    13
    Regarding the conviction for aggravated burglary, the elements distinguishing it
    from the asserted lesser-included offenses of burglary, aggravated criminal trespass, and
    criminal trespass are (1) entry into a habitation and (2) intent to commit a felony, theft, or
    assault.14 Overwhelming evidence supported these distinguishing elements. Mr. Moore
    did not contest these distinguishing elements, and they were not part of his theory of
    defense. No reasonable probability exists that a properly instructed jury would have
    convicted Mr. Moore of any of these asserted lesser-included offenses instead of
    aggravated burglary. Therefore, we conclude that no prejudice resulted from trial
    counsel’s failure to properly request jury instructions on these asserted lesser-included
    offenses of aggravated burglary.
    We now address facilitation with respect to the convictions for aggravated rape,
    aggravated robbery, and aggravated burglary. Facilitation applies when, “knowing that
    another intends to commit a specific felony, but without the intent required for criminal
    responsibility under § 39-11-402(2), the [defendant] knowingly furnishes substantial
    assistance in the commission of the felony.” 
    Id. § 39-11-403(a)
    (1997). Specifically, Mr.
    Moore argues that trial counsel was ineffective regarding the aggravated rapes of Latoya
    K. and Deana T. For these offenses, the jury convicted Mr. Moore based on his criminal
    responsibility for Mr. Dancy’s conduct as the actual perpetrator, along with the conduct
    of other intruders on the subsequent aggravated rapes of Deana T.15 Overwhelming
    evidence showed that Mr. Moore shared Mr. Dancy’s intent in committing the aggravated
    rapes. Proof that Mr. Moore was the actual perpetrator of the aggravated rape of
    Shauntel K. showed that he shared the intent required for criminal responsibility for the
    other aggravated rapes. In addition, overwhelming evidence demonstrated that Mr.
    Moore shared Mr. Dancy’s intent in committing the aggravated burglary and the
    aggravated robberies, regardless of whether Mr. Moore entered the house after Mr.
    Dancy. Although trial counsel orally requested an instruction on facilitation for the
    aggravated rapes of Latoya K. and Deana T., facilitation was not a theory of Mr. Moore’s
    defense. Regarding all of these offenses, no reasonable probability exists that a properly
    14
    See 
    id. §§ 39-14-403(a)
    (1997) (defining aggravated burglary, as relevant here, as “burglary of
    a habitation”), 39-14-402(a)(1) (1997) (defining burglary, as relevant here, as entry, “without the effective
    consent of the property owner,” into “a building other than a habitation (or any portion thereof) not open
    to the public, with intent to commit a felony, theft or assault”), 39-14-406(a) (1997) (defining aggravated
    criminal trespass, as relevant here, as “enter[ing] or remain[ing] on property” without the owner’s
    effective consent and where the defendant’s presence will cause fear for the safety of another),
    39-14-405(a) (1997) (defining criminal trespass, as relevant here, as “enter[ing] or remain[ing] on
    property” without the owner’s effective consent).
    15
    See 
    id. § 39-11-402(2)
    (1997) (defining criminal responsibility, as relevant here, as when,
    “[a]cting with intent to promote or assist the commission of the offense, or to benefit in the proceeds or
    results of the offense, the [defendant] solicits, directs, aids, or attempts to aid another person to commit
    the offense”).
    14
    instructed jury would have convicted Mr. Moore of facilitation instead of the charged
    offenses. Therefore, we conclude that no prejudice resulted from trial counsel’s failure to
    properly request jury instructions on facilitation.
    Finally, we analyze attempt with respect to the convictions for especially
    aggravated kidnapping, aggravated robbery, and aggravated burglary. Criminal attempt
    applies to situations where the defendant begins or tries to complete a criminal act. 
    Id. § 39-12-101(a)
    (1997). We recently held that “criminal attempt is available as a
    lesser-included offense of any charged offense in every case in which: (1) the charged
    offense has a requisite intent element; and (2) the proof has fairly raised the completed
    offense.” State v. Thorpe, 
    463 S.W.3d 851
    , 863 (Tenn. 2015). Overwhelming evidence
    proved that the charged offenses were completed, and not just attempted. Mr. Moore did
    not contest that the offenses were completed. Attempt was not a theory of his defense.
    With regard to all of these offenses, no reasonable probability exists that a properly
    instructed jury would have convicted Mr. Moore of attempt instead of the charged
    offenses. Therefore, we conclude that no prejudice resulted from trial counsel’s failure to
    properly request jury instructions on attempt.
    In reviewing an ineffective assistance of counsel claim, we reach the same result
    regardless of whether, as the record here suggests, the trial court would have refused to
    give properly requested instructions on lesser-included offenses.               Omitting
    lesser-included offense instructions was harmless beyond a reasonable doubt because the
    jury, if given the opportunity, would not have convicted Mr. Moore of any of the asserted
    lesser-included offenses instead of the charged offenses. Because omitting these
    lesser-included offense instructions was harmless beyond a reasonable doubt, any
    deficiency of trial counsel resulting in the absence of these instructions cannot be
    prejudicial.
    III.
    We conclude that no reasonable probability exists that a properly instructed jury
    would have convicted Mr. Moore of any of his asserted lesser-included offenses instead
    of the charged offenses. Because Mr. Moore suffered no prejudice, he did not receive
    ineffective assistance of counsel as to any of his convictions. We hold that the Court of
    Criminal Appeals erred in concluding that prejudice resulted from trial counsel’s failure
    to request a jury instruction on aggravated kidnapping as a lesser-included offense of
    especially aggravated kidnapping. We therefore reverse the Court of Criminal Appeals’
    judgment granting a new trial on the especially aggravated kidnapping charges and
    reinstate the post-conviction court’s judgment denying relief as to the especially
    aggravated kidnapping convictions. We further hold that the Court of Criminal Appeals
    properly affirmed the denial of post-conviction relief on Mr. Moore’s convictions for
    15
    aggravated rape, aggravated robbery, and aggravated burglary. It appearing that Mr.
    Moore is indigent, costs of this appeal are assessed to the State of Tennessee.
    ______________________________
    SHARON G. LEE, CHIEF JUSTICE
    16