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Posted by: Tanja Trezise on Jun 7, 2013

Court: TN Court of Criminal Appeals

Attorneys 1:

Mike Mosier, Jackson, Tennessee, for the appellant, Roy Demond Duncan.

Attorneys 2:

Robert E. Cooper, Jr., Attorney General and Reporter; Kyle Hinson, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Rolf Hazelhurst, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge(s): WOODALL

Defendant, Roy Demond Duncan, was convicted by a jury for attempted second degree murder, aggravated assault, and employment of a firearm during the attempt to commit a dangerous felony. The trial court merged Defendant’s aggravated assault conviction with his attempted second degree murder conviction and sentenced him to ten years, and Defendant received a sentence of ten years in Count 3 to be served consecutively, for a total effective sentence of 20 years. Defendant raises the following issues on appeal: 1) the trial court erred by giving a jury instruction as to Count 3 that unduly influenced the jury to find Defendant guilty of attempted second degree murder; 2) Defendant could not properly be convicted of both attempted second degree murder and employing a firearm during the attempt to commit a dangerous felony; and 3) the trial court erred by not bifurcating the trial to allow the jury to determine if Defendant had a prior felony conviction at the time of the offenses for the purposes of determining Defendant’s sentence. After a careful review of the record, we affirm Defendant’s convictions but remand this case for a jury determination regarding Count 3 as to whether Defendant had a prior felony conviction pursuant to Tenn. Code Ann. § 39-17-1324(f). Upon remand, the trial court shall also enter a corrected judgment in Count 3 to reflect that the offense for which Defendant was convicted in Count 3 is a Class C, rather than a Class D, felony.