Tennessee Court of Criminal Appeals Hears Challenge to Sentences in Franklin Waffle House Shooting Case

The Tennessee Court of Criminal Appeals, sitting in Nashville at its September session, heard oral argument Thursday in State of Tennessee v. Jeremy Fowler over whether multiple reckless-endangerment convictions should merge for sentencing and whether the trial court properly stacked consecutive sentences.

Appellant counsel Sean Aiello argued that the trial evidence and the state's theory at trial treated the shooting as a single act directed at the vehicle's occupants, while the state shifted at sentencing to treat each trigger pull as a separate criminal act. "The singular theory that was presented to the trial and to the jury was that the act of the firing of the gun, no matter the rounds expended, Mr. Fowler committed the crime of reckless endangerment as to each of the vehicle's seven occupants," Aiello told the court, arguing the post-trial sentencing theory raised notice and fairness concerns.

The argument matters because it affects how many punishable units resulted from one incident early on Feb. 13, 2022, when, according to the record summarized at argument, the defendant fired multiple times at a vehicle containing seven occupants after an altercation outside a Franklin Waffle House. Counsel for Fowler emphasized the record showed six shots were fired but said trial evidence did not establish where four of those rounds landed. "The proof is devoid as to what happened to the other four bullets," Aiello said, describing testimony that the gun was fired "in a wild manner, up, down, left, right." He asked the court to construe merger principles with attention to the charging instrument, the state's theory presented to the jury, and the jury's verdict.

Representing the State, Will Lundy argued the trial court's sentences should be affirmed and that Tennessee Code section 39-13-103 supports treating each discharge of a firearm as a separate unit of prosecution. "As long as a person happens to be in the zone of danger, no matter how many shots are fired, the person is endangered once again by every single shot that is fired," Lundy said, urging a grammatical and purpose-driven reading of the statute and referencing precedent that permits multiple offenses when multiple victims are put in jeopardy.

Lundy told the court that the trial court applied enhancement factors 1, 3, 8, 9 and 10 and that the defendant conceded at sentencing that all but factor 10 applied. He also argued that consecutive sentences were permitted because Fowler was on probation when the offenses occurred and that only one statutory factor is necessary to permit consecutive sentencing under the Sentencing Act.

During argument, Aiello corrected an earlier answer about the jury instructions, telling the court that the technical record showed the trial court "did identify each individual victim, pointing out that, for example, in count 4, the only difference with respect to this count is the existence of a different victim." The correction noted the verdict forms reflected the victims' names for each count.

Both sides cited case law in their oral presentations, and the panel — which identified itself at the start of the session as Judges Robert Wiedemeyer (presiding), Robert L. Holloway Jr. and Kyle A. Hixson — questioned counsel about whether the unit of prosecution should be the number of shots fired or the number of victims identified in the indictment.

No ruling was announced at the hearing. After extended questioning and argument, the court thanked counsel for their briefs and advocacy and moved on to the next case.

The appeal raises discrete legal questions the Court of Criminal Appeals will resolve from the record and briefs: whether multiple convictions for reckless endangerment that arose from a single firing incident must merge for sentencing under Tennessee law, how to apply enhancement and mitigating factors the trial court considered, and whether consecutive sentences were authorized by the Sentencing Act when the defendant was on probation.