Tennessee Code Annotated

Tenn. Code Ann. § 40-35-121 (2026)

Criminal gang offenses - Enhanced punishment - Procedure

✓ current as of May 2026

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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 primary activities, the commission of criminal gang offenses;
  - (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 § 39-13-1003;
    - (xvii) Especially aggravated burglary, as defined in § 39-13-1004;
    - (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 shall be punished one (1) classification higher than the classification established by the specific statute creating the offense committed if:
- (1) The defendant was a criminal gang member at the time of the offense; and
- (2) The criminal gang offense was committed at the direction of, in association with, or for the benefit of the defendant's criminal gang or a member of the defendant's criminal gang.

(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 shall be punished two (2) classifications higher than the classification established by the specific statute creating the offense committed if, at the time the offense was committed:
- (1) The defendant was a criminal gang member;
- (2) The defendant was also a leader or organizer of the criminal gang; and
- (3) The offense was at the direction of, in association with, or for the benefit of the defendant's criminal gang or a member of the defendant's criminal gang.

(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.

Amended by 2021 Tenn. Acts, ch. 545, s 13, eff. 7/1/2021.

Amended by 2016 Tenn. Acts, ch. 1034, Secs.s 1, s 2, s 3 eff. 4/28/2016.

Amended by 2013 Tenn. Acts, ch. 415, s 1, eff. 7/1/2013.

Amended by 2013 Tenn. Acts, ch. 357, s 1, eff. 7/1/2013.

Acts 1997 , ch. 437, § 1; 2011 , ch. 493, § 2; 2012 , ch. 848, § 34.

Notes of Decisions

Cited in 55 cases (15 in the last 5 years), 2003–2026 · leading case: State v. Bonds, 502 S.W.3d 118 (Tenn. Crim. App. 2015).

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State v. Bonds, 502 S.W.3d 118 (Tenn. Crim. App. 2015). · cites it 134× “' At the sentencing hearing, the trial court enhanced Defendants Bonds, Bishop, and Sullivan to one classification higher for their convictions of attempted second degree murder and aggravated assault pursuant to subsection (b) of T.C.A. § 40-35-121. Defendant Bonds ■ received…”

State of Tennessee v. Christopher Minor, 546 S.W.3d 59 (Tenn. 2018). · cites it 28× “18, 2016), declaring the criminal gang offense statute, see Tenn. Code Ann. § 40-35-121 (b) (2014), unconstitutional applies to the defendant’s appeal because it was pending on direct review when Bonds was decided.”

Serrano v. State, 133 S.W.3d 599 (Tenn. 2004). · cites it 2× “In Serrano’s petition for post-conviction relief, he alleged the following pre-waiver issues: (1) that the indictment failed to charge him with the violation of the anti-gang statute located at Tennessee Code Annotated section 40-35-121; (2) that the indictment failed to charge…”

Manuel Vasquez v. Tony Rackauckas, 734 F.3d 1025 (9th Cir. 2013). · cites it 2× “Codified Laws § 22 -10A-1(1) (same); Tenn. Code Ann. § 40-35-121 (a)(1) (same); Utah Code Ann.”

State of Tennessee v. Devonte Bonds (Tenn. Crim. App. 2016). · cites it 134× “At the sentencing hearing, the trial court enhanced Defendants Bonds, Bishop, and Sullivan to one classification higher for their convictions of attempted second degree murder and aggravated assault pursuant to subsection (b) of T.C.A. §40-35-121. Defendant Bonds received an…”

State of Tennessee v. Robert Fusco, 404 S.W.3d 504 (Tenn. Crim. App. 2012). “h greater weight in favor of transfer given to offenses against the person; (4) WTiether the offense was committed in an aggressive and premeditated manner; (5) The possible rehabilitation of the child by use of procedures, services and facilities currently available to the…”

State of Tennessee v. William Jermaine Stripling (Tenn. Crim. App. 2016). · cites it 45× “” Tenn. Code Ann. § 40-35-121 (b) (2014). As applicable to this case, “criminal gang offense” is defined as follows: 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…”

State of Tennessee v. John Foxx (Tenn. Crim. App. 2022). · cites it 32× “Constitutionality of Statute Defendant contends that Tennessee Code Annotated section 40-35-121 violates his right to substantive due process, specifically because subsection (a) does not itself require a nexus to criminal activity.”

State of Tennessee v. Gerald Lamont Byars (Tenn. Crim. App. 2017). · cites it 30× “” Tenn. Code Ann. § 40-35-121 (b) (2014). As applicable to this case, a “criminal gang offense” is defined as follows: “[t]he commission or attempted commission, facilitation of, solicitation of, or conspiracy to commit [p]ossession of a controlled substance .”

State of Tennessee v. Kaylecia Woodard (Tenn. Crim. App. 2017). · cites it 25× “Additionally, the defendant asserts that Tennessee Code Annotated section 40-35-121 is unconstitutional on its face because it is overbroad so as to impinge upon her constitutional right to freedom of speech and because it offends principles of due process.”

State of Tennessee v. Ronald Turner (Tenn. Crim. App. 2017). · cites it 22× “Criminal Gang Enhancement Defendant argues that the criminal gang enhancement applied to some of his convictions pursuant to Tennessee Code Annotated section 40-35-121 should be vacated in light of this Court’s decision in State v.”

State of Tennessee v. Christopher Minor (Tenn. Crim. App. 2017). · cites it 15× “counts of aggravated burglary, one count of aggravated assault, one count of convicted felon in possession of a firearm, one count of employing a firearm during the commission of a dangerous felony, one count of employing a firearm during the commission of a dangerous felony…”

Show all 55 citing cases →

— Tenn. Code Ann. § 40-35-121(a) — 1 case

State of Tennessee v. John Foxx (Tenn. Crim. App. 2022). “Constitutionality of Statute Defendant contends that Tennessee Code Annotated section 40-35-121 violates his right to substantive due process, specifically because subsection (a) does not itself require a nexus to criminal activity.”

— Tenn. Code Ann. § 40-35-121(a)(1) — 4 cases

State v. Bonds, 502 S.W.3d 118 (Tenn. Crim. App. 2015). “' At the sentencing hearing, the trial court enhanced Defendants Bonds, Bishop, and Sullivan to one classification higher for their convictions of attempted second degree murder and aggravated assault pursuant to subsection (b) of T.C.A. § 40-35-121. Defendant Bonds ■ received…”

State of Tennessee v. Devonte Bonds (Tenn. Crim. App. 2016). “At the sentencing hearing, the trial court enhanced Defendants Bonds, Bishop, and Sullivan to one classification higher for their convictions of attempted second degree murder and aggravated assault pursuant to subsection (b) of T.C.A. §40-35-121. Defendant Bonds received an…”

State of Tennessee v. Robert L. Cody, III (Tenn. Crim. App. 2023).

— Tenn. Code Ann. § 40-35-121(a)(1)(2014) — 1 case

State of Tennessee v. Kaylecia Woodard (Tenn. Crim. App. 2017). “Additionally, the defendant asserts that Tennessee Code Annotated section 40-35-121 is unconstitutional on its face because it is overbroad so as to impinge upon her constitutional right to freedom of speech and because it offends principles of due process.”

— Tenn. Code Ann. § 40-35-121(a)(1)(A) — 2 cases

— Tenn. Code Ann. § 40-35-121(a)(1)(B) — 2 cases

— Tenn. Code Ann. § 40-35-121(a)(2) — 4 cases

— Tenn. Code Ann. § 40-35-121(a)(2)(C) — 2 cases

— Tenn. Code Ann. § 40-35-121(a)(2)(D) — 3 cases

— Tenn. Code Ann. § 40-35-121(a)(2)(D)(G) — 1 case

— Tenn. Code Ann. § 40-35-121(a)(2)(F) — 1 case

— Tenn. Code Ann. § 40-35-121(a)(2)(G) — 2 cases

— Tenn. Code Ann. § 40-35-121(a)(3) — 2 cases

State of Tennessee v. Trevor Rochel Cullom, Alias (Tenn. Crim. App. 2020).

— Tenn. Code Ann. § 40-35-121(a)(3)(A) — 2 cases

— Tenn. Code Ann. § 40-35-121(a)(3)(A)(i) — 2 cases

— Tenn. Code Ann. § 40-35-121(a)(3)(A)(ii) — 1 case

— Tenn. Code Ann. § 40-35-121(a)(3)(B) — 2 cases

— Tenn. Code Ann. § 40-35-121(a)(3)(B)(xxv) — 3 cases

State of Tennessee v. Gerald Lamont Byars (Tenn. Crim. App. 2017). “” Tenn. Code Ann. § 40-35-121 (b) (2014). As applicable to this case, a “criminal gang offense” is defined as follows: “[t]he commission or attempted commission, facilitation of, solicitation of, or conspiracy to commit [p]ossession of a controlled substance .”

State of Tennessee v. Ronald Turner (Tenn. Crim. App. 2017). “Criminal Gang Enhancement Defendant argues that the criminal gang enhancement applied to some of his convictions pursuant to Tennessee Code Annotated section 40-35-121 should be vacated in light of this Court’s decision in State v.”

— Tenn. Code Ann. § 40-35-121(a)(3)(B)(xxvi) — 1 case

— Tenn. Code Ann. § 40-35-121(a)(4) — 1 case

— Tenn. Code Ann. § 40-35-121(a)(4)(A) — 3 cases

— Tenn. Code Ann. § 40-35-121(a)(4)(B)(ii) — 1 case

State of Tennessee v. Gary Vincent Elmore (Tenn. Crim. App. 2010).

— Tenn. Code Ann. § 40-35-121(a)(l) — 2 cases

Manuel Vasquez v. Tony Rackauckas, 734 F.3d 1025 (9th Cir. 2013). “Codified Laws § 22 -10A-1(1) (same); Tenn. Code Ann. § 40-35-121 (a)(1) (same); Utah Code Ann.”

— Tenn. Code Ann. § 40-35-121(a)(l)(A) — 1 case

— Tenn. Code Ann. § 40-35-121(a)(l)(B) — 1 case

— Tenn. Code Ann. § 40-35-121(b) — 18 cases

State of Tennessee v. Christopher Minor, 546 S.W.3d 59 (Tenn. 2018). “18, 2016), declaring the criminal gang offense statute, see Tenn. Code Ann. § 40-35-121 (b) (2014), unconstitutional applies to the defendant’s appeal because it was pending on direct review when Bonds was decided.”

State of Tennessee v. William Jermaine Stripling (Tenn. Crim. App. 2016). “” Tenn. Code Ann. § 40-35-121 (b) (2014). As applicable to this case, “criminal gang offense” is defined as follows: 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…”

— Tenn. Code Ann. § 40-35-121(b)(2) — 1 case

— Tenn. Code Ann. § 40-35-121(c) — 2 cases

— Tenn. Code Ann. § 40-35-121(d) — 1 case

State of Tennesse v. Ronnie Lucas Wilson (Tenn. Crim. App. 2021).

— Tenn. Code Ann. § 40-35-121(e) — 2 cases

— Tenn. Code Ann. § 40-35-121(g) — 5 cases

State of Tennessee v. Dashun Shackleford (Tenn. Crim. App. 2022).

State of Tennessee v. Dashun Shackleford (2023).

State of Tennessee v. Robert L. Cody, III (Tenn. Crim. App. 2023).

— Tenn. Code Ann. § 40-35-121(i) — 1 case

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