# FILED
March 25, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON JANUARY SESSION, 1996 STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9506- CR-00157 ) Appe llant, ) ) ) SHELBY COUNTY VS. ) ) HON . BERN IE WEIN MAN DARREN SMIT H, ) JUDGE ) Appellee. ) (Direct Appeal- Reckless ) Endangerment and At tempted ) Second D egree Mu rder)

FOR THE APPELLANT : FOR THE APPELLEE : JOHN KNOX WALKUP DANIEL A. SEWARD Attorney Generaland Reporter Attorney f or Appellee P. O. Box 11207 EUGENE J. HONEA Memphis, TN 38111-0207 Assistant Attorney General 450 James Robertson Parkway Nashvill e, TN 37243-0493 WILLIAM L . GIB BONS Distri ct Attor ney General REGINA LD R. HENDERSON KAREN COOK Assistant Distri ct Attor ney 201 Poplar Avenue Memphis, TN 38104
OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE-2- 

## OPINION

In t his case the defendant , Darren Smith, was convict ed by a Shelby Coun ty jury of

two (2) counts of at tempte d second degree murder and four (4) counts of rec kless endangerment. The tr ial court sentenced him to concurrent sentences of ten (10)years for each count of at

tempted murder and one (1) year foreach re ckless e ndang ermen t convicti on . Followi ng sentencing, the defendant filed a motion for judgm ent of acq uittal or in the a lternative a n ew tr i al. The motion alleged inter alia that the state fai led to p rove that t he defendant was legally sane at the time of the commission of

the offens es. The tri al court ag reed and entered a judg ment of no t guilty by reaso n of ins anity on all char ges. It is from this j udgment thatthe stateappeals. Af ter a caref ul review of the re cord in this case , we affirm th e judgm ent of the tria l court.

I.

The defendan t and Laura M oss were b oth police officers with theCity of Memphis. The coupl e became involved in a romanti c relati onship which ended
some ti me in April , 1993. Apparent ly the defendant was angry over the br eak-up, and the relat ionship bet ween him and Mos s be came acrim oniou s. The coup le filed formal co mplain ts agains t each oth er, a n d the defendant made several threateni ng phone calls t o Moss’ residence. On at least one occasion the defendantcame to M oss’ res idence uninvited, d espite rep eated ins tructions to stayaway from her. Thi s led to a physical al tercati on between the defendant and Michael Hil l, himsel f a poli ce officer and Moss’ romanti c interest at the t ime.-3- On June 4, 199 3, the d efend ant ca me to Moss ’ hom e to dis cuss a cred it card statement wi th her. Moss di d not have ti me to discuss t he matter, but the defendantpersisted in telepho ning he r all day. Sometime between 8:00 p.m. and 9:00 p.m., the defendant call ed Moss and told her that he was coming ov er to her house. Despite bein g told not to come, thedefendantneverthel ess had a fri end take him to Moss’ hou se. W h en Moss called t he police, the defendant left on foot. Laterthat night, Moss a nd Hill were in her b edro om wa tc hing tel evision. Her thr ee ( 3) d augh ter

s an d a n iece wer

e pl ayi ng i n anothe r be dro om. Sudden ly,
a shotgun blast

came through the window of the room where Mo ss and H ill were located. The ch ildren beg an to scre am an d ran into the hallway. A second blast
came through thekitchen wi ndow, a thir d shot was fi red through t he dining room window and a final blast splintered the front d oor. After t he last shot , Moss and Hill were able to se e the defend ant run fro m the house and drive away. Police later recovered t he shotgun from t he defendant’ s par ent’ s residence. The defendant confessed to the shoot ing when confro nted by the pol ice. At trial, Dr. Robert Freeman, a psychiatri st who treated the defendant for depression, testif ied that a se rious head injury ca used the de fendant to have pro ble ms with soci al inter action. Dr. Freeman opined t hat defendant was sufferi ng from “tem porary ins anity” at the tim e of the offe nse. The doctortestif ied thatthere wa s a “poss ibility” th a t the defen dant lack ed “sub stantial cap acity to apprec iate the wro ngfulne ss of his ac tions.” On cross-examinat ion, the p rosecution questioned Dr. Freeman regarding
an incident

prior to defendant’ s head injur y where he punc hed o ut a win dow in Moss’ residenc e and let h imself in. A lthough the docto r testified that t he h ead injury was a “large fac tor” in defend ant’s “temporary insani ty,” hestated th at-4-

knowledge of the prior i ncident actually “strengthen[ed]” his diagnosis t ha t defendan t was suffering from post-trauma tic stress disorder. In reb uttal, thestate i ntr oduced t he defen dant’s stateme n t to law enforcementauthorit ies concerni ng the prior incident where he punched through the window at Moss’ residence. Defendant was suspended for two (2) days fr om his police d uties as a result of this in cident. At the conc lusion of th e proof, the jury found defend ant guilty of two (2) counts of attempted second degree murder and four (4) c ounts of reckless endan germe nt. Subseq uently, the defendant filed a motion for

judgm ent of a cquitta l or in the alternat ive a new tr ial, al leging t hat the state fail ed to carry its burden on the issue of defend ant’s san ity at th e time of t he commission of t he offenses. The trialcou rt found that the defendant presented suf ficien t proof to rebut the presumption of sanit

y, and the st

ate presen ted no reliabl e proof in s upport of def enda nt’s sanity. Therefore, t he trialcourt set aside the j ury’s verdicts a nd ente red a judgment of not guilty by reason of i nsanity. From the tri al cou rt’ s judgmen t, the stat e bri ngs th is app eal asof ri ght pur suant to Tenn. R. App. P. 3(c).

II.
In perti nent part, Tenn. R. Crim. P. 29(a) provi des, “[t ]he court on motion of a defendant or of its own moti on shall or der the entr

y of judgment of

acquittal of one or more offens es charged in t he indict ment or information . . . if t he evidenc e is insufficien t to sustain a convictio n of such offense o r offense s.”-5- A motion for

judgment of acquittal raises a qu estion of law for the trial court to determ ine. State v . Ad ams , 916 S.W.2d 471, 47 3 (Tenn . Crim. App. 19 95). In mak ing this determ ination , the trial c ourt is conce rned with the legal suffi ciency of the evidence, not

the weight

of the evide nce. State v . Ad ams , 916 S.W.2d at 473; State v. Hall , 656 S.W.2d 60 , 61 (Tenn . Crim. App. 19 83). The trial court must “look only at all of the eviden ce introduced by t he State . . . take t he strongest l egitimate view of i t in fav or of the State, and . . . allow a ll reaso nable inferences

from it in the State’s favor.” State v. H all , 656 S .W .2d at 6 1. This Court must

apply t he s ame standard when resolvi ng issues concern ing the grant or denia l of a judgm ent of acq uittal. State v . Ad ams , 916 S.W.2d at 473.

III.
Insanity at the time that an offe nse is co mm itted is an ab solute de fense to
a crime. The standar

d for prov ing a plea of insanit y was establi shed in Graham
v. State , 547 S .W .2d 53 1 (Te nn. 19 77), an d was subs eque ntly codifi ed at Tenn. Code Ann. § 39-11-501(a) (1991), which provides: Insanity is a defense to prosecuti on if, at the time of

such co nduct, as a resu lt of menta l disease or defect, t he person lacked substanti al capaci ty eit her to appreci ate the wrongf ulness of t he perso n’s conduct or to conform that conduct to t he requirements of the law. A defen dant is pre sumed sane; therefore, at t he time of t he instant offenses, it was t he defendant who initially had to present evidence of his or her insanity. Spurloc k v. State , 368 S.W.2d 299, 300 (Tenn . 1963). Once evidence had been p resente d which raised a re asona ble dou bt as to the defe ndant’ s sanity, the burden of proof shifted to the state to establish the defen dant’s sa nity beyond a reas onab le doubt. State v. Sparks , 891 S.W.2d 607, 615 (Tenn. 199 5).1 Effectiv e July 1,1995, the l egislat ure amended the insanity statute, making insani ty an affirmative defense whereby the defendant

has the burden of

establi shing his or

her insanity by

clear and convincing evidence. Tenn. Co de Ann. § 39-11-501(a) (Su pp. 1995). -6- “ Sanity thus becom es an elem ent of the crime.” State v. Clayton , 656 S.W .2 d 344, 346 (Tenn. 1983) . To meet its b urden, the st ate had establ ish: (1) the defendant

was not “suf

fering f rom a mental illnessat t he t ime of the commission of the cri me,” or (2) the illne ss pro ved did not “pre vent his knowing the wrongfulness of his act” and did no t “re nder hi m substantial ly incapabl e of conforming his conduct t o the requir

ements of the l aw he is charged with violating .” State v. Jackson , 890 S.W.2d 436, 440 (Tenn. 1994) ( quoting State v. Clayton , 656 S.W .2d at 351). 1 The s tate could meet its b urden o f proving sa nity through the introduct ion ofexpert testimony on theissue, or through laytestim ony wh ere a p roper found ation fo r the ex press in g of a n opinio n is laid, or throu gh the sh owing o f acts or statements of the petit io ner, at or ver

y near the t ime of the commissi on of the cri me, which are co nsistent with sanity and inconsistent with insa nity. State v. Sparks , 891 S.W.2d at 461 (quoti ng Edwa rds v. State , 540 S.W.2d 641, 646 (T enn. 19 76)); State v. Jackson , 890 S.W.2d at 440.

IV.

E ntry of a judgm ent of acq uittal by reas on of insa nity is the ap propriate remedy where the burden of proof on the e lement of sani ty has shifted to the state, and the state fails to car r y it. Many juri sdicti ons, both federal and state, adhere to the v iew that it i s the t rial court’ s duty to determi ne, as a mat ter of law, whethera defenda n t has p resen ted su fficient e videnc e to pu t his san ity in question. See United S tates v. D avis , 772 F.2d 13 39, 1343 (7th Cir. 1985); United States v. McCracken , 488 F.2d 406, 409 (5th Cir. 1974); United States v.-7-

Green , 468 F.2d 116, 118 n. 3 (4 th Cir. 197 2); Davis v. United Stat es , 364 F.2d 572, 574 (10th Cir. 1 966); Otney v. United States , 340 F.2 d 696, 6 98 (10th Cir. 1965); Fitts v . United States , 284 F.2d 108, 112 (10 th Cir. 1960); United States
v. Horne , 304 F.Supp. 727, 730 (E.D. T enn. 19 69); Peop le v. Hill , 934 P.2d 821, 826 (Colo. 1997); Commonwealth v. Sirbaugh , 500 A.2 d 453, 4 60 (Pa . Super. C t. 1985); State v. Day , 560 P.2 d 945, 9 47 (N.M . Ct. App. 1977 ); People v. Johnson , 503 P.2d 1019 , 1020 (Colo. 1 972); McCra cken v. S tate , 237 A.2d 87, 88-89 (Md. Ct. Spec. App. 1968 ). Althou gh T enne ssee case law is sile nt on th is poin t, this Court agrees t hat the trial court should deter mine whether the d efendant has presented suffic ient evi dence to shif t the burden of

proof to t he state on t he element of sanity. Furtherm ore, this Court will not overtu rn a trial cou rt’s determinati on in thi s regard absent a findin g of an abuse of di scretion. Not withstandi ng the jury’s verd icts of guilt an d implicit reje ction of th e insanity defense, t he trialcourt found that the def endant in t he present case had produc ed sufficien t evidence to rebut the presum ption of sa nity. The trial court did not abu se its discre tio n in ma king this de termina tion. As a re sult, the state had the burden to prove the defendant ’s sa nity beyon d a reas onable doubt. State v. Sparks , 891 S.W .2d at 615 ; State v. Clayton , 656 S.W.2d at 346. Even though the defendant notif ied the state of his in tention to present an insanity defen se ap proxim atel y five (5) mo nths prior to trial, the state fa iled to presentany ex pert tes timon y on the issue o f defen dant’s sanity a t trial. Instead, the state relied upon lay testimon y conce rning acts or statem ents of the defendantprior to and after t he commission of t he offenses. The victi m testifi ed that defend ant threatened her and Offi cer Hillon several prior occasi ons. The state prese nted th e defe ndan t’s state men t conc erning the prio r incid ent whe re he punched through a win dow at Mo ss’ re s idence. Furt hermore, alt hough the-8-

defendanttestif ied that h e could not r emember committing the of fenses, Off icer HarveyEdingbough stated that the defendant admit ted shooting into Moss’ home shortly after t he incident . However, whi le this testimony mi ght be construed as being co nsistent w ith sanity, suc h testimo ny was n ot nece ssarily inco nsiste nt wit h insanity. See State v. Sparks , 891 S.W .2d at 461 ; State v. Jackson , 890 S.W.2d at 440. There fore, the sta te’s eviden ce was insufficient to estab lish de fenda nt’s sanity bey ond a re asona ble dou bt. In this case we offer no opi nion as to t he defendant’ s actual menta l state at the time o f the offens e. W e are sim ply saying that under the appl icable l aw at the time of t he offense t he defendantoffered suf ficien t evidence i n insanit y for t he trialjudge to pro perly concl ude thatthe burden of proof on thi s issue had shi fted to the stated . Howe ver, the state made little effort to prove defend ant’s san ity beyond a reaso nable d oubt. Be cause the state fa iled to carry its burde n on th is issue, the tri al court pr operly gr

anted the defen dant’s moti on for judgment of acqui tta l. According ly, the j udgment of t he tr ial cour

t is AFFIRMED

.

____________________________________ JERRY L . SMI TH, J UDGE-9-

CONCUR:

___________________________________ DAVID G. HAY ES, J UDGE

___________________________________ LYNN W. BR OWN, SPECI AL JUDGE