1 Defendant has as signe d twel ve iss ues for our revi ew; however, all is sues rel ate to the tr ial court ’s de fini ti ons of the mens rea requirem ents for ho micide s. Accordingly, we combine all iss ues into a sin gle issu e for p urp oses o f this app eal. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE March 12, 2002 Session STATE OF TENN ESSEE v. JAMES NOB LE PAGE Direct Appeal from the Criminal Court for Montgom ery County No. 40000192 John H. Gasaway, III, Judge

No. M2001-01853-CCA-R3-CD - F iled April 16, 2002

The juvenile defendant, fifteen-y ear-old James Noble Page, was tried as anadult for second degree murder a nd convicted as ch arged

by a Montgome

ry County ju ry. The specific issue in this appeal is whether the trial court erred in instructing the jury on the “knowing ” mens rea element of second degree murder. 1 The trial court instructed the jury that the “kno wing” element of second deg ree murder could be established by de fendant’s awareness “(1) tha t his conduct is of a particular nature; or (2) that a pa

rticular circumst ance exis ts; or

(3) that t he condu ct was re asonably certain to cause the result.” (Emphasis added). The state concede s the instruction was error bu t contends it was harmless

. We conclude second degree murde r is a result- of-cond

uct offe nse; allowing the j ury

to convict based upon awareness of the nature of the conduct

or circumstances surrounding the conduct errone ously

lessens the state’s burden of proof for this offense; the error in the jury charge was not harmlessunder the

facts of this case; and

the conviction must be reversed and the case re manded for a new trial. Tenn. R. App.P. 3 Appeal as of Right ; Judgme nt of the Cr

iminal Court Reversed; Remanded for New Trial J OE G. R ILEY , J., delivered the opinion of the court, in which T HOM AS T. W OODA LL and J OHN E VERE TT W IL LI AMS , JJ., joined. Michael J. Love, Clarksville, Tennessee (at trial and on a ppea l), and David L. Ray bin, Nashville, Tennessee (on appeal), for the a ppellant, James Noble Page. Paul G. Summ

ers, Attorney Gene

ral and Reporter; David H. F indley , Assistan

t Attorne y General ; John W es le y Carney, Jr., District Attorney General; and James B. Crenshaw, Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

.-2- OPINION On November 13, 1999, the fifteen-y ear-old defendant struck the eighte en-y

ear-ol d victim in the head

with a bas eball

bat afte r a verb al confr

ontation; t

he victim d

ied as a r esult of th is in ju ry. The defenda

nt was tra nsferr ed from Juv enile Cour

t to the Criminal Court of Montgomery County to be tried as an adult and was indicted for second degree murde r. After a jury

trial, the defendant was co nv ic te d a s c ha rg ed an d s en te nc ed to fi ft ee n ye ars in the Dep artment o f Correction. This appeal followed.

FACTS Sufficiency

of the evidence is not an

issue in thi s appeal . Never theless, it is necessary tha t w e set fort h certain trial evidence in order to place the challenged jury

instruction in proper perspective. On the evening of Saturday , November 13, 1999, the fifteen-y ear-old de fend ant and hi s teenage friends, Bria

n Rader, David Smith, Kris Perrone, Manuel Pritzl, and Dennis Pritzl, met at the Pritzls’ home in Clarksville. Rader testified the defendant was upset and “g rumpy” when he arrived. Rader stated the d efendant told h im he had argued with his mother and said he “fe lt like getting into a fight.” An adult purchased eighteen cans of beer for the boy s w ith the defendant’s money . The defen dant drank se veral beers bef

ore the g roup lef t in Rader ’s truck

to go to th

e bowling

alle y . Dennis Pritzl

testified the defendant

told h im he d rank seve n bee rs. B oth De

nnis a nd Ma nuel Pritzl said the defendant had slurred speech. The defendant was riding in the front passenger seat of the truck when it passed the eighteenye ar-old victim, Chris Jones, who was walking with Pamela Hicks and her son, Tommy Hicks. The vict imwas holding hands with Pamela Hicks, his girlfriend, and the victim was c arrying a kn if e inside his jacket. As the truck

passed, the defendant y elled at the victim and his companions. Rader, who was driving the truck, testifiedthe defe ndant y elled, “ Ooh! You ’re ug ly! ” DennisPritzl and Kris Perrone testified the defendant y elled, “Hey !” The victim then raised his middle fing er to t he truck in an obscene gesture. At the def endant’ s reques t, Rader tur ned the tr uck arou nd and dr ove past t he victim again. As they passed the victim, the defendant extended a baseball bat out of the window, nearly hitting the victim. Rader stopped the truck. The boys e xited the parked truck and y elled at the victim

and his friends as they walked past. Tommy Hicks testified one of the m askedthe victim

why he dropped outof school. Other

witnesse s stated th

e defendant y

elled, “ Why d id y ou flip us off?” The

victim-3-

and his friends did

not respond, but the victim displayed a knife . The Pritzls stated the victim was “flipping” or “twirling” the knife in his hand. Dennis Pritzl said he saw the knife disappear as the victim walked past them. The victim and his companions continued walking. The defendant

returned to the truck and got the baseba ll bat. Holding the bat, he crossed the street and followed the victim, who continued walking away with his companions. The defendant returned to the truc

k where he resum ed his pla ce in the passeng er seat , holding

the bat be

tween his legs. R ade r stated t

he defe ndant ask ed him to tur

n around again b ecause

the defe ndant wa nted to hit the victim with the bat. Rader turned the truck around, and again they passed the three on

the side of the road . When the t

ruck pull ed into a d

riveway , the def

endant e xited the tr

uck, still holding the bat. The defendant followed thevictim, Pam ela Hick s, and Tommy

Hicks, a s they

walked a cross a field toward

Golf Club Lane. Smith testified the defendant was holding the bat down at

his side. Rader and Manuel Pritzl testified the defendant was taunting the victim as he walked behind him by asking, “Are you going to stab me?” Pamela Hicks testifie d the vict

imwas holding her right hand with his left hand, and his other hand was in

his pants pocket. She and Tommy Hicks testified the y were not holding a knife as they walkedacross the field, nor was the victim. Witnesses testified the victim and his companions never turnedaround to facethe defendant, but instead continued walking with their backs to him. Manuel Pritzl testifie d he hea

rd the victim

tell the defendant, “You better leave me a lone if you

know what is good fo r y ou.” Dav

id Smith and Dennis Pritzl stated they never saw the three be have ag gressi vely toward the defendant or threaten him. Pamela Hicks sai d the defendant approached the victim from behind and struc k him over the headwith the baseball bat. Witnesses testified they hea rd a loud sound as the bat struck the victim’s head. Pamela Hicks stated she felt the victim’s hand flex and drop her hand. She and Tommy Hicks said the victim took f

our or fi ve steps b efore f

alling in to the street. David

Spears, w

ho stopped

to assist the injured victim, found a knife in the left breast pocket of the victim’s jacket. Immediately

after the defendant struck the victim, he ran to the truck, threw the bat into the bed, an d j um pe d i n, yel li ng “G o! Go !G o! ” j us t b efor e t he tr uc k s pe d a wa y. T he gr ou p o f b oys returned to the Pritzl residence where the defe

ndant used the bat to re-enact how he struck the victim. Dennis Pritzl testified the defendant said he thought the victim was going to turn and stab him, but the defendant’s statement was inconsiste nt with his o wn obser

vations du

ring the incident

. Manuel Pritzl testified the defendant did not think he had hit the victim hard. The following

Monday , the def

endant a nd his frie nds were surprise d to learn the victim had died. Denn

is Pritzl stated the defendant said he was scared and did not know he hit the victim that hard. Manuel Pritzl testified the defendant said, “I’m getting sick, ” after learning of the victim’s death. Dennis Pr

itzl, Manue

l Pritzl, and

Kris Perrone stated there was an agreement to say

none of-4-

themwas i nvolv ed in

the incident. Th

e def enda nt wa s pre sent f

or a s hort t

ime w hile M anuel Prit

zl burned the baseball bat. Medical examiner Dr. Bruce L evy testified the victim had a large laceration

on the back of hi s he ad, a skull fracture, and brain injury , all of which were caused by the same blow. Dr. Levy opined a full swing would have be en nece ssary

to cause the skull fracture, and the

blow came from behind the victim. These injuries led to the victim’s death. The defendant testified that on the day of the victim’s death, he

had arg ued with his mother and was having problems at scho ol. T hat even ing, he went to the

Pritzl resid

ence and met his friends

. He stated he drank eleven beers over a pe riod of one and one-half hours and had not eaten a meal that day. Ac cording to the de fendant, he was drunk when the gr oup left in Brian Rader’s truck to go to the bowling alley

. He testified he yelled

“Hey! ” out the window as the truck passed the three people walking on the side of the road because he thought he hea rd someone ye

ll from the back of the truck. The defendant testified he asked the three people why they made the obsc ene gesture, but they did not respond. He stated he saw the victim “flipping” a knif e. The defendant

said he asked Rader for a baseball bat, and R ader ha nded one to him. He admitted he stuck the bat out of the window as they passed the victim, and he told Rader to turn the truck around. The defendant testified he exited the truck and followed about ten feet be hind the vi ctim

and his companions withoutsaying a nything. He

said he carried the bat to “even the score” because the victim had a k nife. The def endan t said he ask ed the victi m if he was go ing to sta b him, and the victim replied, “Leave me alone before you get hurt.” According to the def

endant, t he victim a

nd his compan ions slowed their pace as they approached

Golf Club Lane after w alking through the field, which allowed him to get within three feet of them. He said the victim had a knife clinched in his hand. The defendant stated he beca me scared when the victim started to turn toward him. The defendant testified he sped up to get close r to the victim before heswung the bat. He also said he did not intend to hit the victim in the head and did not know where he had struck him. The defenda

nt said he didnotbelieve there was going to be a confrontation between him and the victim. He

testifie d he had b een intimi dated af ter see ing the v ictim’s kn

ife and w anted to intimate the victim

in return and “back

him down.” He testified he could not believe the victim had died. Forens ic psychiatrist Dr. Ke ith Caruso testified for the defense that, due to defe ndant’ s intoxication, the defendant lacked the substantial capacity to form the nece ss ary

mental sta

te to knowing lyk ill the vic tim. Dr. Ca ruso stated the def

endant’ s intent wa s to intimida te the vic tim rather than to attack him. The psyc hiatrist acknowledged the defendant kne w he had a batin his-5-

hand and knew he was swinging it at the victim. He opined the defendant did not intend to kill or hurt the victim, but did intend to strike the victim.

FINAL ARGUMENT I n f inal argument defense counsel conc eded it was undisputed that the defendant hit the victim withthe bat, thereby

causing his death. Counsel further conceded the evidence did not justify s elf-defense. Instead, counsel arg ued the defendant was intoxicated, “didn’t appreciate his conduct, ” had “no understanding of how wrong it was . . . how sever e it was a t that time, ” and did

not think he hit the victim “that hard.” Counsel su ggested the defenda nt committed criminally neglig ent homicide. The state answered in its rebuttal argument that the def endant acted “knowingly” as that term would be defined in the instructio ns to be g iv en by the trial court. Spec ifically, the state a rgued “knowingly ” included “[acting] with anaware ness that his conduct is of a particular nature.” The state further argue d “knowingly ” could a lso be pro ven by

showing “a pers on acts w ith an awa reness that a particular circumstance exists, or that the conduct was reasonably certain to cause the result.” The essence of the state’s argument was that the defe ndant acted

knowingly since

he was aware of his acts and surrounding circumstances.

JURY CHARGE The trial court charged the indicted offense of second degree murder

and the lesser-included offenses of voluntary manslaug hter, reckless homicide and criminally negligent

homicide. The jury charge on second degree murder mirr ored the state’s argument as to its “knowing” mens rea require ment and w as as follows: Any person who c ommits second degree murder is guilty of a crime. For you to find the

defenda nt guilty of this off

ense, the state must have proven bey ond a rea sonable d oubt the e xistence o f the foll owing e ssential e lements: (1) that the defendant unlawfully killed the alleged victim; and (2 ) t ha t t he de fe nd an t a ct ed kn ow in gl y. A person acts “kn owingly

” if that p erson acts with an a warene ss: (1) that h is conduc t is of a pa

rticular nature; or (2) that a particular circ

umstance exists; or (3) that the conduct was reasonably certain to cause the result.-6- The requirement of “knowingly ” is al so esta

blished if it is shown that the defendant acted intentionally

. A person a cts “i nt en ti on al ly” when that person acts with a conscious objective or desire either: (1) to ca use a par ticular r esult; or (2) to engage in particula

r conduct. (Emphasis added). In defining “intentionally or knowingly”

a s an elem ent of voluntary manslaug hter, the instructions referred to the previously -given definitions of those t erms. The cha

rge on the “re ckless” element of reckless homicide referred to the unjustifiable r isk either: “(1) that

a particular re sult will occur; or (2) that a particular circumstance exists.” (Emphasis added). The charge on the “c riminal negligence” mens rea of criminally negligent homicide referred to “the circumstances surrounding that per son’s conduct or

the result of that conduct. . . .” (Emphasis added). As stated, the jury convicted the defendant of second degr ee murder.

ANALYSIS The defendant

contends the trial court’s jury instruction defining the “knowing” mens rea element of second degr

ee murde r was er roneous. He arg

ues (1) t he defin ition was in the disjunctive and authorized a conviction based only upon an awareness of the n ature of the condu ct or tha

t a particular circumstance exists; (2) the instruction did not require a finding that the d efenda nt must be aware that his conduct was reasonably certain to cause death; (3) t he instru ction er roneousl y less enedthe state’s burden of proof; and (4) the err or was not harmless. The state c oncede s o n appeal that the jury

instr uctio n was erro neou s; how ever , it co nten ds the erro r washarm

less. We must agree with the defendant in all respects. A. Ge nera l Disc ussio n of Mens Rea There are fou

r culpab le mental

states in Tennesse e: intenti o nal, kn owing, reckless and criminal negligence. Tenn. Code Ann. § 39- 11-302. The culp able men tal state is gene rally set forth in the statute defining the offense. See, e.g., Tenn. Code Ann. § 39-13-210(a)(1) (specifically stating the culpable mental state of a “ knowing kill ing” in t he definition for second degree mur der) (emphas is add ed) ). If

a culpable mental state is not specified, then intentiona

l, knowing

or reck less will gen erally

su ffice. Tenn. Cod

e Ann. § 39 -11-301( c); see, e.g., Tenn. Code Ann. § 39-13- 503(a)(1) (defining rape as unlawful sexual penetration of a victim with force or coerc ion but not specifying

a mental state; thus, making intentional, knowing, or reckless applica ble).-7-

Eachof these mental states is defined with reference to two or three of the following

possible conduct elements: (1) nature of

defendant’s conduct, (2) circumstances surrounding the defendant’s conduct, and (3) result of the defendant’s conduct. Tenn. Code Ann. § 39-11-302. “Intentional” c an refer to the nature of defendant’s conduct or the re sult of defendant’s conduct. Tenn. Code Ann. § 39-11-302(a). “Know ing” can refer to all three of the conduct elements. Id

. at (b). “Reckless” can refer to the circumstances surrounding defenda nt’s conduct or the result of defendant’s conduct. Id

. at (c). “Criminal negligence ” canrefer to the circumstances surrounding defendant’s conduct or the result of defendant’s conduct. Id . at (d). In add ition, our code contem plates tha t the appl icable c onduct el ement (n ature of the condu ct, circumstances surround

ing the c onduct, a

nd result of the co nduct) for a

given culpable m

ental sta te (intentio nal, knowing, reckless and criminal neg ligence) also depends upon the offense. See Tenn. Code Ann. § 39-11-201( a)(1), (2 ) (requ iring, in order t

o convict , not only

proof of the culpa

ble mental state, but also proof of “the conduct, circumstances surrounding the conduct, or a result of t he conductdescribed in the definitio n of the of fense ”) (emphasis added)). Thus, although the definition of “intentional” includes both natureof the conduct or result of the conduct, one may not be applicable to a

given offense. See gen erally , State v. Ducker , 27 S.W.3d 889, 896 (Tenn. 2000). B. Mens Rea of Second Degree Murder We first note that

second degree murder c an be committedby either a “ knowing killing of another,” Tenn. Code Ann. § 39-13- 210(a)(1), or by the killing of another which results from the unlawful distr

i bution of certain drugs, id . at (2 ). The kill ing rel ating t o the d istr ibut ion o f drugs portion of the sta

tute doesnot speci fy

a particular cul

pable me ntal sta te. However, a “knowing killing” obviously require s the culpable mental state of “knowing.” We confine our analy sis in this opinion to that form of second degree murder specify

ing the “knowing killing of another.” Tenn. Code Ann. § 39-13-201(a)(1). “Knowing ” is defin ed by statute as follow s: “Know ing” refers to a person who acts knowingly wi t h respect to t he conduct or to circumstances surrounding the c onduct when the person is awa re of the nature of the conduct or that the circumstances exist. A person acts knowingly

with resp ect to a r

esult of the person’s conduct w

hen the pe

rson is aw are tha

t the cond uct is reasonably

certain to cause the result. Tenn. Code Ann. §§ 39-11- 106(a)( 20), -302 (b). How ever, a knowing second d egree murder is strictly a “result-of-conduct” offense

. See Ducker , 27 S.W.3d at 896. The result of the conduct i s the only conduct e

leme nt of t he offe

nse; the “nature o f the conduct” tha t causesdeath is inconsequential. Id

.1 We also not e this iss ue was not rais ed during tri al, but rather was rai sed f

or the fir st ti me in the motion for new trial. Nevertheless, an erroneous or inaccurate jury charge, as opposed to an i ncomplete jury charge, is not wai ved by t he f ai l ur e t o ma ke a c on t emp or an eo us ob j ec t i on ; i t may be r ai s ed f or t he fi rs t t i me in the m otion for n ew trial. State v. Lynn , 924 S.W .2d 8 92, 8 99 ( Ten n. 19 96) ; State v. El dridge , 951 S. W.2d 775, 779 (Tenn. Crim. App. 1997); Tenn. R. C rim . P. 30 (b). -8- In fairne ss to the trial

court, it was far from clear at the time of trial how the “ knowing” mens rea for second d egree murder s hould be d

efined in jury

instructi ons. 1 The trial court’s charge on the definition of “ kno win g” w as v erb ati m fr om T.P .I. - CR IM 2.09 (5 th ed. 2000). In Ducker , decided only months prior to the trial of t his case , our supr

emecourt did state that second degree murde r was a “result-of-conduct” offense. 27 S.W.3d at 896. However, Ducker was not a second degree murde r case; nor did Ducker

discuss jury charges for result-of-cond uct offenses. The actu al holding in Ducker was that a

ggravated child abuse is a na ture-of-conduct offense, rather than a result-ofconduct offense. Id . at 897. The firs t case to actually find r eversi ble err or in t he fail ure to charge seconddegree murder

as strict ly a result-o f-condu ct offe

nse was State v. Ke ith T. Dup ree , No. W1999-01019-CCA-R3-CD, 2001 Tenn . Crim. App. LEXI S 65, at *11 (Tenn. Crim. App. Jan. 30, 2001, at Jackson), no perm to app. filed ; however, Dupree was file d severa l day s after t

he trial o f this case. Furthermore, the

trial court in Dupree charged only nature of the conduct and circumstances surrounding the conduct; it omitted entirely the result of the conduct element. Regar dless, as the sta

te concedes, it is now established that a knowing second degree murder is strictly a result-of-c onduct offense. Ducker , 27 S.W.3d at 896. A jur y in struction

that allow s a jury to convict on second degree murder based only

upon awareness of the nature of the c onduct or circumstances surrounding the conduct improperly lessens the state’s burden of proof. For second degr ee murder, a defendant must be aware tha t his or her conduct is reasonably certain to cau s e death. See Tenn. Cod

e Ann. § 39 -11-302(

b); Dupree , supra . C. Suggest

ed Jury Inst

ructions A correct ju ry

instructi on for kno wing se cond deg ree mur der in thiscase would be as f ollows: Any person who commits second degree murder is gu ilty of a crime. For you to find the defe

ndant guilty of this off

ense, the state must have proven bey ond a reasonable doubt the existence of the following essentia l element s: (1) that the defendant unlawfully killed the alleged victim; and (2 ) t ha t t he de fe nd an t a ct ed kn ow in gl y.2 Premeditate d fir st degree murde r requi res not onl y that the ki ll ing be “int enti onal, ” but als o that the de fendant act with a “prem editated” mental state. Tenn. Co de An n. § 39-13-2 02(a)(1) ( 1997). “Premedi tation” i s def ined by statute. Id . at (d). W e con clud e the “ inten tiona l” culp able mental st ate of pre meditated fi rst degree mu rder relates to the result of t he conduct , j ust as the “knowing” c ulpabl e mental st ate of second de gree murder rel ates to t

he res ult of the conduct . Accor dingl y, our suggest ed jur y charge for premeditate d firs t degree murder deviat es from T .P.I. - CRIM 2.08 and 7 .01(b) (5 thed. 2 000 ) by deletin g the refere nce to the n ature of the defe nda nt’s co ndu ct. -9- "Knowingly " meansthat a pe rson act s with an a

warene ss that [his] [her] conduct is reasonably certain to cause the death of the alleged victim. The req uiremen t of "kno wingly " is also e stablishe d if it is shown that the defendant acted “intentionally .” "Intentionally " means that a person acts intentionally when it is the person's conscious objective or desire to cause the death of the alleged victim. In addition to

knowing second d egree murder, we also

believe that voluntary manslaug hter, reckle ss homicide and criminally neg ligent homicide are result-of-conduct off enses. Accord

ingly , the trial court erred by

referring to the

prior definitions of “knowing” and “intentional” in defining t hese offenses since the prior definitions included the nature of the c onduct and circumstances surrou nding the conduct. Although this is moot as it relates to these lesser-included offens es, w e note the error for guidance upon retrial. For further guidance to the bench and bar, we are attaching as an Appendix what we believe t o be proper jury char

ges on premeditated first degr ee murder, 2 knowing second degree murder, voluntary manslaug

hter, reckless homicide and criminally negligent homicide. D. Harmless Error We must now determine whether the erroneous jury

instruction was harmless, as argued by the state. We first examine the appropriate standard of review. (1) Standard of Review A defendant has the constitutional right to complete and acc u rate jury instructions on the law; the failure to do so deprives a defendant of the constitutional right to a jury trial. State v. Teel , 793 S.W.2d 236, 249 (Tenn. 1990). The omission in jury ins tructions of an element o f the off ense is subject to constitutional harmlesserror a naly sis; namel

y, w hether t he state can prov e harmle ss error beyond a reasonable doubt. State v

. Walker , 29 S. W.3d 8 85, 89 3 (Te nn. Cr im. Ap p. 199 9). We conclude an erroneous jury instruction, which misstates the applicable conduct element of an offense and lessens the state’s burden of proof, islikewise

subject to

constituti onal har

mless err or analy sis.-10- (2) Stat e’s Arg ument The state contend s t hat defe ndant’s r eliance upon self

-defen se rende

rs the er ror har mless beyond a reaso nable dou

bt. Even if

the defendant relied upon self-defense , we fail to see how this would necessarily

be determinative of thi s issue. Regardless, defense counsel in final ar gument conceded the killing w as not justi fied and , as to self-defe nse, stat ed, “I ’m not go ing topull your leg. I don’t think there’s enoug h there.” Accordingly , we reject the state’s contention.

(3) Trial Issues We recog nize that in

many , if not most , homic ide trials, the mens rea jury instructions utilized in this case would be harmless error. I f a victim is shot at point blank range with a twelve gauge shotgun while asleep, and the defense is the defendant was not the shooter, then the erroneous instruction would likely be harmless. I n such a situation, mens rea is no t a disputed i ssue at tr ial. Si mi la rl y, if causation is not disputed in a homic ide trial , the failure to instruct the jury on causation may well be ha

rmless. See State v. Farner, 66 S.W.3d 188, 206 (Tenn. 2001). Here, the mens rea of the defendant was indeed the disputed issue at trial. Since the defendant conceded an unlawful and unjustified killing, the only real issue at trial was the degree of homicide committed by the defenda nt. The defense theory

was that the defendant was intoxicated, didnot intend to hit the victim in the head, and did not intend to hit the victim “that hard.” The essence of the defense theory was that this was not a “knowing killing,” not a seconddegree murder, but was a criminally ne gligent homicide. The state countered in its argument by specific ally

and improperly re

lying upon

the nature of the conduct

a nd circu

mstance s surrounding the conduct, and conte

nded it wa s not requ

ired to prove the defe

ndant’s a warene ss that his c onduct wa s reason ably certain to cause death. The state’s argument was subsequently , and erroneously , fully justified by the jury char

ge. Since the only real

issue at trial was the degree of homicide c ommitted, which in turn rested upon the mens rea and appropriate conduct element, we are unable to conclude the erroneous jury instruction was har

mless bey ond a rea sonable

doubt. Ac cordingly, we must reverse and remand for a new trial.

CONCLUSION This court fully r

ealizes th e com plexi ty a nd pract ical pro blems for the bench and bar

in ascert ainin g, arguing and charg ing the prope r mens rea and its applicable conduct elements for criminal offenses. It further appears to this panel that comprehensive revisions of pattern jury3 We reco gniz e that ju ry ins tructio ns on offen ses oth er th an ho mi ci de s ma y need re visi ons. We cauti on the

ben ch an d ba r that th is opin ion a nd su gge sted ju ry ins tructio ns on ly ad dress certain hom icide o ffen ses. -11- in st ru ct io ns ma y we ll be ne ce ss ar y. 3 Nevertheless, we believe the Tennessee st

atutes, mo deled in large part after

the American Law

Institute’s Model Penal

Code, must b e followed and dema nd this result. See Model Penal Co de § 2.02(2) (defining the culpable mental states with reference to nature of the conduct, circumstances surrounding the c onduct, and result of the conduct). Our criminal code is similar to the code adopted in Texas. See Tex. Penal Code §§ 6.02, -.03 (2 002) (cont ainin g mens rea and conduct elements similar to those in Tennessee). Texas has confronted

simi lar pr oblem s rega r ding jury instructions on nature of the conduct, circumstances surrounding the conduct, and result of theconduct. See Cook v. Stat e , 884 S.W.2d

485, 4 90 (T ex. Crim. App. 1994) (finding error in jury charge on murder and voluntary manslaughter, both of which are result-of-conduct offenses, which did not limit “intentionally and knowi ngl y”to result o nly la nguage a nd remanding to Court of App eals for harmlesserror a

naly sis); Barcenes v. State , 940 S.W.2d 739, 743-44 (Tex. App. 1997) (holding defendant charg ed with murder, a result-of-conduct offense, is entitle d to have d efinition s of “inte

ntionally and knowingly” limited to result on

ly lan gua ge, but fin di ng t he e rro r ha rml ess ). It appear s we, like Texas, are unable to avoid the issue. We reverse and remand for a ne w trial.

___________________________________

JOE G. RILEY, JUDGE-12- APPEN DIX SUGGESTED

JURY CHA RGES FIRST DEGREE MURDER (PREMEDI TATED KILL ING) (FOR OFFENSES COMMITTED ON OR AFTER JULY 1, 1995) Any person who c ommits the offense of first degree murder is guilty of a c

rime. For you to find the

defenda nt guilty of th is of

fense, the state must have proven bey ond a reasona ble doubt t

he existence of the

following

essentia l element s: (1) that the defendant unlawfully killed the alleged victim; and (2) that the defendant

acted i ntent ional ly. A pers on act s int entio nally whe n it i s the p erson 's conscious objective or desire to cause the death of the a lleged victim; [A defendant’s conscious objective neednot be to ki l l a specific victim. If y ou find beyond a r

easonable doubt that the defendant intended to cause the death of a person, and that the defendant did so with preme ditation, then the k illing of another , even if

not the inte

nded vict im, would be

first deg ree mur der;] and (3) that the killing was premeditated. A premeditated act is one done after the exercise of reflec tion and ju dgment. Premeditation means that the intent to kill must have been formed prior to the act itself. It is not necessary

that the purpose to kill pre exist

in the mind of the

accuse d for any

definite period of time. The

mental sta

te of the accuse d at the tim

e [he] [she] a

lleged ly d ecided t o kill must be carefully

considered in order to determine whether the accused wa s sufficiently free from excitement and passion as to be capable of premeditation. If th e design to kill was formed with premeditation, it is immaterial that the accused may have been in a

state of passion or excitem ent when the desig n was ca rried int o effect. Furthermore, p remeditation can be found if the decision to kill is first formed during the hea t of passion, but the accused commits the act after the passion has subsided. If you find fro m the proo f beyond a rea sonable doubt that

the defe ndant is g uilty of murder in the first degree, y

ou will so report andyour verdict in that event shall be "We, the Jury, find the defendant guil ty of murder in the fi rst degree". [If you so find, then it shall be y our duty after a separate sentencing hea ring to determine whether the defendant will be sentenced to death, life imprisonment without the possibility of par ole, or life in prison, but you will not consider punishment for this offe nse at this time.]-13- SECOND DEG REE MURDE R (KNOWING KILLING OF AN OTHER) Any person who c ommits second degree murder is guilty of a crime. For you to find the

defenda nt guilty of this offe nse, the state must have proven beyond a reasona ble doubt t

he existence of the

following

essentia l element s: (1) that the defendant unlawfully killed the alleged victim; and (2) that the defendant acted knowingly

. "K no wi ng ly" means tha

t a perso n acts wit

h an awarene ss that [his] [he r] conduc t is reasona bly certain to cause the deat h of the a lleged victim. The require

ment of " knowing ly " is a lso established if it is shown that the defendant acted “intentionally.” "In tentiona ll y" means that a person acts intentionally w hen it is the person's conscious objectiv e or desi

re to ca use the de ath of the

alleged victim.

VOLUNTAR

Y MANSLAU GHTER Any person who c ommits voluntary manslaughter is guilty of a c

rime. For you to find the defe

nda nt gu ilty of this offense, the state must have proven beyond a reasona ble doubt t

he existence of the

following

elements : (1) that the defendant unlawfully killed the alleged victim; and (2) that the defendant acted intentionally or knowingly; a

nd (3) that the killing resulted from a state of passion produced by adequa

te provocation sufficient to lead a reasonable person to act in an irrational manner.-14-

The distinction between voluntary manslaug hter and second degree

murder is that voluntary manslaughter

requires that the killing result from a state of passion pro duced by adequa te provocation sufficient to lead a reasonable pe rson to act in an irrational manner. "Inten tionally " means that a person acts intentionally when it is the person's conscious objectiv e or desi

re to ca use the de ath of the

alleged victim.

" Kn ow in gl y" means that a person acts with an awarene ss that [his] [her ] conduct i s reasona bly certain to cause the deat h of the a lleged victim.

RECKLESS HOMICIDE Any person who c ommits the offense of reckless homicide is guilty of a crime. For you to fi nd th e d ef

en da nt gu il ty o f thi s offense, the state must have proven bey ond a reasona ble doubt t

he existence of the

following

essentia l element s: (1) that the defendant killed the alleged victim; and (2 ) t ha t t he de fe nd an t a ct ed re ck le ss ly. "Recklessly" means that a person acts recklessly when the person is aware of, but consciously disreg ards, a substantial and unjustifiable risk that the alleged victim will be killed. The risk must be of such a nature and degr ee that its disregard constitutes a gross devia tion from the standard of care that an ordinary person would exercise under all the circumstances as view ed from the a

ccused p erson' s standpoint. The requirement of "recklessly " is also established if it is shown that the defendant acted intentionally or knowingly

. "Intentionally " means that a person acts intentionally when it is the person's conscious objective or desire to cause the death of the a lleged victim. "Knowingly " meansthat a pe rson act s with an a

warene ss that [his] [he

r] conduc t is reasonably

certain to cause the death of the alleg ed victim.-15- CRIMINALLY NEGLIGENT HOMICIDE Any person who c ommits criminally neglig ent homicide is guilty of a crime. For you to find the de

fendant guilty

of this offense, the state must have proven bey ond a reasona ble doubt t

he existence of the

following

essentia l element s: (1) that the defendant's conduct re sulted in the death of the alleged victim; and (2) that the defendant acted with criminal negligence. "Criminal neg ligence " means that a person acts with criminal neg ligence when the person ought to be aware of a substantial and unjustifiable risk that the alleged victim will be killed. The risk must be of such a nature and degree that the

failure to perceive it constitutes a gross deviation from the standard of car

e that an ordi nary per son would exercise under all the circumstances as viewed f rom the a ccused p erson' s standpoint. The requirement of

criminal negligence is also established if it is shown that the defe ndant ac te d i nt en ti on al ly, kn ow in gl y or re ck le ss ly. "In te nt io na ll y" means that a person acts intentionally when it is the person 's cons c ious objectiv e or desi

re to ca use the de ath of the

alleged victim. "K no wi ng ly" means that a p erson ac ts w ith an awa reness t hat [his] [her

] conduct i s reasonably

certain to cause the death of the alleg ed victim. "R ec kl es sl y" means that a person acts recklessly when the person is aware of, but consciou sly disreg ards, a substantial and unjustifiable risk that the alleged

victim will

be killed . The risk

must be of such a nature and degr ee that its disregard constitutes a gross deviation from the standard of care that an ordinary

person would exercise under all the circumstances as viewed from the ac cused person's standpoint.