# FILED
August 4, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE

FOR PUBLICA

TION Filed: August

4, 1997 STATE OF TENNESSEE, ) ) Appellee, ) KNOX CRIMINAL ) ) Vs. ) HON. MARY BETH LEIBOWITZ, ) JUDGE ) JUBAL CARSON, ) ) Appellant. ) No. 03-S-01-9606-CR-000 63

For Appellant: For Appellee: Christopher Van Riper John Knox Walkup Stuart & Van Riper Attorney General & Repor ter Clinton, Tennessee Michael E. Moore Solicitor General Michael J. Fahey, II Assistant Attorney Gener al Nashville, Tennessee Randall E. Nichols District Attorney General Jo Helm Leon Franks Assistant District A

ttorneys General Knoxville, Tennessee



## O P I N I O N

AFFIRMED. ANDERSON, J.1 The defendant, a Range I II persi stent offender, was sentence d to 30 year s for the aggravated rob bery, 15 y ears for each of the aggravated assaults, and 6 years f or the reckl ess endangerment. The sentences f or aggravated assault are to run concurr ently ; the sentences for the remaining o

ffenses are to

run consecuti vely, for an effect ive ter m of 51 years in the Department of Correct ion. -2- The issue presented by this appeal is whether the defendant, w ho assisted his co-defendants in committing an aggravated robbery, was criminally responsible under Tenn. Code Ann. § 39-11-402(2) for additional offenses committed by them.
The defendant, who planned the store r obbery, furnished guns and i nside information to his co-defendants but w aited in the car outside the s tore, was convicted of aggravated robbery, aggravated assault, and felony reckless endangerment. 1 The Court of Criminal Appeals affirmed the convictions, finding that the defendant was criminal ly responsible for the ac ts of his co-defendants.
After reviewing the applicable law and the ev idence, we conclude that the defendant was criminally responsible for the acts of his co-defendants under Tenn. Code Ann. § 39-11-402(2) because, in our view, the common law rule (that a d efendant who aids and abe ts a co-defendant

in the c ommissi on of a criminal act is liabl e not only for that crime but also for any other crime c ommitted by the co-d efendant as a na tural and pr

obable conseq uence of the cr ime originally aided and abetted) is applicable under the statute. W e therefore affirm the judgment of the Court of Criminal Appeals.

BACKGROUND The defendant, Jubal Carson, and two co-defendants, Aaron Gary and Alton Stover, met to discuss robbing “Jim and Dave’s TV Repair” store in Knoxville, Tennessee. C arson, who had been in the st ore before, described the layout of the store to the co- defendants and told them that a large sum of money could be found in a drawer i n a back room. Carson gav e a handgun to each of2 Gary pled guilty to attem pted first-d egree m urder an d was s entenc ed to 23 ye ars. Stover pl ed guilt

y to aggra

vated kidnappi ng and was sentenced to 21 years. -3- the co-defendants and the three men drov e to the scene. While Carson waited in the car, Gary and Stov er entered the store under the p retense of having repairs made to a portable ste reo system.
Once inside the store, the co-defendants held two employees , James Adams and Dave McGaha, at g unpoint and forced them into a room in the rear of the building. Both employees were searched and $130 w as taken from Adams. Adams and McGaha were ordered onto a couch whil e Gary and Stover searched the room. After binding Adams and McGaha with teleph one cord, Gary and Stover closed the office door, told the victims not to attempt to free themselves, and then fired three shots through the office door, nar rowly missing them. As they left the store, Gary and Stover w ere confronted by police officers

. To their surprise, neither the car, nor the defendant Carson,was in the parking lot. Gary and Stover

fled from the scene on foot, exchangi ng gunfire with officers. All three men wer e later found and arrested.
The lightning quick police response to the robber y was apparent later

. Carson and his co-defendants did not realize that “Jim and Dave’s TV Repair” store was an undercov er sting operation run by the Knoxville Poli ce Department. Unbeknownst to them, the co-defendants’ action s were monitored by police officers and recorded on video tape located in the store.
The defendant Carson was charged, along with his co-defendant s Gary and Stover. The co-defendants pled guilty and testified at

trial against the defendant. 2 Carson did not testify; however, he made a statement to police admitting that he drove th e co-defendants to the scene but deny ing that he knew a robbery would occu r. He said he believed the co-defendants were goi ng to the3 The jury al so convicted the defendant of ag gravated kid napping, whi ch the tri al court set aside post-trial under State v. Anthony , 817 S.W .2d 299 (Tenn. 1991). -4- store to sell the guns and that he was across the s treet from the store at a Hardee’s restaurant w

hen he heard shots being fired.
The jury f ound the defend ant Carso n guilty of aggravated robbery, aggravated assault against Adams, aggravat ed assault against McGaha,and felony reckless endanger ment. 3 The Court of Criminal Appeals affirmed.
The defendant argues on appeal that the ev idence was insufficient to sustain the convictions because he lacked the culpable mental state for the offenses committed by Gary and Sto ver. The State insists that the defendant was criminally responsible for the aggr avated robbery, as w

ell as the additional offenses, because they were a natural and probable consequence of the robbery.
We granted this appeal to determine the scope of cr iminal responsibility for the acts of another under Tenn. Code Ann.§§ 39-11-401 and -402.

CRIMINAL RESPONSIBILITY As part of the Criminal Sentencing Reform Act of 198 9, the Legislature determined that “a person is criminally responsib le as a party to an offense if the offense is committed . . . by the conduct of a nother for which the person is criminally responsible,” and that a person is criminally responsible for an offen se committed by another if “acti ng with intent to promot e or assist the commission of the offense, or to benefit in the proceeds or results of the offense, the person solicits, directs, ai ds, or attempts to aid another per son to commit the offense. . . .” Tenn. Code Ann. §§ 39-11 -402 and -402(2)(1991).-5- The Sentencing Commission comments to Tenn. Code Ann. § 39-11-401 explain that the statute is a restatement of the principles of Tenne ssee common law which provide equal crimi nal liability for pr incipals, accessories

before the fact, and aiders and abettors . The revis ed code d oes not u tilize these terms; instead, it prov ides that any person may be charged as a party if he or she is criminally respons ible for the perpetration of the offense. (Emphasis added). Similarl y, the Commission comments to Tenn. Code Ann. § 39-11-402(2) indicate that this portion of the statute sets forth the conduct of defendants formerly known as ac cessories before the fact and aider s and abettors.
The Criminal Sentencing Re form Act of 1989 also provides tha t the foregoing statutes “be construed according to the fair import of their terms, including reference to judi cial decisions and common law interpretations, to promote justice, and effect the objectives of the criminal code.” See Tenn. Code Ann. § 39-11-104. The Sentencing Commission com ments to the statute explain the legislative intent as follows: The commission intends the langua ge of the sections themselves to be an authoritative stat ement of the law. Since some of the terms utilized have been clearly defined by judicial decisions, those decisions and common law i nterpretations should be consu lted where necessary. . . .The comments in this code are i ntended to explain its provi sions and to aid in their i nterpretation.

Accordingly, it is evident that Tenn. Code Ann. § 39-11-402(2), which states that one may be crimi nally responsible if he o r she “solicits, dir ects, aids or attempts to aid another person to c ommit [an] offense,” is derived fro m common law. An aider and abettor, for instance (sometimes referred to as a principal in the second degree), was one who advised, counsel ed, procured, or encouraged the principal to commit the offense and w as present at the scene of the cri me.-6- Flippen v. State , 211 Tenn. 507, 365 S.W.2d 895 (1963). The common law requirement that the defendant be pres ent at the scene included “cons tructive” presence, which does not require a stri ct, actual, immediate presence,such a presence as would make him an eye or ear witness of what occurs, for if the abettor, at the time of the com mission of the crime, were assenting to it, and in a situation where he might render some aid to the perpetrator, ready to give it if necessar y, according to an appointment or agreement with him for that purpose, he would, in the judgment of the law, be pr esent and aiding in the commis sion of the crime. . . .
Cavert v. State , 158 Tenn. 531, 14 S.W.2d 735, 738 (1929).
Criminal responsibili

ty for another under Tenn. Code Ann.§ 39-11-402(2) also requires that a defendant a ct with a culpable mental state, specifically, the “intent to promote or assis t the commission of the offense or to benefit i n the proceeds or results of the offense.” A person acts with intent as to the nature or result of cond uct when it is that p erson’s conscio us objective or des ire to engage in the conduct or cause the re sult. Tenn. Code Ann. § 39-11-302( a)(1991); see also State v. Maxey , 898 S.W.2d 756, 75 7 (Tenn. Crim. App. 1994). This statuto ry language is also sim ilar to com mon law: In order to aid and abet another to commit a crime, it is necessary that [the] accused in some sort associate himself with the venture, act with knowledge that an offense is to be committed, and sha re in the crimina l intent of th e principal in the first

degree; the

same criminal intent must exi st in the minds of both.
See Jenkins v. State , 509 S.W.2d 240, 245 (Tenn. Crim. App. 1974). In other words, under common law , a defendant “must knowingl y, voluntarily , and with common intent unite with the principal offende rs in the commission of the crime.” State v. Foster , 755 S.W.2d 846, 84 8 (Tenn. Crim. App. 1988).
Although not specifically addressed in the statute, the s cope of criminal responsibility for acc

essories before the fact and aiders and abettors under the4 See e.g. , United St ates v. Andrews , 75 F.3d 552, 556 (9th Cir.), cert

. denied , 116 S.C t. 1890, 13 5 L.Ed.2 d 183 (1 996); Unite d Sta tes v. Pow ell , 929 F.2 d 724, 72 6 (D.C. C ir. 1991); Roy v. UnitedStates , 652 A.2d 1098, 11 05 (D.C . App. 199 5); State v. Tra ckw ell , 458 N.W.2d 181, 184 (Neb. 1 990); Shepp ard v. State , 538 A.2d 773, 774 (Md. 19 88); State v. Lins cott , 520 A.2d 1067, 1069 (M e. 1987) ; State v. Marchesano , 783 P.2d 247, 253 (Ariz. App. 1 989); Karlos v. S tate , 476 -7- common law was addresse d by this Court in Key v. State , 563 S.W.2d 184, 186 (Tenn. 1978). The Key court stated the general c ommon law rule as follow s: The common purpose need not be to commit the

particular

crime which is committed; if tw o persons join in a purpose to commit a crime, each of them, if actually or constructively present, is not only guilty as a princi pal, if the other commits that par ticular crime, but he is also guilty of any other crime committed by the other in pursuance of the common purpose, or as a na tural or probable consequence thereof

. (Emphasis added).

This com mon law

princi ple was

illust rated i n the lat

er Tennes

see case of State v. Gr

ooms , 653 S.W.2d 271 (Te nn. Crim. App. 1983). The female defend ant and t wo armed co -defen dants ca rried out the robbe ry of a pha rmacy by forcing employees and customers into a back room, w here they bound and robbed them. During the robbery, two additional customers entered the store who were shot by a co-defendant. As the defendant and co-defendants fled the scene, one of the co-defendants fired shots at the pursuing officers. The defendant was convicted of armed r obbery, assault, and assaul t with intent to murder. In affirming the conv ictions, the Court of Cri minal Appeals said: The crimes of which defendant says that she had no inte nt, were all committed as a part of the common purpo se of committing these robberies at the drugstor e and effecting an escape. Although she may not have had the particular intent to commit some of th ese offenses, they were natural and probable consequences of the common purposes of robbery with firea rms . Id ., at 275 (emphasis added).
The “natural and probable conseq uence” rule has been widel y accepted and applied by other jurisdictions. 4 It is based on the recogni tion that “aiders andN.E.2d 819, 822 (Ind. 1985 ); State v. Ivy , 350 N.W .2d 622, 6 28 (W is. 1984); People v. Kessl er , 315 N .E.2d 29 , 32 (Ill.), cert

. denied , 419 U.S. 1054 (1974).

5 The principl e also has been appl ied to accompli ces under the fel ony murder doctri ne: “A defendant who i s a will ing and acti ve parti cipant i n a robbery b ecomes accountable for al l of the consequences flowi ng from the robbery and may be convicted of fir st-degree murder where a coperpetrator of the felony is the actual kill er.” Stat e v. Mi ddleb rooks , 840 S.W.2d 317, 336 (Tenn. 1992); Dupe s v. State , 209 Tenn. 506, 512, 354 S .W.2d 45 3, 456 (1962). -8- abettor s should b e respon sible fo r the crimi nal harm s they have naturall y, probably and foreseeably put in motion.”
The California Supreme Court has expressed it this w ay: “[A] person who aids and abets a confederate in the c ommission of a criminal act is liable not only for that crime (the t arget crime), but also for any other offense (nontarget crime) committed by the confederate as a ‘natural and probable consequence’ of the crime originally

aided and abetted.” The rule freq uently has been applied to offenses that are a natural and probable consequence of a planned armed robbery. People v. Prettyman , 926 P.2d 1013,1015, 1019, 1021 (Cal. 1996); see also State v. Gr

ooms , 653 S.W.2d at 275; State v. Marchesano , 783 P.2d at 253; Sheppard v. State , 538 A.2d at 775. 5 A “‘natural and probable consequence’ in the ‘ordi nary course of things’ presupposes an outcome withi n a reasonably predictable range.” Roy v. United States , 652 A.2d 1098, 1105 (D.C. App. 1995).
We recognize, as have other court s, that the common law rule has been subject to criticism by

some commentators, primarily for being too broad. See LaFave & Scott, Substantive Criminal La w , § 6.8(b), p. 158 (1987 & Supp. 1996); Mod. Pen. Code § 2.06 (1985). I t continues, however,to be applied by the majority o f courts under a var iety of st atutes go verning crim inal resp onsibili ty, and a number have observed th at the doctrine is an establi shed rule of American jurisprudence. Moreov er, we note that many stat es have codified the common6 See Iowa Code Ann. § 703. 2; Kan. Stat . Ann. § 21-320 5(2); Me. Rev. Stat. Ann. tit.17- A, § 57; M inn. Stat. An n. § 609.0 5; W is. Stat. Ann . § 939.05

. -9- law rule. 6 In our view, the r ule continues to be a viabl e principle underlyi ng criminal responsi bility.
As we have frequently

observed, the Legislature is presumed to know the existing state of the law when it enacts a statute. Owens v. State , 908 S.W.2d 923, 926 (Tenn. 1995). Moreover, the Legislature has said that statu tes must “be construed according to the fair import of their terms,including reference to judicial decisions and c ommon law interpretations.. . .” Tenn. Code Ann. § 39- 11-104.

In our view, the Sentenc ing Commission comments to Tenn. C ode Ann. §§ 39-11-401 and -402 clearly indicate the legislative intent that the statutory provisions embrace the common law principles governing aiders and abettors and accessories before the fact. The s tatutory predecessors t o these provisions likewise embraced the c ommon law definitions. See Tenn. Code Ann. § 39-1- 301 (1982)(“any person w ho shall feloniously mov e, incite, counsel, hire, command, or procure any other person to commit a felo ny is an accessory before the fact.”); Tenn. Code Ann. § 39- 1-303 (1982)(“all pers ons present, aiding and abetting, or r eady and consenting to aid and abet, in any criminal offense, shall be deemed principal offenders and punished as such.”). Accordingly, we conclude that the natural and probable consequence rule, which derives from the common law and has been applied in our case law, as well as in the case law of a majority of jurisdictions, is appl icable under Tenn. Code Ann. §§ 39-11-401 and -402.
Applying the foregoing

principles to the present case, we have determine d that the evidence was s ufficient for the jury to find that the defendant aided and7 The aggravated assault against Adams required an int entional or knowing act ca using the vic tim to reas ona bly fea r imm inent bodily in jury, as well as the u se or displa y of a d ead ly weapon. Tenn. Code Ann. §§ 3 9-13-101(a)(2) & -102(a)( 1)(B). The aggr avated assault

against McG aha requ ired a n inte ntion al, kn owin g or re ckle ss a ct ca usin g bod ily injury to the vic tim, a s we ll as the us e or displa y of a dead ly weapon . Tenn. C ode An n. §§ 39- 13-101 (a)(1) & -1 02(a)(1 )(B). The felon y reck less enda nge rm ent re quire d rec kles s co ndu ct tha t plac ed an othe r pers on in imminent danger of deat h or serious b odily injury , and the use of a deadly weap on. Tenn. Code Ann. § 39-13-103(a) & (b). -10- assisted in the offense of aggrav ated robbery, which requires evidence of an intentional theft from the person of another by violence and by

placing the victims in fear with the use of a deadly weapon. Tenn. Code Ann. §§ 39-13- 401(a) and -402(a)(1). The defendant planned the robbery, descr ibed the layout of the store, supplied weapons,and accompanied the co-defendants to the scene, where he was t

o wait in the car. The co-defendants entered the store, held the victims at gun point, and took money. Accor dingly, there was

sufficient evidence from which the jury could find that the defendan t solicited and aided in the offense with the intent to promote and benefit from its commission.

Likewise, we concl ude that the evidence was sufficient to find that the defendant was criminally responsible for the aggr avated assaults committed against the victims i nside the store and the reckl ess endangerment committed when the co-defendants fled from the scen e. 7 The defendant initiated the robbery, supplied w

eapons, and was present at or near the scene of the offense. The aggravated assaults and the reckless endangerment were committed by the co-defendants with the weap ons supplied by the defendant and in furtherance of the robbery. The offenses were the natural and probable conseq uence of the robbery th at was init iated, d irected, and aide d by the de fendan t. Accord ingly, we conclude that the evidence w as sufficient to sustain these conv ictions under Tenn. Code Ann. § 39-11-402(2).

CONCLUSION We conclude that the na tural and probable consequence rule which derives from the common law is applicable under Tenn. Code Ann. §§ 39-11-401-11- and -402, and that the evidence w as sufficient to find that the defendant, hav ing directed and aided in the aggravated robbery with the intent to promote or benefit from its commission, was criminally responsib le for all of the offenses committed by his co-defendants, to wit: aggravated assault and felony reckless endangerment.
Accordingly, the j udgment of the Court of Criminal A ppeals is affirmed. The costs of this appeal are tax ed to the defendant-appellant, Jubal C arson.

________________________________ RILEY ANDERSON, JUSTICE

CONCUR: Birch, C.J. Drowota, Reid, and Holder, JJ.