### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE February 13, 2001 Session

STATE OF TENNESSEE v. MARCUS W. KEEN ER

Direct Appeal from the Circuit Court for Lawrence County

No. 20403 Robert L. Jones, Judge

No. M2000-00177-CCA-R3-CD - Filed April 26, 2001

G ARY R. W ADE , P.J., con curring.

While I concur in th

e result, I wr

ite separately

because I believe that the trial court erred by failing to instruct the jury on the lesser included offenses of criminally negligent homicide and reckless homicide.

The trial court, of co

urse, has a

duty to give a

complete charg

e of the law applic

able to the facts of the case. State v. Harbison , 704 S.W.2d 314, 319 (Tenn. 1986). There is an obligation "to charge the jury as to all of the law of ea ch offense included i n the indictment, without any request on

the part of the defendant to do so." Tenn. Code Ann. § 40-18-110(a). Pursuant to our statute andcase

law interpretations, a defendant is entitled to jury instructions

on all lesser offenses for which the evidence would support conviction. Complete instructions allow the jury to determine among each alternative the a ppropriate o ffense, if any, for conviction and more evenly balance the rights of the defendant and the state. It is only when the record is devoid of evidence to support an inference of guilt of the lesser offense that the trial
court is relieved of the responsibility to charge the lesser crime. State v. Stephenson , 878 S.W.2d 530, 549-50 (Tenn . 1994); Sta te v . Boyd , 797 S.W.2d 589, 593 (Tenn. 1990). The guiding principle is that if there is evidence in the record from wh ich the jury could have concluded

that a le sser includ ed offense was committed, there must be an instruction for the lesser offense. See Johnson v. State , 531 S.W.2d 558, 559 (Tenn. 1975). In State v. Burns , 6 S.W.3d 453 (Tenn. 1 99 9), our supreme c ourt confirmed th

at trial judges sh

ould consider all possible lesser included offenses so as to properly confer upon the jury its fact-finding prerogatives:

First, the trial court

must determine whether any evidence exists tha

t reasonable minds could accept

a s to the lesser-inc

luded offense. I

n making this determination, the trial court must view the evidence liberally in the light

most-2- favorable to the existence of the lesser -included offense without making any judgments

on the credibility

of such evidence . Second, the tria l court must determine if the evidence, viewed in this ligh

t, is legally

sufficient to supp

ort a conviction for the lesser-included offense. This two-step ana lysis is prac

tical,

can be easily applied

by the trial courts, and remains broad enough to preserve both the State's and defendant's rights to consider any lesser-included offenses fairly raised by the proof.

Id. at 469.

In this case, there was evidence from which the jury could have concluded that the defendant was guilty

of crimina lly negligent homicide. Criminal negligence occ urs when a
person acts under

conditions such tha

t he "ought to be

aware of a subst

antial and unjustif

iable risk that the circumstances e

xist or the result will o

ccur. The risk mu

st be of such a nature and degree that the failure t

o perceive it con

stitutes a gross

deviation from the standard of care that

an ordinary

pers on would ex ercise unde r all the cir cumstances as viewed fro m the accuse d's person's standpoint." Tenn. Cod e Ann. § 39-11-106(a)(4). Here, the defendant testified that he returned to the vi

ctim's property

in order to

ensure that the de

fendant was not ov

erly angry at him and was not going to continue beating his girlfri end. R egarding his shooting of the victim, h e testifie d: "I didn't mean to kill him. I swear I didn't. I wa

s just trying

to keep him off of me." Thejury should ha ve been given the option to conclud e that the d efendant's killing of the victim was accidental and, thus, that the defe n dant was guilty of criminally neg ligent homicide. Had there been such a conviction, as unlikely as it may have been, this court surely would not have reversed and dismissed for insufficiency of supporting e vidence.

In my view, there was also evidence from which the jury could have concluded that the defendant was guilty of reckless homicide. A person acts recklessly when he "is aware of but consciously d isregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The r

isk must be of such a natur

e and degree t

hat its disregard con

stitutes a gross deviation from the standard of care that an ordinary person w ould exercise under

all the circu mstances as viewed from the accused person's standpoint." Tenn. Code Ann. § 39-11- 106(a)(31). On cross-examination, the defendant admitted that he did not believe that someone shotby a rifle like the

one he used to shoot th e victim would "be going far." The jury sho uld have been given the option to conclude that the defendant was awa r e of the substantial and unjustifiable risk

to human life posed by firing the rifle at or towards someone. There was at least some proof that the defendant behaved recklessly by returning

to the victim's property and by shooting the victim "t o ke ep [the victim] off of him." Had the jury chosen to convict of reckless homicide, this court would have surely upheld the conviction.

Nevertheless,

by application of

the standard contained in State v. Bolden , 979 S.W.2d 587 (Tenn. 19 98) , it is m y view that the error was harmless beyond a reasonable doubt. The convictions would also be upheld under the standard utilize

d in State v. Williams , 977 S.W.2d 101 (Tenn. 1998). As t

o the harmlessnes s of the error, I concur fully

in the majority

's analys is.-3- _______ ____________

______________

_ GARYR. WADE, PRESIDING JUDGE