# FILED
December 29, 1999 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE NOVEMBER SESSION, 1999

STATE OF TENN ESSEE, * * No. 03C01-9905-CR-00206 Appellee, * * HAMILTON COUNTY vs. * * Hon. Douglas A. Meyer, Judge JOHN WALTER SULLIVAN, * * (Attempted

Second Degree Murder) Appellant. *
For the Appellant : For the Appellee : Hank Hill Paul G. Summers Hank Hill & Associat es, Atto rneys Attorney General and Repor ter 701 Cherry Street, Suit e 200 Chattanooga, TN 37402 Michael J. Fahey, II Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Nashville, TN 37243-0493
William H. Cox III District Attorney General H. C. Bright Asst. District Attor

ney General 313 Courts Building 600 Market Street Chattanooga, TN 37402

OPINION FILED: AFFIRMED
David G. Hay

es, Judge2 OPINION
The appellant, John W alter Sullivan, was convicted by a Hamilton County jury of one count of attempte d second degree murder. Following a se ntencing hearin g, the appellant was sentenced t o ten years in the Department of Correction. The appellant contends that the evi dence is insufficient to support a conviction for attempted second degree murder.

After review of the evi dence, we affirm the judgment of the tr ial court.

Background
On October 19, 1997, the Hamilt on County Grand Jury returned an indictment charging the appellant with the attempted fir st degree murder of Linda Jackson. The case proceeded to tr ial on November 18, 1998, at w hich time the following proof was dev eloped.

Linda Jackson, the victi m, testified that she met the appellant at the community kitchen in Chatt anooga. Both Jackson and the appell ant were homeless. Soon thereafter, the couple began a r omantic relationship, w hich continued over several months.
On July 19, 1997, Ms. Jackson was given a ride to the Conoco convenience store by a male friend. He dropped Ms. Jackson off at the stor e and she proceeded inside the store to “get

[her] a cup of ice.” The appellant, who apparently w as in the immediate vicinity, saw Ms. Jackson and foll owed her into the store. Ms. Jackson immediately informed the cashier “to call the police becaus e he’s nagging me and he don’t [sic] supposed to be ar ound me.” The appellant left. The cashie r locked3

the door and called the police.However, approx imately five minutes lat er the cashier had to unlock the door as other customers wer e trying to enter. A

s soon as the door was unlocked, the appellant rushed into the store and “cam e at [Ms. Jackson ] with

a butche r knife. ” Ms. J ackson m oved in an attem pt to pro

tect her self, however, her attempt was futile as the appellant stabbed her in the arm. T eresa McMillan, the cashier

at the Conoco convenience s tore, corroborated the account of events provided by Ms. Jackson.
Chattanooga Police Officer James Hixson was on patro l the night of the stabbing and responded to a dis patch to the incident at the conv enience store. Upon arriving at the scene and entering the stor e, he “noticed a large amount of blood on the floor. . .” and “M s. Jackson standing there . . . [with] a towe l wrapped around her arm. . . .” Ms . Jackson informed Officer Hix son that the appellant had stabbed her. She provided Officer Hixson with a phy

sical description of the appellant. O

ther officers

located the appellant “r ight down

the block.”

At the time he was apprehen ded by t he polic e officer s, the ap pellant

had disp

osed of th e knife used in the attack.

Detective David Sow

der with the Hamilton C ounty Sheriff’s Department testified that the appellant eventually led him to the location in a nearby yard where he had disposed of the knife. Detective Sowder stated that the appellant was very cooperative and provi ded a statement. In the statement, the appe llant admitted that he stabbed Linda Jackson, his g irlfriend, at the Conoco conv enience market and that he “did it out of love.” He explained that Linda was married and that they were having an affair. The appellant also asserted that Lind a was “carrying his child.” During his statement, the appellant began crying and stated that “[he] would never do it again.”
Additionally, the appell ant stated that he “hung out” at the Conoco market,4

although he had previousl y been warned to stay

away from the store. H e did not know that Linda Jackson w as going to be at the stor e. When Ms. Jackson got out of the car of another man, the appellant app roached her and tried to talk to her. She responded that she didn’t w ant to be bothered and entered the stor e. The appellant withdrew. Shortl

y thereafter, the appellant r eentered the store; this time “[he] lost it, [he] just couldn’t take it,” and “stuck her.” The appellant then walked out of the store and left. He explained that he carried the knife on his pers on at all times for protection. He also agreed that, “at the time, he was trying to kill her.”
The night of the incident, Ms. Jackson underwent surgery on her hand. Ms. Jackson explained that, as the result of the stabbing, she can no longer “make a full fist and [she] can’t hardly lift nothing [sic], and w hen it get [sic] real c

old, it aches real bad.”
At the close of the State’s proof, defense counsel moved for a directed verdict as to the charg e of attempted first degree murder. The trial court sustained the motion and ordered that the tri al proceed on the charge of attempted second degree murder. After deliber ations, the jury announced their verdict finding the appellant guilty of attempted second degree murder.

Analysis
In his only issue, the appellant contends that the evidence is insuff icient, as a matter of law, to support a conviction for attempted secon d degree murder. He concedes that, at best, he is onl y guilty of attempted v

oluntary manslaughter. The
trial court charged the jury on both offenses and the jur y found the appellant guilty of attempted second degree murder.5 Whe n a defe ndant ch allenges the suff iciency of the convic ting evide nce, we must review the evidence in the light most favorable to the prosecution in determining whether “

any rational trier of fact could have found the essential elements of the crime beyond a reasonable doub t.” Jackson v. Virginia , 443 U.S. 307, 317, 99 S.Ct. 2781, 2789 (1979). We do not reweigh or reevaluate the evidence and are requir ed to afford the State the strongest l egitimate view of the proof contained in the record as well as all reasonabl e and legitimate inferences which may be drawn

therefrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978).
A defendant challenging the suffici ency of the evidence has the b urden of illustrating to this court why the evidence is insufficient to support the verdict returned by the trier of fact. This court will no t disturb a verdict of g uilt for lack of sufficient evidence unless the facts contained in the record and any inferences which may be drawn

from the facts are insufficient, as a matt er of law, for a rational trier of fact to find the defendant guilty beyond a reasonable doubt

. State v. Tuggle , 639 S.W.2d 913, 91 4 (Tenn. 1982).
In this case, the appellant w as convicted of attempted second deg ree murder. Second degree murder is the “knowing ki lling of another.” Tenn. Code Ann. § 39-13-210(a)(1) (1997). A person acts knowingly with re spect to a result of the person’s conduct when the person is aware that the conduct is reasonably certain to cause the result . Tenn. Code Ann. § 39-11-106(a)( 20) (1997). Attempted second degree murder may be proven by showing that the defendant “intentiona lly acted with the requis ite culpability to c ommit the offense of murder in the second degree” and the defendant “could hav e been convicted of murder in the second degree . . . if he had actually killed the victims.” See State v. Dale Nolan , No. 01C01-9511-CC-00387 (Tenn. C rim. App. at Nashvill e, Jun. 26, 1997), perm. to appeal denied , (Tenn. Mar. 2, 1998) (citations omitted). See generally Tenn. Code6

Ann. § 39-12-101 (a)(1), ( 2), (3) (1997). The appellant argues that the evidence supports only a conviction for attempted voluntary manslaughter. Voluntary manslaughter is “the inte ntional or knowing k illing of another in a stat e of passion produced by adequate provocation sufficient to lead a reaso nable person to act in an irrational manner.” See Tenn. Code Ann. § 39-13-211(a) (1997).
Whether the acts of the appellant constitute a “kn owing” attempt (second degree murder) or an attempt due to “adequate provocation” (voluntary manslaughter) is a ques tion for the jury. State v. Johnson , 909 S.W.2d 461, 464 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1995). The proof at trial established that the appellant c onfronted the victim at the Cono co market after he saw her exit the v

ehicle of another man. Ms. Jack son sought assistance from the store cashier and the appell ant retreated. Sometime thereafter, the appellant reentered the store and stabbed the victim. There is no pr

oof that the victim said or did any th ing to provo ke the ap pellant . Additio nally, he l ater adm itted to D etective Sowder that he was tr

ying to kill the v

ictim at the time of the incident.
Accordingly, w

e conclude, as a matter of law , that the evidence is suffici ent to support a finding by the j ury that the appellant is guilty of attempted second deg ree murder. Tenn. R. App. P. 13(e). The judgment is affirmed.7 ____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

________________________________________ ALAN E. GLENN, Ju dge

________________________________________ JOE H. WAL KER, III, Specia l Judge