### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs A pril 9, 200 2 STATE OF TENN ESSEE v. WALTER WILSO N Appeal from the Criminal Court for Shelby County No. 99-13438-39 Joseph B. Dailey, Judge

No. W2001-01463-CCA-R3-CD - Filed Septem ber 4, 2002

Walter Wilson, the defendant, was convicted of seco nd-degree murder, felony murder, and attempted especial lya ggravated robber y by a Shelby County

jury. The jury

sentenced the defendant to life w ithout the possibility of parole for the f elony-murder

conviction, and the trial court impos ed a consecutive, ten-y

ear sen tence in the Depa

rtm e nt of Corr

ection f or the at tempted e specially aggravated

robbery. On appeal, the defendant contends that the evidenc e was insufficient to support his conv ictions, that applicable lesser-included offenses wer e not charged to the jury , and that consec utive sentenc ing is inappropriate because he is not a dang erous offender. We affirm the attempted especially a

ggravated robbery c onviction, but we reverse and remand for a ne w trial on the homic ide count s based on the failu re to instr uct on les ser-inc luded off enses.
Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed in Part, Reversed in Part, and Remanded for a New Trial in Part.
J AMES C URWOOD W ITT , J R ., delivered the opinion of the court, in which D AVID H. W EL LES an d D AVID G. H AYES , JJ., joined.
A.C. Wharton, Jr., District Public Defender; W. Mark Ward, Assistant Public Defender (on appeal); and Trent Hall, Assistant Public Defender (at trial), for the Appellant, Walter Wilson.
Paul G. Summers, Attorney Gene ral and Reporter; Kathy

D. Asling er, Assis tant Attor ney Genera l; William L. Gib

bons, Distr

ict Attorn ey Genera l; a nd Steven Jones and Amy Weirich, Assistant District Attorneys Gene

ral, for the Appellee, State of Tennessee.

OPINION
On May 22, 1999, in a Memphi s alley near the intersection of Ma

jorie and Shamrock, Derrick By num was sh ot in the he ad as he w as sitting in his pick-up truck. Mr. By num, who was 27 yea rs ol d a t t he ti me , h ad le ft ho me to go to wo rk ab ou t 5 :3 0 a .m . H e w as di sc ov er ed by a neighborhood

resident later that morning inside his pickup truck, w hich ha d come to r est aga inst-2-

someshrubbery a

pproximately 434 feet from the sce ne of the shooting. The back windo w of t he truck was broken out, but

the front windshield was intact. Mr. By num was transported by

ambulance to a nearby

hospital where he died the following day . A res ulting a uto psy identified the ca

use of death as a single gunshot wound to the left ey e that entered the victim’s brain.
Fifteento seventeenMemphis police officers participated in the investigation. They canvassed

the neig hborhood for info rmation a bout the ho micide. B ased on d ebris and tire marks, the po li ce tr ac ed th e p at h o f t he tr uc k a nd de te rm in ed th at th e s ho ot in g o cc ur re d i n C he st nu t A ll ey. Latent finger

prints lifted from the victim’s truck could not be identified.
In the light most favorable to the s tate, the ev idenc e at tr ial sh owed t he fol lowi ng. While in the alley are a of the shooting, Patrol Officers Delbert Polk and De

rrick Wilk s saw fou

r male individua ls on the front

porch of a nearby

residence. The residence was located at 1657 Victor, a nd it faced the alley . The officers walked up to th e men on the porch to see if they had any pe

rtinent information. The officers identified the men as fift een ye ar-o ld Bran don McKin ney , Demari o Wilson, Aubrey Ushera, a nd Damien Wilson. Ushera and the Wilsons l

ived at the reside

nce with their olde r brothe r, the defendant

. Officer Polk testified at trial that McKinney appe ared very nervous and would look elsewhere whenever he

was asked a question. McKinney was sitting on a red couch on the porch, and Officer

Polk told him to stand up. When McKinney stood, Offic er Polk said that he observed a block-shaped object in the right front pocket of McK inney’s pants. A

subsequent pat down and s earch uncover ed a .25 s emi-auto matic handgun in M cKinney ’s pocke t. The othe

r me n wer e searched, but no other weapons were discovered. McK inney washandcuffed and transported to the poli ce stat ion fo r ques tion ing.

BrandonMcKinney testified f or the state at trial. At the time of theshooting he was living with his grandmother at 759 Cherokee. He testified that he got up on May 22, 1999 and that his brother, Christopher Holt, came by the house and wanted McKinney to walk to

the store. Along the wa y, t he bo ys encountered the defendant’s brother , Aubrey Ushe ra, who asked

McKinney to buy him some juice at the store. McKinney did so, and he stopped at the ho use on Victor to give the juice to Ushera. McKinney testified that

Demario Wilson was sitting on the red sofa on the porch. McKinney sat down with Demario Wilson, and everyone else went inside the house.
About 8:30 a.m., the defendant walked down the street

to the house and went inside. McKinney

testified that the defendant’s brother, Damien, addressed the defendant and said, “You know, you ki ll ed th at ma n. ” A cc or di ng to Mc Ki nn ey, the defendant replied, “I didn’t mean to do it.” McKinney fur

ther testified tha t the defen dant acted scared and kept repe ating that he “didn’t mean to do it.” Ushera tried to reassure the defe ndant that he was going to be alright, and Ushera told the de

fendant to “calm d

own.” The defendant then went into the back room to get

dressed to go to a funer

al. Although McKinney

said that he never heard the defenda nt explain why he shot the victim, he did overhear others talking ab ou t the shoot ing while the defe ndant wa s in the ro om. McKinney

testified that what he heard was that the defendant “was try ing to rob the man, and that1 W hen the victim’s truck was sear ched, the police found an un loaded weapon ins ide a box and a bl ue cooler containing ma rijuana and a set of scales. -3- the man said

‘F-y ou,’ or

something like that. And when he said that, [the victim] tried to back out the driveway

– or pull out the driveway, tha t [the defendant] just shot him.” McKinney

testified that he also overheard the de fendant as k Ushera if Ushera had hidden the gun. Ushera

told the defendant that he had not. “I ’m still trying to find a place to hide it.” Ushera took the gun and put it in the attic, but he soon retrieved it. Ushera

emptied th

e bullets from the gun; he cleaned

the gun and

put it and the bullets inside a paper bag. McKinney testified that Ushera told him to ta

ke the ba g and di spose of itin the

abandone d hous e next

door. McKinney said that he did as he was told. After the defendant dre ssed, he left to attend a funera l. McKinney and the others at the house went outside to the porch. McKinney testified that the police were in the area at the time, and the police eventually walked up to the house and began asking questions. McKinney

admitted at trial that he was very nervous when the police came up to the porch. When the police discovered his gun a nd placed him in a cruiser, McKinney at first denied knowing anything

about the shooting. McKinney testified that one of the officers commented that because the house was facing the alley , someone should have heard something. McKinney cla imed that he was asleep. An officer remarke d, “Well, I’ve got a .25 a utomatic and a dead body .” At that point, McKinney testified that he became very scared and “started telling the police e verything .”
Th e police found the murder weapon in the abandoned house identified by McKinney

. Agent Teri Arney

with the firear

ms identif ication unit of the Tennesse e Bure au of I nvestig ation test firedthe gun, and she gave her opinion attrial that

the bullet recovered from the victim’s body was fired by the r

ecovered gun. Sergeant James Ry all was the case officer assigned to the homicide. He participated in interviewing McKinney at the police station. He testified that after talking with McKinney and after finding the murder weapon, the i nvesti gation focused upon the defendant and his brother , Ushera. Office r Thurma

n Ri chardso n was gi ven the ta sk of loca ting and arresting the d

efenda nt. Officer Richa rdso n found the

defe ndan t the next day at an a

partment in Hurt

Village. The defendant was visiting his sister, Torina Ushera, and his nephew.

Torina Ushera testified at trial that both the defendant and Aubre y Ushe r a spent Saturday night wit h her. The defendant admitted to her that he shot a man. He told her that he shot the man “for some dope so he could get the lig hts back on.” 1 Accord ing t o Torina Ushera , the defendant also told her that A

ubrey Ushera was not inv olved in

the shooting but

that McKinney wa s withhim when th

e victim w as shot. Torina Ushera said that both she and Aubrey Ushera urged

the defendant “to turn himself in.”

When the po lice a rrive d at Hu rt Vil lage on Su nd ay, they located the defendant and Aubrey Ushera in different apartments. Sergea nt Ryall testified that as office rs escorted the arrestees-4-

outof the apartments, Aubrey Ushera started screaming that he was “wasn’t going to take a c harge” for his br other and “head -butted”the defe ndant. Aubrey Ushera was never charg ed in connection with the victim’s homicide. He testified for the state at trial. He explained that on May 22, he wa s living with the defendant and two other brother s at the house on Victor. At a pp ro xi ma te ly 4 :00 a.m., the defendant came home. Ushera testifie d that the

defenda nt said th at th er e w as a t ru ck in th e a ll eyw ay. The def endant to ld Ushera that he was going to rob the truck driver , whereupon the defendant grabbed a gun

from the table and left the house. As for the defendant’s motive for the robbery , Ushera testified that the defendant said, “For some dope money .”

Aubrey Ushera said that he heard one gunshot after the defendant left. The def endant came back to the house, and Ushera testified that the defendant put the gun on the refrigerator, left to have his hair cut, returned to the house, dressed, and depa rted to attend the funeral of “Big Stein.” Concerning the murder weapon, Ushera testified that afte r the d efendant

had his hair cut, the defend ant “came through there with a pape r sack and told Brandon [McKinney ] to get rid o f th e gun.” Ushera admitted that he placed the gun i n the sack and g ave it to McKinney to dispose of pu rsuant to the defendant’s instructions. Ushera identified the gun a t trial as belonging to the defenda nt. Regarding what happene d in the alley, Usher a testified that the defendant told him that “the guy seen him coming, and the guy backed up” whereupon the defe ndant “got in front [sic] the truck and shot, and he came – ran back down to the house .”

The defenda

nt did not testify at trial, nor did he pre sent any evidenc e in defense. The jury deliberated and found t he defendant guilty of the lesser-included offense of sec ond-degree murderon th e f

ir st co un t, gu il ty o f f

el on y mu rd er as ch ar ge d i n t he se co nd co un t, an d g ui lt y o f attempted especially a

ggravated robber

y as separa tely charge d. Fol lowi ng a separa te penal ty- phase trial, the jury

sentenc ed the defendant

to life wit

hout the po ssibility

of parol e for

the felony-murde

r conviction. On the attempted especially aggravated robbe

ry conviction, the trial court sentenced the defendant as a Range

I off ender to te n ye ar s i nc ar ce ra ti on to be se rv ed co ns ec ut iv el y to hi s fel on ymurder sentence.

This appeal ensued.

I. Sufficiency of the Evidence
In hislead issu e, the defendant claims that the evidence is insufficient to show that he is guilty of first-de gree murder, second-de gree murd er, or at tempted especially a ggravated robbery . The def

endant a sserts that his convictions are based solely upon various admissions that he allegedly

made to Aubrey

Ushera, Torina Ushery , and Brandon McKinney

. It is conceivable, according to th e d ef

en da nt , t ha t e it he r A ub re y Us he ry o r M cK in ne y ac tu al ly c ommit ted the homicide and that their

testimony

was a bla me-shift ing atte mpt to avoid

their own culpability for the offense s. Reviewing courts do not second guess the decision s of juro rs who, with proper instruction, are charged with sorting through a my

riad of oftentimes conflictingfacts and inferences2 W e are a t a loss to u nde rstand why the re cord conta ins only a typewr itten set of

inst ructi ons. The absenc e of a verb atim tran script o f the trial co urt’s cha rge is a p ersistent d eficienc y in app ellate rec ord s from Shelb y Co unty. (con tinued ...) -5- to arri v e at a verdict. Reviewing courts do not handica p the various interpretations that could be drawn from the evidence at trial and do notreplay a

nd reweigh the evidence. See State v. M atthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Ra ther, ap pellate courts, confronted with evidence insufficiency

cl ai ms, survey the evidentiar y landscape s, including the direct and circumstantial contours , from the vantage point most agreeable to the prosecution. From those survey s, reviewing courts then decide whether the evidence a nd the inferences that flow therefrom permit any ra

tional factfinder to conclude bey ond a reasonable doubt that the defendant is guilty

of the charged

crime. See Tenn. R. A

pp. P. 13(e ); Jackson

v. Virgini a , 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92 (1979) (“Oncea defendant has been found guilty , . . . the factfinder’s role . . . is preserved throug h a legal conclu sion that upon judicial r eview a ll of the e

vidence is to be co nsidere d in the lig ht most favora ble to the prosecution. The criterion thus impinges upon ‘jury ’ discretion only to the extent necessary to guarantee the fundamental protection of d ue processof law.” ); State v. S mith , 24 S.W.3d 274, 278 (Tenn. 2000).

It follows that witness credibility, the weig ht and value of the evidence, and factual disputes are entrusted to thefinder of fact, not the appellate courts. See State v. M orris , 24 S.W.3d 788, 795 (Ten

n. 2000). “A guil

ty v erdict b y th

e jury , approv ed by

the trial j udge, accredits the testimonyof the wit

nesses f or the Sta te and resolves all conflicts in favor of the theory of the State.” State v. Grace , 493 S.W.2d 474, 47 6 (T enn. 1973). Moreover, because a c onviction destroys the presumption of innoce

nce and replac es it

with a presumption of guilt, a convicted defendant bear s the heavy burde

n of showing that the evidence was leg ally insuffi cient. See State v. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). The defendant concedes as much on a ppeal when he writes in his brief that he “canno t argue to this Hono

rable Cou rt that the re is abs olutely

no evidence to support his conviction[s] in light of testimony regarding [his] alleged statements of admission.”
We accept the conces sio n and consider it to accurately reflect the state of the evidence and the record before us. A rational juror c ould reaso nably acc redit the testimony of the state’s witnesses that the defendant left his house, gun in hand, with the preconceived plan of robbing the driver of the truck in the nearby alley. The dr

iver tried to escape from the alley , but before he could do so, the de

fendant fired a single s hot that str

uck the vi ctim

in the he ad and led to the victim’s eventua l death. T

his evide nce suff ices to su pport the defenda nt’s conv ictions.
II. Omitted Instructions on Lesser-Included Offenses
Th e defendant next insists that the jury instructions were incur ably deficie

n t wit h respect to the app licable lesser-include d offenses for the premeditated first-deg ree murder charge

and for the felony-murde

r charge. We do not have befor e u s a verbatim transcript of the trial court’s actu al charg e to the jury. We are relegated to reviewing

a typewritten se

t of jury instructions that presumably wa s read to the jury in this ca se; the state, we note, does not contend otherwise. 22 (.. .cont inu ed) We have previously cri ticized thi s practice, and i n State v. Dedonnas R. Thomas , No . W20 00- 014 65- CCA- R3- CD, slip op. at 8 (Tenn. Crim. App., Jackson, Jan. 30, 2002), we stat ed, “Fai lure t o incl ude a tra nscri pt normall y waiv es revi ew of appellate iss ues pert aini ng to ju ry i nstructi ons beca use wi thout a c omp lete rec ord , it is impos sible for this cou rt to discern whether

the wr itten jury inst

ructi on conforms t o the i nstructi ons as re ad to the jury an d thus , whe ther error actua lly occur red. ” The prac ti ce of omitt ing a t

ranscr ipt of

thi s cruci al phase of th e tri al, w e agai n caut ion, shoul d be disc onti nued.

3 Follo wing the trial of this ca se, Co de se ction 4 0-18 -110 was sub stantiall y rewritt en by th e legi slat ure. Effective January 1, 2002, the amended stat ute, in pert

inent part, requir es a wri tten request for a lesser-included offense instruct ion, such tha t if a “defendan t fa ils to reques t th e inst ructi on of a l esser incl uded offense as requir ed by this section, such i nstructi on is wai ved.” See Tenn. Cod e Ann. § 40-18-110 (Supp. 2001 ). -6- The defenda

nt was ch arged

in this case

in separ ate coun ts with premeditated, f

irstdegree murder and felony

murder. Regarding the pre meditated, first-degree murder cha rge, the trial court instructed the jury only

on second-degree murder as a lesser-included offense. No l esser
included offenses were charg ed for felony murder

or attempted especially

aggravated

robbery. The juryc onvicted

the defe ndant of s econd-d

egree murder, felony

murder, and atte

mpted esp eciall y ag gr av at ed ro bb er y.

The defendant maintains that for both premeditated and felony murder, the trial court should have pro vided les ser-in cluded o ffense instructions on second-degree murder, voluntary manslaughter, reckless homicide, and criminally neg ligent homicide. Although the defendant does notin cl ud e t he at te mp te d e sp ec ia ll y ag gr av at ed ro bb er y convict ion in his complaint about the omission of lesser-included offense instructions, our review will also include that offe nse. The state, for its part, agrees that the homicide off enses listed by the def

end ant are legitima te lesser- included

offense s, pursua

nt to the te st

formulatedin State v. Burns , 6 S.W.3d 453 (Tenn. 1999), a s refine d and app lied in sub sequent d ecisions , see, e.g ., Statev. Ely , 48 S.W.3d 710, 721-22 (Tenn. 2001) (second-degree murder, reckless homicide, and criminally negligent homicide are lesser-included offenses of felony murder). Nonetheless, the state ass erts, in the first instance, that the defendant has waived consideration of the issue by failing to include it in h is new-trial motion.
A. Waiver

We glean from the record that the de fendant did not reques t instruct ions on the offenses that he now urges should have been charged as lesser-include d offenses. Nor do we detect that the defendant

objecte d to the tri al court ’s propos ed instru ctions. Th ese omissi ons alone

would notforeclose review of the issue, see Tenn. Code Ann. § 40-18-110 (1997) (duty to instruct “without any request on the part of the defendant”) ( amended 2001), 3 but the defendant also did not raise the issue in his motion for a new trial. TennesseeRule of Appellate Procedure 3(e) specif ically provides that in all jury cases, “no issue presented for review shall be predica ted upon . . . jury instructions-7-

granted or refused . . . or other action committed or occurr ing during the

trial . . . unless the same was specific ally

stated in a motion for a ne w trial.” Tenn. R. Ap p. P. 3(e) . “[O]ther

wise,” th e rule conclude s, “such issues will be treated as waived.” Id . Because the defendant fa iled to include the issue in his motion fornew trial, he has waived the issue on appeal. See State v. Thomas Gatewood , No. M2001-01871-CCA-R3-CD, slip op. at 9-10 (Tenn. Crim. App., Nashville, June 5, 2002) (raising lesser-included instruction error f or first time on appeal resulted in waiver).
B. Plain Error Recognizing his predi cament o n appea l, the defendant urges us to conclude that the failure to instruct on the lesser-included offenses constitutes plain er ror. Crim inal Proc edure Rule 52(a) states that “an error which has affectedthe substantial rights of an accused may be noticed at any time , even thou gh not raised in the motion for a new trial or assigned as error on a ppeal, in the discretion of the appellate court where nece ssary to do substantial justice.” Tenn. R. Crim. P. 52(a). I n State v. Ad

kisson , 889 S.W.2d 626 (Tenn. Crim. App. 1994), our court set forth the following prerequisites for finding plain error:

(a) the record must clearly establish what occurred in the trial court; (b) a clear and unequivocal rule of law must have been breached; (c) a su bstantial right of the accused must h ave bee n advers ely affected; (d) the accused did not waive the issue for tactica l reasons; and (e) consideration of the error is "necessary to do substantial justice."
Id

. at 641-42 (footnotes omitted). The supreme court ad opted thistest

in State v. S

mith , 24 S.W.3d 274 (Tenn. 2000), and emphasized that all five factors must be established before plain error will be recognized. Id . at 282-83.

In our opinion, whether plain error exists in this case turns on consideration (e): whether review of the error is necessar y to do “substantial justice.” As to c onsi derati ons (a ) thro ugh (d), we disce

rn no dispu

te. Althou gh we a

re deal ing with a

typ ed set of

instructi ons appa

rently providedto the jury

in connection with its deliberations, the record establishes clearly enough what lesser-included

offenses were

and were no t charg ed, and th e partie s are in a

greem ent on thispoint. Considerations (b) and

(c) are satisfied because a defendant has a substantial right of constitutional dimension to have the jury consider “all offenses supported by

the evidence,” Ely , 48 S.W.3d at 727 ( emphasisin original), and when tha t does not o ccur, th

e failur e to instru ct violate s a “cle ar an d unequivocal rule of law.” Last , conside ration (d ) is satisf ied beca use the record does not support or-8-

sugge st that the defendant was motivated by tactical reasons to acquiesce in the truncated jury instructi ons on less er-inc luded off enses. Whether review of the instructional error is nec essar y to accomplish substantial justice tu rns on the “justification” and harmless-error prong s of the Burns analysis. Once a determination is made that an offense qua lifies as a less er-inc luded off ense, the next step is t

o co nsideri f the evidence at trial “justified” an instruction on the lesser of fense. The Burns court explained this analysis in the following fashion:

First, the trial court must determine whether any evidenc e exists that reasona ble min ds coul d ac cep t as to th e le ss er- in clu ded off ens e. In making this det ermination, the trial court must view the evidence liberall y in the light mo st favorable to the existence of the lesser -inclu ded offense without making any judgments on the credibility of such evide

nce. Second, the trial court must determine if the evide nce, viewed in

this light , is legall

y sufficien

t to suppor

t a conviction for the lesser-included offense.
Burns , 6 S.W.3d at 469. (1) Burns Justificat ion Analysis Regardingthe defendant’s conviction of second-degree murde r on the premeditated, first-degree

murder charge, the question bec omes whether the evidence at trial warranted lesserincluded offense

instructi ons on voluntary manslaughter, reckle ss h omicide, and criminally neg ligent homicide. The state

does not sp ecifica

lly address either reckless homicide or criminally negligent homicide; it argues that

a rational jury

could not find that the defendant was acting under a state of passion produced by a

dequate provocation sufficient to lead a re ason able person to act in an irrational manner.

The “justification” inquiry has been fleshed out in dec isions subs equent to Burns , the most recent of which is State v. Allen , 69 S.W.3d 181 (Tenn. 2002). From that decision, we are told that trial cou rts “must provide an instruction on a lesser-included offense supported by the evidenc e even if such in struction

is not consistent with the theory of the State or of the defense.” Id . at 187- 88. Simply stated, “[t]he evidence, not the theories of the pa rties, controls whether an instruction is required.” Id

. (a) Premeditated-murde r conviction

Under Burns part (a

), an off ense is le sser inc luded “if

all of its statutory elements are included within the statutory fr amework of the offense charg ed.” Burns , 6 S.W.3d at 467. From Allen , we learn that in dealing with a Burns part (a) lesser-included offense , the “general rule” is that “evidencesufficient to warrant an instruction on the greater

offense also will support an instruction4 In Allen , th e court s tate d that the “ general ” justifi ca tion rule f or part (a) les ser- included of

fen ses does not extend to part (c) les ser offenses. The court did not mention part (b) offens es, but no reas on pres ents it sel f wh y par t (b) and (c) lesse r-includ ed o ffenses sh ould be an alyzed differen tly. See State v. Will iam Binkley , No. M2001-004 04-CCA

R3- CD, sl ip o p. at 10 (Tenn. Crim. App., Nashvil le, Apri l 5, 2002) (n o reason t o treat part (b) and (c) of

fense s differen tly; as with part (c) lesser offenses, proof of the grea ter off ense wil l not

necessaril y prove t

he les ser of

fense under part (b)). -9- on a lesse r offen se,” bec ause

“[i]n proving the g

reater offense the State necessarily

has proven the lesser offense.” Allen, 69 S.W.3d at 188. Allen dispels the previously preva iling notion that in the Burns part (a) situation, an instruction is not required unl ess reason able minds could accept that “o nl y” the lesser offense occurred. Id . In other words, “the Burns analysis does not prec lude finding that the same evidence supports an instruction on both the

great er offe nse and the lesser offense.” Id. Second-degree murder, reckless homicide, and criminally negligent homicide are Burns part (a) lesser-included offenses of premeditated murder. See State v. R ush , 50 S.W.3d 424, 430-31 (Tenn. 2 001) (“B ecause lesser levels of the statutory hierarchy of mental states (intentiona l, knowi ng, reckle ss, and cr

iminally neglig ent) are included within the greater leve ls pursuant to Tenn. Code Ann. § 39-11-301(a)(2) (2000), an intent element whic h differs from

the intent element of the charged offense only by

one of these lower-hierarch y me ntal state s is not ac tually treated as a differing element.”). Accordingly , pursuant to Allen , an instruction on these offenses was justified and should have been given in this case.

As for voluntary mansla

ughter, in State v. Dominy , 6 S.W.3d 472 (Tenn. 1999), the su preme court referred in a footnote to the “pa ssion” language of voluntary man slaughter a s reflecting a less culpable mental state than required for first- or second-degree mur

de r. Id . at 477 n.9. Two year s later, in another footnote passage in State v. R ush , the court then stated, “[ Burns ] [p]art (b)(1) is necessary , however, when an o ffense has a differing mental state element which does notneatly fit within the hierar chy (e.g ., voluntary manslaug hter as a lesser

-include d offens e of firs t degree murder).” Rush , 50 S.W.3d at 430 n.7. Burns part (b) (1) embr aces a l esser- included

offense that “fail[s] to meet the definition in part(a) only in the re spect that it contains a statutory element or elementsestablishing (1) a different mental state indicating a lesser kind of culpability.” Burns , 6 S.W.3d at 467. 4 Because voluntary manslaughter is not a Burns part (a) lesser offense, it does not fall within Allen ’s “general” justification rule that an instruction should be given.

Here, there is s cant ev idence about the circumstances immediately preceding the discharge of the firear

m into the back

window of the victim’s truck. Brandon McKinney testified at trial that he overheard other people in the house talking about the shooting in the defendant’s presence. What McKin

ney heard w as that the

defenda nt “was tr yin g to r ob the man, and that the man said ‘F- you ,’ or some thing lik e that. And when he

said that, [the victim] t

ried toback out

the driv eway – or pull out the driveway, tha t [the defendant] just shot him.” A similar account was givenby A

ubrey Ushera at trial. He rela

ted that th

e defendant told h

im that “the guy

seen him comin g, and the guy

backed up” whereupon the defendant “got in front [sic] the truck and shot, and he came – ran back down to the house.”-10- Without judging

the cre dibility

of this evidence, as Burns cautions us not to do, we conclude tha t it is insufficient to justify an instruction on voluntary manslaughter. This evidence simply does not raise an issue that the defendant was acting under a state of passion produced by adequate provocation sufficient to lead a re asonable person to act in an irrational manner. Absent other evidence, however

implausible, reasonable minds could not find that the defendant committed voluntary manslaughter by

being adequately

provoked into a p as sionate act. See State v. William Binkley ; No. M2001-00404-CCA-R3-CD, slip op. at 10-11 (Tenn. Crim. App., Nashville, Aug. 5, 2002); State v. Robert Lee Pattee , No. M2000 -00257-C CA-R3-CD, slip op. at 10-11 (T enn. Crim. App., Nashville, May 3, 2001), perm. app. denied (Tenn. 2001). Thus the evidence does not warrant an instruction on the lesser-included offense of voluntary manslaughter.
In summary, we c onclude that as to the premeditated-murder charg e, the evidence at trial “justified” lesser-included offense instructions not limited to second-degree murder, which was given, b ut also for the Burns (a) less er-inc luded off enses of reckle ss homicide

and crim

inally negligent homicide, which were not g iven. (b) Felony-murder conviction Continuing with th e “justifica tion ” analysi s, we n ow tur n to t he felo ny-murde r charge for which no lesser-included offense instructions were given. I n State v. E

ly , 48 S.W.3d 710, 722 (Tenn. 2001), the supreme court ruled that second-degree murder , reckle ss homicide , and criminally negligent homicide are lesser -included offenses of felony murder under part (b) of the Burns test.
Alth ough Allen ’s “gene

ral” just ificatio n rule

that an instruction should be given does notap pl y in this cont ext, we neverthel ess reg ard the e vidence as suppor

ting instr uctions on

these lesser offense s. We know, based on the jury verdict on the fir st count of

the indic tm ent, th at the evidence was such as to lead a reasonable jury to conclude that the defendant committed second

degree murder. For

reckless and criminally

negligent homicide, we note that the mental states for these offenses are encompassed with the def inition of “know in g,” Tenn. Code Ann. § 39-11- 301(a)(2) (1997), which is the requisite mens rea for the most common form of sec ond-degree murder, id . § 39-13-210(a)(1) (1997) (a “knowing killing of another”). From the eviden ce in this case, the jury may

have reasonably

concluded that the defendant’s actions in shooting once toward the victim ’s truck

was crim inally neglig ent or reckless. In summary , we conclude that as to the felony -murder charge, a conviction for any of the lesser-include offenses of second-de gree murder, reckless homicide, or criminally negligent homicide was supported by t he evid ence. The evidence justified instructions on these lesser offenses, and the failure to instruct was error

.

(c) Attempted espe cially aggravated robbery conviction
As with the felony-murde r charge, the trial court g ave no instructions on lesserincluded offenses for the charged crime of attempted especially aggravated robbery . Robbery is-11-

established by p

roof of t he “inte ntional or knowing theft of p roperty from the person of

another by vi olence or putting t

he perso n in fear .” Tenn. Code Ann. § 39-13-4 01 (1997) . Use of a deadly weapon or

serious bodily injury

are the features that distin guish ag gr av at ed ro bb er y fr om ro bb er y. Id

. § 39-13-4 02 (1997) . Useof a deadly weapon and

serious b odily

injury then distinguish es pecially aggravated

robbery f

rom aggravated ro

bbery. Id

. § 39-13-403 (1997). Aggrava ted robbery

and robbery a re classic Burns pa rt (a ) l es se r- in cl ud ed of fe ns es of es pe ci al ly a ggr av at ed ro bb er y.
“Error in omitting a lesser-included offense instruction is notnegated merely

because the evidence also is sufficient to convict on the greater offense.” Allen , 69 S.W.3d at 187. A “ba sis for acquittal on the greater offe nse” need not be shown before an instruction o n the lesse r offen se is required. Id . In Allen , the defendant was indicted for ag gravated rob bery. Id

. at 184. He was convictedof the lesser-included offense of robbery. Id . On appeal, hecomplained that facilitation of ro bb er y sh ou ld ha ve be en ch ar ge d a s a le ss er of fe ns e o f a ggr av at ed ro bb er y. Id . at 187. The court rejected the proposition tha t no reason able juror could return a verdict for fa cilitation of robbery because evidence of the use of a deadly weapon was “uncontrover ted .” Id . at 189. T

he court , quoting from Burns , emphasized that “the jury, not the judg e, performs the functionof fact-finder.” Id

. To underscore its point, the court observed, “I n fact the jury

in this case rejected the proof of the use of a deadly

weapon in convicting the defendant of robbery rather than the charged of fense of aggravated robbe

ry.” Id

. From Allen we conclude that the trialcourt in th is case also erred in failing to instruct the jury, in connection with attempted e specially ag gravated robber y, o n the le sser offenses of at te mp te d a ggr av at ed ro bb er y an d a tt em pt ed ro bb er y. (2) Burns Harmless Error Analysis
Our next undertaking is to determine whether t he failure t o instruct on the lesserincluded offens es was ha rmless . As the court observed in Thomas Gatewood , “If the err or in not instruct ing . . . was harmless, it would not appear, as a practical matter , that justice would require our reviewing it. Thus, as to [plain error] consideration (e), we will asc ertain the effect of the error.” Thomas Gatewood , slip op. at 10.

The most sure- footed c ontext for a naly zing har

mless error occurs when the jury, by finding the defe

ndant guilty

of the hig hest off ense to the exclusio n of the imm ediately lesser offense, necess aril y

rejected all other lesser-included offe nses. In that context, there is gene ral agreement that the constitutional error may be declared harmless. See Allen , 69 S.W.3d at 190, 191; State v. Williams , 977 S.W.2d 101, 106 (Tenn. 1998), modified by State v. E ly , 48 S.W.3d 710 (Tenn. 2001). We are not, however, confronted with that situation. For the premeditated-murder charg e, there was no intervening lesser offense that the jury passed over in favor of a gre ater offense. The jury wa s instructed only on second-de gree murder as a lesser-included offense. For the fe lony-murder a

nd attempted especially a

ggravated robber

y charges, the jury had no

option to find the defenda nt guilty of a lesser offense because none was charged.-12- (a) Felony-murder conviction
We conclude

that the tr ial cour t’s failure to charge applica ble lesser-included offenses to the charged offense of f elony murder w as not harmless beyond a reasonable doubt. The jury in this case already

had determined with regard to the pre meditated-murder charge tha t the defendant was guilty of the lesse

r offense of second-deg

ree murder. Although consistency in verd icts for multipl e count indictments is not required, e.g., W iggins v. S

tate , 498 S.W.2d 92, 93-94 (Tenn. 1973); State v. Gennoe , 851 S .W.2d 833, 836 (Tenn. Crim. App. 1992), we cannot say with the s lightes tdegree of confidence that had the jury also been instructed on any or al l of the lesser

included offense s, it would h ave eschewed a ll of the le sser-inc luded off ense s and c onvicted the defendant of felony murde

r. The same

conclusi on has be en reac hed in othe

r decisio ns with

similar fact patterns. See Ely , 48 S.W.3d a t 727 (jur y f or defe ndant Ely given no option to convict of a lesser offense than fel ony

murder a lthough e vidence sufficie nt to suppor

t convict ion on a le sser; canno t conclude that fail

ure to ins truct wa s harmles s bey ond a rea sonable d oubt) ; Stat e v. Daniel Wade Wilson , No. E2000-01885-CCA-R3-CD, slip op. at 15 (Tenn. Crim. App., Knoxville, Aug. 2, 2001), perm. app. denied

(Tenn. 2002) (jury not given option to find les ser off ense tha n felony murder in secondcount; on first count charging premeditated murder, jury c onvicted defend ant o f seconddegree murder; failure to charge second-degree murder a s a lesser to felony murder w as not har

mless error). (b) Premeditated-murde r conviction

We also conclude that the trial court’s failure to charge a pplicable lesser-included offense s, other than second-degree murder, in connection with the premeditated murder count was notharmless beyond a

reasonable doubt. We are bolstered in our conclusion by the harmless error discussion in Allen and by the dete rmination in Allen that the e rror wa s not harm

less.
In this case, the defendant’s intent was clearly questionabl e an d subject to dispute, as evidenc ed by

the jury ’s rejection of fir st-deg ree, pr emeditat ed murde r. In light of th e jury ’s verdict and the resulting uncertainty , we have a substantial an d reasonab le concern that the jury ’s verdict may have ch anged

if it had been pre sented the opportu nity to conside

r other le sser off

enses. (c) Attempted espe cially aggravated robbery conviction
Fi na ll y, we are of the opinion that the trial court’s failure to charge applicable lesserincluded offenses to attempted e specially a

ggra vated ro bbery was har mless bey

ond a rea sonable doubt. Pre suming the defendant to be the shooter, the evidence was undisputed that the vi cti m suffered serious bodily injury

– death – and that the defendant had a deadly wea po n, na me ly a handgun. At

this juncture, the inquiry switches. When, as in this case, the e lements distinguishing the greater, charg ed offense are “uncontested and supported by ove

rwhelming and uncontroverted evidence,” the failure to instruct may be harmless error. All en , 69 S. W.3d at 190 (applying the reasoning of Neder v. United States , 527 U.S. 1, 119 S. Ct. 1827 (1999), to the improper omission of a lesser-included offense). We think such a situation exists in this case.-13- (C) Applic

ation of Pl ain Error

Rule
For the reasons we have

detailed above, it is our

determination that to do “substantial justice,” within the meaning of Criminal Procedure Rule 52(b) and Adkisson consideration (e), we must hold that it was plain error for the jurors not to have been instructed on theapplicable lesserincluded offense s for th e preme ditated and felony- murder charges. We, theref ore, reverse the defendant’s convictions for second-degree murder and for felony

murder. On remand for a ne w trial, the defenda

nt may be retr ied for f elony murder a nd its applicable le sser off enses a nd for s econddegree murder and its applicable lesser offenses. Se e State v. Rus h , 50 S.W.3d 424, 432 (Tenn. 2001). We hold the

re is no pl ain error in the failure to instruct on the lesser-included off enses of at te mp te d e sp ec ia ll y ag gr av at ed ro bb er y. III. Conse cutive Se

ntencing
Becau se further appellate review may follow our decision, see State v. Pende rgrass , 13 S.W.3d 389, 395 (Tenn. Crim. App. 1999), perm. app. denied (Tenn. 2000), we will consider the defendant’s final issue that the trial court should not have ordered his ten-y

ear sentence for attempted especia lly aggravated robbe

ry to be served consecutively to his sentenc e of life wit hout the possibility

of parole. The trial court found that the defenda ntwas a “dangerous offende r,” a finding which the defendant

disputes. The defendant maintains that althoug h he was c onvicted

of inher ently dangerous crimes, there were no other attending aggravating circum stances th at would warrant conse cutiv e sent encin g.

When there is a challenge to the leng th, range, or manne

r of ser vice of a sentenc e, it is the duty of this court to conduct a de novo r eview of the record with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40- 35-401(d

) (1997) . This presum ption is “conditioned upon the affirmative showing in the record tha t the trial cour t considered

the sentencing principles and all relevant fa cts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). “The burden of showing that the sentence is improper is upon the appellant.” Id. In the

event the record fails to demonstrate the required consider ation by the trial court, re vi ew of

th e s en te nc e i s p ur el y de novo

. Id. If appellate re view reflect s the trial court prope rly considered all relevant factors and its finding s of fact are adequately supported by the record, this court must affirm the sentence, “even if we would ha ve pref erred a diffe rent result.” State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

When a defendant is convicted of one or more offenses, the trial court must determine if the sentences shall be served concurrently

or consecutively. Te

nn. Code Ann. § 40-35-115 (1997). Consecutive sentenc ing may be impose d in the discretion of the trial court upon a determination that one or mor

e of the f ollowing criteri a exist: (1) The def endan t is a p rofess ional crimi nal wh o has k nowin gl y devotedsuch def

endant’ s life tocri minal acts as a major source of livelihood;-14- (2) The defendant is an offender whose r ecord of criminalactivity

is extensive; (3) The def

endant isa dang erous me ntally abnorma l person so declared by

a competent psyc

hiatrist . . . ; (4) The defendant is a dangerous of fender whose behavior indicates littleor no regard

for human life, and no hesitation about committing a crime in which the risk to human life is high; (5) The defendant is convicted of two (2) or more statutory offenses involving sexual abuse of a minor . . . ; (6) The defendant is sentenced for a n o ffense committed while on probation; or (7) The d efenda nt is sente nced for criminal contempt

. Tenn. Code Ann. § 40-35-115(b)(1)-(7) (1997). In addition to these criteria, consecutive sentencing is subject to

the gen eral se ntencing princip les providing that the length of a sentence should be “justly deserved in rela

tion to the s eriousne ss of the offense” and “nogreater than that deserve d for the offense committed.” Id . §§ 40-35-102(1), -103(2) (1997); see State v. Imfel d , 70 S.W.3d 689, 708 (Tenn. 2002). Moreover, i n State v. Wilkerson , 905 S.W.2d 933, 937-38 (Tenn. 1995), the supreme court articulated two additional require men ts for consecutive sentencing under the dangerous offender category ; the trial court must find consecutive sentences are reasonably

related to the severity of the

offenses committed and are necessar y to protect the

public from further criminal con duct. See Imfe ld , 70 S.W.3d a t 708 (need for the

additiona

l Wilkerson findings arises in p ar t because “dangerous of

fender” category

“is the most subjective and hardest to apply ”).
At the conclusion of

the sentencing hearing in this case , the trial court ordered that the defenda

nt’s especially

aggr avated r obbery sentenc e be ser

ved cons ecutively to

his life sentence. The tria l court’sfinding s appear

in the re cord as f

ollows:
I do find tha t Mr. Wil son is a da ngerous offender whos e behavior indicates little or no regard for human life and no hesitation about commi ttin g a

cr ime in which risk to human life is high. The manner in which he, according to the proof, talked a boutgoing out to rob the dope man and

then almo st cavalierly w ent back in after he shotthe man and sort of orchestrated the whole cover-up a nd then walked o ff to go

to some fr

iend’s f uneral s ugge sts to me that he has littleor no regard

for human life and no hesitation about committing a crime involving risk to human life.-15- As to whether or not

a consecutive sentenc e would r easonab ly relate to t he seve rity of the offe nses committed it’s hard to see how the severity of the of

fenses committed could be any greater than a first degree murder under the se circumstances, and consecutive sentences being necessa

ry in order to protect

the public from further serous criminal conduct by the D efendant I think the jury through its verdict and I concur in wha

t the jury’s actions we

re, were concerned that the public be protected from Mr. Wilson based on h is conduct during t hese eve nts.
A nd accord ingly I thin k the c onsec utiv e sent encin g is in order

. I’l l sentence Mr. Wilson to ten yea rs as a Range I

offender for thi s offense consecu tive to his li fe without parole sentence that he had already received. Here, the trial court found that the Wilkersonfactors existed and that the defendant qualifiedas a dangerous offender . The trial court further made factual f indi ng s relative to the defendant’s demeanor, which to the trial court indicated little or no rega rd for human life and no hesitation about

committing a crime involving a high risk to human life. In pa rticular, the trial court emphasized the defe

ndant’s c asual, no nchalan t actions a fter the shooting . We will not

second g uess the trial court’s assessment of the defendant’s demeanor, and we are of the opinion that the record suppo rts t he imp osit ion o f cons ecuti ve sen tenci ng. IV. Conclusion
Based on the reversible error that occurr ed in this case relative to the failure to charge lesser-included

of fe ns es , w e r ev er se th e d ef en da nt ’s se co nd -d eg re e m ur de r a nd fe lo ny- m urder convictions and reman d the case for a new trial on both charges. We af firm the defendant’s attempted especially

aggravated robbe

ry conviction. We aff

irm the consecutive sentencing order.

___________________________________ JAMES CURWOOD WITT, JR., JUDGE