# FILED
June 19, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE DECEMBER 1994 SESSION

STATE OF TENNESSEE, ) ) Appellee, ) No. 03C01-9404-CR-00141

) ) Blount County v. ) ) Honorable Kelly T homas, Jr., Jud ge ) FRANK WHITMORE, ) (First degree murder) ) Appellant. )

For the Appellant : For the Appellee : Gerald C. Russell Charles W. Burson 125 E. Broadway Avenue Attorney General of Tennessee Maryville, TN 37804 and Sharon S . Selby Assistant Attorney Gener al of Tennessee 450 James Robertson Parkwa y Nashville, TN 37243-0493 Michael L. Flynn District Attorney General and Edward P. Bailey, J r. Assistant District Attorney General Blount County Courthouse Maryville, TN 378

01

OPINION FILED:_______________________
AFFIRMED Joseph M. Tipton Judge1 The defendan t was also convicted of aggravated burglary, a Class C felony, and theft under $500.00, a Class A misdemeanor. As a Range I, standard offender, he recei ved concurrent sentences of si x years and el even months and twenty -nine day

s, respecti

vely. He does not rai se any challenges r

egarding t hese convicti ons. 2 O P I N I O N
The defendant, Frank Whitmore, appeals as of right from a jury conviction in the Circuit Court of Blount County for first degree murder. 1 Although the state sought the death penalty, the defendant w as sentenced to life imprisonment i n the custody of the Depa rtment o f Correct ion. He pre sents the following issues fo r review:

(1) whether

the evidence is sufficient to support the conviction of first degree murder, (2) whether the trial co urt erred by no t req uiring the state to elect un der whic h theory of first degree mur der it would seek a conviction, (3) whether the

trial court erred by

instructingthe jury rel ative to the elements of felony murder and criminal responsibility for felony murder, and (4) whether the trial co urt e rred by denying the defendant’s special requests for various jury instructions

and by improperly instructing the jury regarding lesser included and

lesser grade offenses. We hold that the evidence is suf ficient and that the trial court did not commit reversible error. Therefore, we affirm the t rial court’s judgment of conviction.

On August 11, 1991, William Pyott, an eig hty-year-old neig hbor of the defendant’s grandparents, wa s found dead in his home. He had been st abbed a total of thirteen times in the neck and the chest.

Hazel Chapman, a neighbor of the victim, testified that on the night of the murder she was awakened at approximately 1:30 a. m. by the growling and the barking of her dogs. She said that she looked outside the window but could not see th e victim’s house because of the trees. Ms. C hapman stated that she was aw akened later by her dogs because they wer e barking and running i n the direction of the vict im’s house.3

James Long, who liv

es approximately a half mile from the victim, testifie d that when he was driving a fr

iend of his daughter’s to her house around 12:30 a.m., he saw the defendant walking with a short, stocky man.

David Maples, a deputy for the Blount County Sheriff’s Department, responded to a dispatch of a possibl e burglary at the v ictim’s house. He testifie d that the front door was open and damaged . The screen door was hang ing on hinges and the glass from the screen door was leaning agains

t a wall. After he entered the residence, he found the victi m lying in the hall s urrounded by blood. Officer M aples stated that there was a tr ail of blood coming from the bedroom to the hallway and that a closet door at the end of the hallw ay was open.
Gary Hamilton, a Blount C ounty Crime Scene Technici an and Fingerprint Examiner, assisted in the investigation. H e testified that he discover ed fingerprints on the exterior side of the screen door matching that of the def endant. A blood trail fourteen feet two inches long e xtended from the blood-cover ed bed to the hallway where the victim w

as found. Officer Hamilton expres sed the belief that the victi m got out of the bed after being stabbed and dragged himself into the hall. The telephone in the den was off the hook. Officer Hamil ton stated that a fingerprint found on the linoleum underneath the bed came from the defendant . He also said that he found a trunk in another bedroom that appear ed to have been tampered with due to damage to the lid. Officer Hamilton testified that he f ound no blood on the defendant’s cloth es.

Detective Randall Mer

cks of the Blount County Sher iff’s Department similarly descri bed the scene during his tes timony. He added that he disc overed one thousand four hundred dollars betw een the mattress and box spri ngs of the victim’s bed and a note indicating that he ha d given the defendant twenty -five dollars on Augus

t 10, 1991. Detective Merck s stated that he and Detectiv e Jim Widener jointly questioned2 W illiam s pled guilty to first d egre e m urde r, agg rava ted b urgla ry and mis dem ean or the ft, receiving an effec tive senten ce of life im prisonm ent. 4 the defendant an d Coy Dean Willi ams 2 regarding their involvement in the victim’s murder.
In a joint confession, the defendant and Williams ag reed that the following events occurred. The defendant sai d that he called the victi m around 6:00 p.m. and asked him to b

orrow some

money. The v

ictim agreed, and the defen dant and Williams drove to the victim’ s home. According to the defendant, the victim asked the defendant to come inside and gave hi m twenty-five doll ars. While the defendant was talking to the victim, Williams went into a bedr oom and took twenty dollar s and a gold watch. Williams told the officers that he opened the trunk and searched for a gun. Findi ng no gun, W illiams in stead to ok some si lver coins a nd place d them in his pocke t. The two then left the victim’s home and drove to Knoxville to purchase two quails, each containing a quarter g ram of cocaine, with the money

.

The statement further reflects that lat er that night, the defendant and Williams decided to go back to the vi ctim’s home to steal the vi ctim’s guns or money to purchase more drugs. The defendant tol d Williams that the victim kept his guns in a suitcase. Both the defendant and Williams assert ed that their plan was not to hurt the victim but only to s

care him. They drove by the victim’s home sev

eral times until all of the lights were tur

ned off. On the first attempt, the defendant and Williams got out of the car, walked to the back door, but returned to the car after finding the door locked and hearing the victi m talking on the telephone. The defendant told the officers that he became paranoid when dogs st arted barking, so they

went to a store and wa ited for thirty minutes, gather

ing themselves to go back to the house. Seeing that all of the lights were out, they

parked the car. Before they left the car, Williams reached over to take the defendant’s knife from the dash near the speedometer where the defendant kept it and placed it in his pocket. Then, they walk ed to the house. When the5

defendant could not open the screen door to the house, Williams yanked it open and kicked in the door.

The defendant and Williams stated that they entered the dark house as the victim was comin g towards the hallw ay carrying a flas hlight. Williams said that he grabbed the victim and pl aced his hand over his mouth,intending to put him on the bed but not to hurt him. Williams stated that the victim grabbed him by the hair and the pants as they w restled on the bed. Reg arding the exa ct time that he re moved th e knife from his pocket, Williams made contradictory statements. First, he stat ed that he pulled the knife from his pocket before the v ictim grabbed his hair and pants and held it to the victim’s neck, tell ing him to be quiet and not t o move. Williams later claimed that he withdrew the knife w

hen the victim grabbed hi m by the hair. He also s tated that because the victim woul d not let him leave and because he “had no choice,” he stabbed the victim.

Meanwhile, the defendant went to the other bedroom and ripped the trunk open and grabbed a money bag c ontaining forty-tw

o dollars. The defendant told the officers that he heard the victim moaning when he stepped insid e the bedroom to tell Williams that the

y were l eaving. Th e defendant sai d that he wen t outside but

came back into the bedroom after he notice d that Williams had not followed him. As he entered the bedroom, the defendant saw a flashlight shining under neath the bed. The defendant said that he crawled on the floor and reached under the bed to get the flashlight. As he turned the flashlight off, the defendant saw blood,panicked and ran out the door. Williams ran outside behind th e defendant.

The defendant asserted in the statem ent to the police that after getting in the car, Williams told him that he kill ed the victim. Accordi ng to the defendant and Williams, the defendant became hysterical, and Williams had to scream at the6

defendant to get him to calm down.They then drove to Old M aryville Pike t o dispose of the flas hlight . The defe ndant sa id that h e gave Williams o ne of his T-shir ts to w ipe off any fingerprints on the flashlight before they threw it out the window. On the way back to Knoxville, Williams wiped the blood off the knife and threw it out also. Afterwards, the defendant stated that they counted the money and decided to buy two more quails, a quart er gram of cocai ne apiec

e, wit h the for

ty-tw o dollar s. They wiped the blood

off Williams with a blue wash rag and went to see Williams’ girlfriend. While at her residence, they burned the mone y bag. Later, the defendant took his jeans and shirts to the dumpsters behind the shopping center and threw the blue rag in a ditch as he was driving aw

ay.
On August 12, 1991, the defendant show ed the officers where he hid the items used during the murder. The officers recovered all of the items except the flashlight.
Dr. William Elliot conducted the autopsy of the victim. He testified that the victim was an ex

tremely slender man wh o was approximately four feet six inches tall. Dr. Elliot stated that he found a total of thirteen cut s and stab wounds to the victim’s neck and chest. Three of the stab w ounds perforated the victim’s lungs. Dr. Elliot expressed the opinion that the neck wounds probably occurred first. According to Dr. Elliot, the victim di d not die quickly and his death was caused by a combination of the inability to breathe and blood loss from the wounds.

I. SUFFICIENCY OF THE EVIDENCE The def endant c ontends that the evidence was insuf ficient to prove beyond a reasonable doubt his g uilt for the offense of first degree murder. The defendant was charged with first degree premeditated murder and felony murder in separate counts of the indictment. The jury returned guil ty verdicts on each count, and7

the trial court merged them into one judgment of convict ion for first degree murder. On appeal, the de fendant cha llenges the suf ficiency of the evidence for the jury’s findings of guilt for both counts. The state argues that the evidence is sufficient to support the conviction of first degr

ee murder based on either first degree premeditated murder or felony murder. We agree.

Our standard of review when the sufficiency of the ev idence is questioned on appeal is "whether, after v iewing the evidenc

e in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements o f the crime beyond a reasonable doubt ." Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This means that we may not reweigh the evidence, but must presume that the jury has resolved all conflicts in the testimony and drawn all reasonable inferences from the evi dence in favor of the state. See State v. Sheffield , 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978).

A. COUNT 1 -

FIRST DEGREE PREMED ITATED A ND DELIBERA

TE MURDER In his first issue, the defendant c hallenges his first deg ree murder conviction on the groun ds that there is insufficient ev idence to show (1) that the defendant personally committed an i ntentional, premeditated and deliberate killing of the victim, (2) that Williams’ c onduct constituted an intentional , premeditated, and deliberate killing of the

victim, and (3) that the defendant was criminally responsible for Williams’ actions. See T.C.A. § 39-13-202(a)(1) (1991), T.C.A. § 39-11-402(2) . The state does not argue that ther e is sufficient evidence to s how that the defendant committed the offense himself , but instead asserts that the evidence supports the jury’s determination of guilt beyon d a reasonable doubt based on his c riminal responsibilit y for Williams’ commission of first degree pr emeditated and deliberate murder.3 Pursuant to an a mendment effective Jul y 1, 1995, the stat utory pr ovision d efiningfirst degree murd er was a men ded, pur portedly de leting the req uirem ent of de liberation. See T.C.A. § 39-13- 202(a)( 1) (Sup p. 1996)

. 8

At the time of the offense, an unlawful, int entional, premeditated and deliberate killing of another constituted first degr ee murder. See T.C.A. §§ 39- 13-201(a) and -202(a)(1) (1991) 3 . Our criminal code defined a deliberate act as “one performed with a cool purpose,” and a premeditated act a s “one done after the exercise of reflection and judgment.” T.C.A . § 39-13-201(b)(1) and ( 2) (1991). In State v. Brown , 836 S.W.2d 530 (Tenn. 1992), our supreme court further defined deliberation as requiring some perio

d of reflection, without passi on or provocation, and concluded that the “deliberation necessar y to establish first deg ree murder cannot be formed in an instant.” Id . at 539, 543. Premeditation req uires a showing of a pr eviously formed design or intent to kil l. State v. West , 844 S.W.2d 144, 147 (Tenn. 1992). The existence of the separate and distinct elements of premeditation and deliberation is a question of fact to be decided by the jury. See State v. B rown , 836 S.W.2d at 541-42. In this respect, the determin ation of the state of mind necessary to establish the elements of first degree murder may be shown by circums

tantial evidence. State v. Brown , 836 S.W.2d at 541; State v. Burlison , 868 S.W.2d 713, 717 (Tenn. Crim. App. 1993).
The statute dealing with criminal responsibility for another person’s conduct provides:

A person is criminallyresponsible for an offense committed by the cond uct of ano

ther if:

. . . (2) Acting with i ntent to promote or assist the commi ssion of the offense, or to benefit in the proceeds or results of the offense, the person solicits, di rects, aids, or a ttempts to aid another person to commit the offense;

. . .9

T.C.A. § 39-11-402(2). Our court has stated that to be cr iminally responsible

for the acts of another, a defendant mu st “‘in some way associate himself with the venture, act with knowledge tha

t an offense is to be committed, and share in the criminal intent of the principal in the first degree.’” State v. Maxey , 898 S.W.2d 756, 757 (Tenn. Crim. App. 1994) (quo ting Hembree v. State , 546 S.W.2d 235, 239 (Tenn. Crim. App. 1976)). In other words, the defendant must “‘knowingly, voluntarily and w ith common intent unite with the principal offender[] in the commission of the crime.’” State v. Maxey , 898 S.W.2d at 757 (quoting State v. Foster , 755 S.W.2d 846, 848 (Tenn. Crim. App. 1988)). The requisite criminal intent may be inferred from the defendant’ s “presence, companionship, and conduct before a nd after the offense . . . .” State v. McBee , 644 S.W.2d 425, 428-29 (Tenn. Crim. App. 1982).

The proof demonstrates beyond a reasonable doubt all of the elements of first degree murder as commit ted by Williams. In the light most favorable to the state, the evidence reflects that William s armed himself with the defendant’s knife be fore entering the victim’ s house. Once inside the house, Williams grabbed the victim, thr ew him on the bed, and placed his hand ov er his mouth. Williams then took the knife from his pocket and held it to the victim’s neck as he told him not to move. W hen the victim grabbed Williams by the hair and the l eg without releasing him, Williams began stabbing the victim. The state argues that William s’ statement that he had no choice but to stab the victim pro vided a basis for the jury to infer that Williams weighed the options available, thus satisfying the element of deliberation. We agree. These circumstances sufficiently establish that Williams reflected upon his previously formed decision to kill the v

ictim.
The proof also establishes beyon d a reasonable doubt that the defendant is criminally respon sible for the f irst degree murde r committed by W illiams. Althou gh Williams asserted in his statement to the p olice that they only intended to scare the10

victim, the elements deali ng with mental states may be shown by circums

tantial evidence. State v. B rown , 836 S.W.2d at 541; State v. Burlison , 868 S.W.2d at 717. In this regard, the defendant’s c onduct before the murder supports a d etermination that the defendant is criminally responsible for Williams’ conduct. See State v. McBee , 644 S.W.2d at 428-29. The defendant agr

eed with Willi ams to burgl arize the v ictim’s hom e so they could purchase more drugs. He provided

the transportation and drov e by the victim’s house seve ral times, waiting for the victim to turn off the li ghts. In fact, the defendant and Williams retreated after the first try because they heard the vi ctim inside talking on the telephone. Thus, both the def endant and Williams knew that the victim would be inside the house. The defendant also provided Williams with the murder weapon. Williams told the officers that although he did not get the knife di rectly from the defendant, he did take the defendant’s knife from the dash before they left the car and placed it in his pocket.From this statement, the jur y could properly i nfer that the defendant knew that W illiams armed himself with a weapon before entering the victim’s house because Williams had to reach across to the driver’s side to get the knife. Moreover, the defendant activ ely participated in the

burglary.
The jury also could hav e inferred from the defendant’s conduct after the murder that he shared Williams’ crimina l intent. See State v. McBee , 644 S.W.2d at 428-29. First, the defendant heard the victim moaning and obser ved blood in the bedroom before leaving the hous e but did not attempt to assist the victim. Instead, the defendant left the victim to die and divided the money wi th Williams for their drug purchases. Also, he admitted that he gave Williams his shirt t o wipe off fingerprints from the flashlight before they threw it out the car window. The defenda nt also conceded to disposing of other ev idence.

Under these circumstances, the jury could reasonabl y find that the defendant aided W illiams in the murder and shared the intent necessary to establish11

first degree premeditated and del iberate murder. Therefore, w e hold that any rational trier of fact could have concluded that there was sufficien t evidence to support the jury’s determination of guilt beyon d a reasonable doubt that the kil ling by Williams satisfied the elements of first degree premedi tated and deliberate murder and that the defendant was criminally responsible for Williams’ actions. See State v . John V. Woodruff , No. 01C01-9507-CR-00217, Dav idson County, slip op. a t 13 (Tenn. Crim. App. Aug. 1, 1996), app . denied (Tenn. Jan. 27, 1997) (held defendant criminally responsible for first degree premeditated and deliber ate murder when he provi ded the transportation and the weapo n used in t he killing and stop ped the ve hicle af ter his cod efenda nt state d, “we gotta get [the victi m]”).

B. COUNT 2 - FELONY MURDER

The defendant also claims that his fir st degree murder convi ction cannot stand because there is insufficie nt evidence to establish e ither (1) that the defendant recklessl y killed the victi m during the perpetrati on of a burgl ary or (2) that Williams recklessly kill ed the victim during the perpetration of a burglary and that the defendant is criminally res ponsible for Williams’ conduct. See T.C.A. § 39-13-202(a)(2) (1991), T.C.A. § 39-11-402(2). Specifically, the defendan t argues that he cannot be held responsible for the conduct of Williams because there is no evidence that he knew of Williams’ intentions to kill the v ictim, only discov

ering that the victi m had been killed after getting in the car to leave. The state does not ar gue that there is sufficient evidence to demonstrate that the defendant recklessly kil led the victim himself but contends that the evidence is sufficient to show that the de fendant is criminally respons ible for

the rec kless k

illing committ ed by Will iams dur

ing the perpetr ation of a burglary. We agree that the proof is sufficient to establish the defendant’s guilt of felony murder beyond a reaso nable doubt based on his crimina l responsibility for the acts of Williams.4 Pursuant to an a mendment, the reckless mens rea element f or felony

murder was deleted, stating that “[n]o culpable mental state is required for conviction under [the felony murder] subdivisi on . . . except the i ntent to commit the enumerated offenses or acts . . ..” T.C.A. § 39-13-202 (Supp . 1995). 12

At the time of the offense, f elony murder was defined as the unlawful, “reckless killing

of another committed in the perpetration of, or attempt to perpetrate any first degree murder, arson , rape, robbery, burg lary, theft, kidnapping o r aircraft piracy.” 4 T.C.A. §§ 39-13-201(a) and -202( a)(2) (1991). A person “ acts recklessly w

ith respect to circumstances surrounding the conduct or the result of the cond uct when the person is aware of but consciously disregards a substanti al and unjustifiable risk that the circumstances exist or

the result will oc

cur.” T.C.A. § 39-11-302(c ).

In order to hold the defendant crimi nally responsible for felony murder based upon the conduct of Williams, the state had the bur den of proving that the defendant directed or aided Williams in the felony murder while acting

with the intent to promote or assist the commiss ion of the felony murder or to benefit in the proceeds or results of the felony murder. See T.C.A. § 39-11-402(2). A co nviction based on criminal r

esponsibil ity for another person’ s conduct re quires tha

t a defendant “ ‘in some way associate himsel

f with the venture, act w ith knowledge that an offense is to be committed, and share in the criminal intent of the principal in the first degree.’” State v. Maxey , 898 S.W.2d at 757. “The defendant must ‘knowingl y, voluntarily

and with common intent unite with the principal offende r[] in the commission of the crime.’” Id

. In this case, the requir

ement that the defendant share in the cri minal intent of the principal mandated that the state prove that the def endant shared, at least, the reckless mens rea required for a felony murder conviction ag ainst Williams. See T.C.A. § 39-11- 402(2); State v. Maxey , 898 S.W.2d at 757. T he defendant’s presence, companion ship and conduct before and after the offense are cir cumstances from which cri minal intent may be inferred. State v. McBee , 644 S.W.2d at 428-29.13 Initially, we note

that a conviction for felony murder based upon a defendant’s criminal responsi bility requires that the defendant act with intent to promote or assist the felony murder, a crime involvi ng reckless conduct. We acknowledge that the Tennessee Supreme Court recentl y held in State v. Kimbrou gh , 924 S.W.2d 888 (Tenn. 1996), that the crime of attemp ted felony murder does not exist as a crime in Tennessee. The court stated that an atte mpt to commit a crime necessari ly involves an intended act or result. 924 S.W.2d at 890. I t also noted that felony mur der, at the t ime of the offense, required that the killing be comm itted recklessly. It then reasoned that “it is logically and legally impossibl e to attempt to perpetrate an unintentional killing,” stating, as well, “that one cannot intend to accomplish the unintend ed.” Id . at 892. By this path, the court concluded that “the offense of attempted felony-murder d oes not exist in Tennessee.” Id

.

However, our cri minal code expressly provides that the culpabl e mental state reflected by an “intentional” act legally suffices to establish the culpabl e mental states of criminal neglig ence and recklessness, as w ell. That is, T.C.A. § 39-11- 301(a)(2) states:

Whe n the l aw provides that cr iminal negligence suffices to establish an element of an offense, th at element is also established if a person acts inte ntiona lly, knowing ly, reckles sly. When recklessness suffices t o establish an element, that element is also

establi shed if a person acts intentionally or knowingly. When a ct ing knowingly suffices to establish an element, that ele men t is also established if a per son acts intentio nally. As the Sentencing Commission Comments explain, the lesser levels of culpab ility are included by law in the greater so that “a per son who acts ‘intentional ly’ also acts knowingly, recklessly and with criminal negligence.” See T.C.A. § 39-11-301. Thus, although a felony murder req uired only a reckles s killing, a conv

iction may be obtained even though the proof showed that the killing w as intended.14 Furthermore, Kimbrough does not deal with the is sue of criminal responsibility for the crime of felony murder, whi le this court has prev iously concluded that “one can be guilty

of felony murder based on that pers on’s criminal responsib ility for the conduct of another.” State v. Lewis , 919 S.W.2d 62, 67 (Tenn. Crim. App. 1995); see also State v. Maxey , 898 S.W.2d at 758 (approving the applic ation of criminal responsibili

ty for a codefendant’s rape of a chil d although the offense required only a reckless mens r

ea). For these reasons, w e also conclude that a felony mur der conviction can be based on c riminal responsibilit y for the acts of another.

In fact, the evide nce of th e premed itated a nd delibe rate killi ng which we previously discus

sed sufficiently proves a felony murder when consi dered with the commission of the burglary. Aside from an intentional killing, though, the evidence certainly reflects a r

eckless killing and sufficient awareness and assi stance by the defendant that would prove hi s responsibility for Williams’ conduct.

The record shows that the defendant drove Williams to the victim’s house, plannin g to rob the victim of his mone y or guns. Al so, the ju ry reasona bly could h ave concluded that the defendant knew that W illiams armed himself with the defendant’s knife before they left the car becaus e he had to reach across the dr iver’s side to get

the defendant’s knife. See State v. Timothy D. Harris , No. 02C01-9211-CR-00258, Shelby County, slip. op. at 11-12 (Tenn. Crim. App. Apr. 13, 1994) (the def endant’s awareness that codefendants were carry ing guns during a r

obbery was a factor in determining that the element of recklessness had been satisfied for a felony murder conv iction), rev’d. on other grounds , 919 S.W.2d 323, 327, 330 (Tenn. 1996).

Knowing t hat the vic

tim was in side, both th e defendant and Willi ams entered the home to carry out their plan. The record reflec ts that when confronted by the victim, the defendant entered a separate roo m to look for the money or guns while15

Williams detained the victim. Williams and the v ictim struggled, and Williams r emoved his knife and stabbed the victim. The record shows that the defendant then walked into the bedroom to tell Williams it was time to leave. Rather tha n helping the victim once he heard the victim moaning and saw blood in the bedroom, the def endant told Williams that it was time for them to leav e, ran to the car, and then drov e Williams away from the scene. The defendant took the vic tim’s money with him as he ran out of the house. Once the defendant reached a safe plac e, they disposed of the knife and the flashlight after wiping

each of them clean. Through their joint statement, the defendant and Williams admitted their guilt to th e crime of burglary, and Williams confessed to killing the victim. From these facts, the jury could have found beyond a reasonable doubt that the defendant was crimi nally responsible for th e crime of felony murder as committed by Williams.

II. ELECTION OF OFFEN SES The defendant next complains that the trial court erred by denying his motion to require the state to elect to prosecute on either the premeditated and deliberate murder count or th e felony murder count of the indic tment. He makes several arguments regarding the necessity for election. First, he as serts that charging the jury on both counts of first degree murder violated the rule against multiplicity. He contends that the two counts w ere opposite in theory and in elements and claims that he was unfairly prejudiced because he was forced to defend against two contradicto ry theories of first degree mu rder. Also , the def endant c laims tha t it is impo ssible to have the elements of both first degree pr emeditated and deliberate murder and felony murder when a single k illing occurs. In addition, the defendant argues that e lection was necessary because the tri al court instructed the j ury that it could “con vict” the defendant on each count and the jury in fact “convicted” the defendan t of both forms of first degree murder. In support of hi s argument, he relies upon the following instruction given by the tria l court:5 The offenses of aggrav ated burgl ary and th eft under $500. 00 were the subje ct of an indict ment separate from the i ndictment for first degree murder. The tri al court co nsolidat ed the cases for trial. 16

The crime charged in each count of each indictment is a separate and distinct offense. You must deci de each charge separately on the evid ence and the law applicable to it. The defendant may be found guilty or not guilty of any or all of the of fenses charged. Your finding as to the crime charg ed i n each count must be stated in your verdict. In effect you will return a separate verdict in each count of [the two indictments 5 ]

. . . . In response, the state asserts that it was proper to i nclude both theories in the indictment and to present to the j ury both counts of first deg ree murder because the evidence supported a conviction for each. W e agree that election was not required in this case.
Multiplic

ity is the term applied to the impro per chargi ng of the same offense in more than one count of an indictment. The evils that it present s are two-fold. First, as to the trial

itself, multiplicity

may carry the potenti al of unfair prejudice, such as suggesting to the jur

y that a defendant is a multiple offender or falsely bolstering the state’s proof on such issues as the defendant’s motive or know ledge of wrongdoing. See State v. Desirey , 909 S.W.2d 20, 27 (Tenn. Crim. App. 1995) (cit ations omitted). Second, it can lead to multipl e convictions and punishment for only one offense. Id

. That is, an indictment viol ating the rule against multiplicity may l ead to a violation of the Double Jeopardy Clause i f it results in the impositi on of cumulative punishments for only one offense. Id

.

Our supreme court has held that the state is “not requi red to elect upon separate charges in the sa me indictment, although the defendant may demand election between factual occurrences.” State v. Henley , 774 S.W.2d 908, 916 (Tenn. 1989). Specifically, the court concluded that the state is not required to elect between f irst degree premeditated and deliber ate murder and felony murder char ged in separate counts of the indictment for a sing le offense. Id . Also, the practice of submit ting both17

theories of first degree murder to the jury has been accept ed. See State v. Hurley , 876 S.W.2d 57, 69-70 (Tenn. 1993); State v. Zirkle , 910 S.W.2d 874, 889 (Tenn. Crim. App. 1995); Welch v. State , 836 S.W.2d 586, 589 (Tenn. Crim. App. 1992).

Similarly, election

was not required i n this case. There was no danger that the state’s proof would be bolstered or that the jury would infer that the defendant was a multiple offender from the char ging of alternative theories of first degree murder in separate counts. The jury was instructed that the defendant was charged wi th the crime of first degree murder, and the proof established that only one killing took plac

e. Pursuant to T.C.A. § 39-13-202 (1991), alternative means b y which the offense of first degree murder can be committed ar e provided. Premeditated and deliberate murder and felony murder are both first degree murder. State v. Hurley , 876 S.W.2d at 59-60. The trial court made clear th at the defendant could be found guilty of first degree murder based on either theory of first degree murder by instructing the jury on the elements of each count.

Although the defendant argues that permitting a trial for al ternative murder charges for a single k

illing permits the j ury to convict on one count and then use that conviction to take for g ranted that the defendant was gui lty of the other count, the record does not support his claim. First, the tri al court instructed the j ury that the state had the burden of proving bey ond a reasonable doubt the defendant’s g uilt for the alternative counts of first degree murder. Also, the j ury was told that it must decide each charge separately and that a separate verdic t must be returned for each count. The jury did not return a general verdict of g uilt for the crime of first deg ree murder, but instead specifically found the defendant guilty of both premeditat ed and deliberate murder and fel ony murder.By return ing separa te verdic ts of guilt,we may pr

esume that the jury found that the element s for each charged offense had been prov en beyond18

a reason able dou bt. Under these circ umstanc es, we hold that the jury would no t have been confused regarding the number of offenses committed by the defendant.
Also, the charging of alt ernative theories of first degree murder did not lead to multiple punishment for the s ame offense. The jury returned gui lty verdicts for both counts, and the trial cour t entered a single judg ment of conviction for first deg ree murder, imposing a sing le sentence of life imprisonment. In a single trial, returning multiple verdicts for a single offense does not implicate double jeopardy concerns unless the trial court ent ers more than one judgment of conv iction imposing more than one punishment for the same offense. See State v. Hurley , 876 S.W.2d at 69-70. The trial court did not impose multiple punishments in this case, and th erefore, the rule against multiplicity

was not violated. U nder these circumstances, el ection was not required.

III. JURY INSTRUC TIONS FOR FELONY M URDER The defendant also argues that the tr ial court erred in its

jury instructions regarding the crime of felony murder in several respects. He claims that the trial court incorrectly instr

ucted the jury (1) by

substituting the wor

d “burglary,” the underlying felony offense, for the word “offense” i n its instruction for cr iminal responsibility

for the crime of felony murder, (2) b y failing to define the mental states “knowingly ” and “intentionally,” and (3) by declining to follow the statutory definition of the term “recklessly.” The state asserts that the trial court gave a correct statement of the law in its instruction relating to criminal responsibility for felony murder because the term “offense” in the criminal res ponsibility provi sions refers to the underly ing felony and not the reckless killing. The state further argues that because the def endant did not make a special request regarding the jury instructions given for the elements of felony murder, the claims relating to the definitions of the requisite mental states have been wa ived. See Teague v. State , 772 S.W.2d 915, 926 (Tenn. Crim. App. 1988) (stati ng that the19

failure to object contemporaneousl y to the state’s closi ng argument results in waiver of the issue pursuant to T.R.A.P. 36(a)). W e hold that reversible error did not occur.

The trial court has a duty to charge the jury on

all of the law that applies to the facts of the case. State v. Harris , 839 S.W.2d 54, 73 (T enn. 1992). The jury instructions should descr ibe and define all of the elements of each offense unle ss the terms are of common use and understanding

. State v. Cravens , 764 S.W.2d 754, 756 (Tenn. 1989). Anything short of a complete charge denies a def endant his constitutional right t

o a jury trial. State v. McAfee , 737 S.W.2d 304, 308 (Tenn. Crim. App. 1987).

A. CRIMINA L RESPONSIBILITY FO R FELONY MURDER The defendant contends that the trial court improperly instructed the jury regarding criminal

responsibility for felony murder. See T.C.A. § 39-11-402(2). The trial court gave the following instruction:

I instruct you that

the defendant is criminally responsible forthe first degree murder charged in this co un t committed beyond a reasonable doubt by an oth er person if acting wi th intent to promote or assist the commission of the burglary or to benefit in the proceeds or result s of a burglary ; the p erson solicits, directs, aids or attempts to aid a nother p erson to commit a burglary

. (Emphasis added). Defense counsel objected to the instruction at trial and requested that the term “first degree murder” be inserted in the place of th e underlined portions.

On appeal, the defendant claims that th e substitution of the word burglary instead of first degree murder required the jury t o find the defendant guilty of felony murder upon a determination that the defendant was guilty of bur glary. The state disagrees and asserts th at because the essential ques tion in a felony murder situation is the extent of the defendant’s inv olvement in the underlyi ng felony, the words “ the offense” refer to the underlying felony, in this case burg lary, and not to first deg ree20

murder as argued by the de fendant. We disagree. The perpetration of or attempt to perpetrate the underlying felony is merely one el ement of the offense of felony murder. See T.C.A. § 39-13-202(a)(2) (1991). A felony murder conv iction also requires

that the state prove beyond a reas onable doubt that a reckless k illing of another was committed in the perpetration or the att empted perpetration of an enumerated felony

. Id

.

In essen ce, the st ate subm its that p roof of the unde rlying felo ny always supplies the reckless mens rea required for a conv iction of felony murder under T.C .A. § 39-13-202(a)(2) (1991). We disagree. The circumstances of the underlying offense may, but do not necessarily, provide a basis for inferring the recklessness required for a conviction of felony murder based on criminal responsi bility for the acts of another

. See State v. Middlebrooks , 840 S.W.2d 317, 345 (Tenn. 1992). In fact, our court ha s concluded that T.C.A. § 39-13-202( a)(2) (1991) does not prov ide a presumption of recklessness from the fact that the defendant was engaged in the commission of an enumerated offense when the killing occurred. State v. Gilliam , 901 S.W.2d 385, 390 (Tenn. Crim. App. 1995).

Before the 1989 Sentencing Act, felony murder lacked any mens rea requirement, establishi ng strict liability for the crime of first deg ree murder when a murder was committed durin g the perpetration of or an attempt to perpetrate an enumerated offense. See T.C.A. § 39-2-202(a)(1) ( Supp. 1988); State v. Middlebrooks , 840 S.W.2d at 336. The legislature added the requirement that the killing be reckless when it enacted the 1989 Sentenci ng Act. See T.C.A. § 39-2-202(a)(2) ( 1991). By adding the req uirement, the l egisla ture in tended t

o elimi nate the

possibi lity o

f a conviction based on stri ct liability. State v. Middlebrooks , 840 S.W.2d at 337. Therefore, the 1989 Sentencing Act r equired that the state not onl y prove beyond a reasonable doubt that a killi ng occurred during th e perpetration or the attempted21

perpetration of an enumerated offense, but that i t also show that the kil ling was reckless. See T.C.A. § 39-13-202(a)(2) (1991).

By instructing the j ury that the defendant is cri minally responsible for the crime of first degree murder if he aided another perso n in committing a burglary while acting with the intent

to promote or assist the bur glary or to benefit in the proceeds of the burglary, the tr

ial court permitted the jur y to find the defendant guilty of first degree murder based on a determination that the defendant was criminall y responsible for the burglary committed by Williams. However, as mentioned, the 1989 Sentencing Act does not provide for stri ct liability for the crime of felony murder based on a show ing that a killing occurr

ed during the commission of an enumer ated felony. Rather, the felony murder statute in effect at the time of the offense required that the ki lling committed in the perpetration or attempted perpetration of an enumerated felony be reckless. Thus, the term “offense” contained in the criminal responsibility statute refers to the crime of felony murder itself and not to the underlying offense. Under these circumstances, we hold that the trial court err ed in its instruction.

However, a determinat ion of guilt for felony murder is not necessary to affirm the defendant’s first degree murder conviction because there is sufficient evidence to support the defendant’s conviction of first degr ee premeditated and deliberate murder. Therefore, we hold the error is harmless beyond a reason able doubt. See T.R.A.P. 36(b); Tenn. R. Cri m. P. 52(a); State v. Carpenter , 773 S.W.2d 1, 7-8 (Tenn. Crim. App. 1989).

B. DEFINITIONS OF INTENTIONALLY AND KNOWINGLY Next, the defendant contends that the trial court erred by neglecting to define the terms intentionally and knowingly w

ithin its jury ins

truction regarding the offense of felony murder. The state maintains that the defendant ha s waived the claim22

by failing to object to the instruction at trial. We hold th at the trial court correctly instructed the jury.

Although the defendant did not submit a requested instruction or object to the ones given at trial, he raised the issue in his motion for new trial. Pursuant to Rule 30(b), Tenn. R. Crim. P., th e failure to object to the content of an instruction given or to the denial of a requested instruction at trial does not bar raising the failure a s error in support of a motion for new tria l.

In its felony murder instr uction, the trial court i nformed the jury that the requirement of recklessnes s is also established by a showing that the defendant ac ted knowingly or i ntentionally. See T.C.A. § 39-11-301(a)(2). Although the trial court provided a definition for recklessness, it did not define kno wingly or intentionally within the felony murder instructi on. However, know ingly and intentionall

y are not elements of felony murder. See T.C.A. § 39-13-202(a)(2) (1991). Moreover, our court has concluded that the terms know ingly and intentionall

y are commonly used terms for which an instruction defining the terms need not be gi ven. State v. Raines , 882 S.W.2d 376, 383 (Tenn. Crim. App. 1994) ( “knowingly”) ; State v. B urnette Mize , No. 03C01- 9405-CR-00163, Claiborne C ounty, slip op. at 9-10 ( Tenn. Crim. App. Sept. 22, 1995) (“intentionally”) ; State v. Roger Gregory , No. 01C0 1-9003- CR-00066 , Sumner County, slip op. at 7 (Tenn. Crim. App. Dec. 12, 1990). In addition, the trial court correctly defined intentionally wi thin its first degree pr

emeditated and deliberate murder instruction and knowingly within its second degree murder instruction. The mere fact that the trial court could have given a more detai led instruction does not make the instructions given improper. We hold that the instruct ion given by the trial court adequately stated the law applicable to the mens rea req uired for a conviction of felony murder.23 C. DEFINITION OF RECKLESSLY The defendant also claims that the trial court errone ously defined the term “recklessly” i n its felony murder instr uction. Regarding the reckless mental state required for a convic

tion of felony murder, the trial court instructed the jur y according to an alternative pattern j ury instruction:

[a] person acts “reckless ly” if that person is aw are of and consciously disregards a substantial and unjust if iable risk either (1) that a particular r esult will oc cur; or (2) that a particular circumstance exists. The risk must beof such nature and degree that di sregarding it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. See T.P.I. - Crim. 2.10 (4th ed.). The statute defining the term “reckless” provides:

“Reckless” refers to aperson who acts recklessly with respect to circumstances

surrounding the conduct or the result of the conduct when the person is aware of but consciously disregards

a substantial and unjustifiabl e risk that t he circumstances exist or the result will occur. The riskmust be of such a nature and degree t h at 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 accused person’s standpoi nt

. T.C.A. § 39-11-30 2(c) (emp hasis add ed). The defend ant claim s that the above emphasized portions of the statute were either changed or deleted altogether, completely changing the meaning of the statutory la nguage.

The state asserts that the defendant als o waived this iss ue by failing to object contemporaneously to the instruction given by the trial court. Pursuant to Rule 30 (b), Tenn. R. Crim. P., a defendant is permitted to challeng e the content of an instruction or the denial of a requested instruction as error in support of a motion for new trial despite the fail ure to object at trial. Thi s rule has been interpreted b y our supreme court as a llowing clai ms of the denial of a requeste d instruc tion or of a positive error in the jury i nstructions but not of errors of omissions when no objecti on or special request was made at tri al. See State v. Lynn , 924 S.W.2d 892, 898-99 (Tenn. 1996). However, allege

d omissions in the charge must be raised at trial, or the issue is waiv

ed.24

Id . In addition, the fact that the in structions could have bee n more detailed does not render the instructions as given to be improper, and absent a special request for an additional charge, a tri al court will not be held in error. State v. Haynes , 720 S.W.2d 76, 85 (Tenn. Crim. App. 1986).

At trial, the defendant neither obj ected to the jury instr uction defining “recklessly” nor

made a special request that the trial court define the ter m as provided by T.C.A. 39-11-302(c). Rather, he asserted gener ally in his motion for new trial that the trial court incorrectly defined the elements of felon y murder.

We di sagree with the def endant’ s claim th at the de finitio n of “reck lessly” given by the trial court and provided by T.P.I.-Crim. 2.10 (4th ed.) is an incorrect stateme nt of the law. Our cou rt has pre viously hel d that th e language of the al ternative pattern jury instruction is adequate for the definition of “recklessly.” See State v. Parker , 887 S.W.2d 825, 82 8 (Tenn. Crim. App. 1994). We recognize that our court previously inter

preted T.C.A. § 39-11-302(c) as requiring that the jury “view the situation through t he eyes of the suspe ct” when de ciding whet her he or s he could have perceived and then chosen to ignore a “substantial and unjustifia ble risk.” See State v. Slater , 841 S.W.2d 841, 842-43 (Tenn. Crim. App. 1992). H owever, we also note that Tennessee law does not mandate any particular jury i nstructions be given so long as the trial court giv

es a complete charge on the appl icable law. State v. West , 844 S.W.2d at 151.

We be lieve that the patt ern jury ins truction for the d efiniti on of “re cklessly” given by the tria l court adequately defined the term because “in the situation” implies that the jury must look at the facts as viewed from the defendant’s standpoint. Also, the terms “reasonable person” and “would observe” as used by the trial c

ourt in its instruction have essenti ally the same meaning as the terms “ordinary per son” and25

“would exercise”

as provided in the statut ory definition. The fact that the j ury instruction could have been more detailed does not render the instruction given to be improper, and absent a special request , a trial court wi ll not be held in error for not augmenting otherwise adequate inst ructions. See State v. Haynes , 720 S.W.2d at 85 (“Mere meagerness of the charge is not reversible error, in the absence of a special req uest for an additional charge.”) . Thus, we conclude that the i nstruction sufficiently i nformed the jury of the definition of “recklessly” as it related to felony murder.

IV. OTHER JURY INSTRUCTIONS The defendant’s last argument is th at the trial court erred in instructing the jury (1) by deny

ing the defendant’s special r equest relating to the bu rden of proof for culpable mental state and the req uirement of culpable mental state and ( 2) by incorrectly instr

ucting the jury regarding lesser includ ed and lesser grade offenses. The state ass erts that the trial c ourt corre ctly instru cted the jury.

A. BURDEN OF PROOF The defendant asserts that the trial court shou ld have granted his request to instruct the jury regarding the burden of proof for and the requiremen t of a culpable mental state. The defendant requested that the following instru ctions be charged: Burden of P ro of of Culpability . -- A Defendant in this case may not be convicted of an offense unless the culpable mental state of the Defendant is prov en. This means that aperson commits an offense who acts intentio nally, knowingly, rec klessly, or wi

th criminal neg ligence

. Requirement

of Culpable Mental State . -- When the law providesthat criminal neglig ence suffices to establish an element of an offense, that element is also establ ished if a person acts intentionally, knowingly or reckl e ssly. When recklessness suffices to establish an element, that element is also establi shed if a perso n acts int entiona lly or knowin gly. When acting knowingl

y suffices to establish an element, that element is also est ablished if a perso n acts int entiona lly.26 If the definition of an offense withi n this title does not plainlydispense with a ment al el ement, intent, knowledge or recklessness suffices to establ ish the culpable mental state.

The trial court d enied the def endant’s reque st, stating that the charge adequately covered the areas. The record reflects that the trial court instructed the jury that the state had the burden of prov ing all of the elements of the cri me charged beyond a reasonable doubt. Although contained within the individual instruc tions for each offense, the charge provide d the culpable mental states req uired for each offense. Moreover, the trial court instructed the jury in its felony murder ins truction that “[t]he requirement of ‘reckless ’ is also established if it is shown that the defendant act ed knowingly or intentionally.” The trial court’s second degree murder instruction similarly detailed the mental elements.

The state’s contention is that the trial court correctly determined that the requested instruction w as adequately cover

ed in other areas of the charge . We agree. In criminal cases, the tr ial court has a duty to c harge the jury on all

of the law that applies to the facts of the case. State v. Harris , 839 S.W.2d 54, 73 (Tenn. 1992). Anything short of a complete charge denies a defendant his cons titutional right to tr

ial by a jury. State v. McAfee , 737 S.W.2d at 308. In our opinion, the instruc tions given by the trial court adequately covered the issue of culpable mental state. Th e state also argues that the last sentenc e of the defendant’s special reques t was not even applicable to the facts of the case, a nd thus, the trial court di d not err in its instr uction. Once again, we agree. For these reasons, we conclude that the trial court correctly instru cted the

jury r egardi ng the s

tate’s b urden of p roof and the requ irement of a culpable mental state.

B. LESSER OFFENSES6 The d efenda nt asse rted in his m otion for ne w trial that the trial co urt “erred in failing to charge the jur

y on cri minal responsi bili ty as to the lesser included of

fenses of second degree murder an d voluntar y manslaughter whi ch effecti vely depr ived the j ury of consi dering wheth er . . . Williams committed second degree murder or vol untary manslaught er and the Defendant being cri minally

responsibl e for the either of the se two les ser includ ed offen ses.” 27

Next, the defendant asserts that the trial court erroneous ly charged the jury regarding lesser included offenses for the cr ime of first degree murder. The defendant’s argument is two- fold: (1) the trial court

erred by omitting any

references to criminal responsibili

ty in its instructi ons relating to the less er included offense of second degree murder and the lesser grade offense of voluntary mansl aughter charged by the trial court, and (2) the trial court erred by refusing to charge the lesser included offense of criminally negligent homicide. The state contends that the trial court prop erly instructed the jury. We hold that the trial court did no t commit reversible error.

The defendant has a constitutional ri ght to complete and accurate instructions of the law. State v. McAfee , 737 S.W.2d at 308. T herefore, the trial court has a duty to give a complete charge of the law applicable to the facts of a case. State v. Harbison , 704 S.W.2d 314, 319 (Tenn. 1986). The failure to do so depr ives the accused of the right to a jur y trial. State v. McAfee , 737 S.W.2d at 308.

1. CRIMINAL

RESPONSIBILITY FOR LESSER OFFENSES First, the defendant argues tha t the trial court erred in its instructions relating to the lesser

included offense of second degree murder and the lesser grade of voluntary manslaught

er. The defendant contends that the failure to charge criminal responsibility in relation to the lesser offenses deprived him of the right to have the jury consider the lesser incl uded offenses. The state submits that the defendant has waived the issue by

failing to make a special r equest and by failing to include the issue in his motion for new tri al. We disagree. In his motion for new trial, the defendant specifi cally

includ ed the is

sue as g rounds fo r reli ef. 6 Pursuant to Rule 30(b), Tenn. R. Crim. P., a defendant may chall enge an instruction gi ven or the denial of a reque sted7 The 1989 Sentencing Act replaced i nvoluntar

y manslaughter wi

th the off

ense of crimina lly negligent hom icide. See T.C .A. § 3 9-13 -212 , Sen tenc ing C om mis sion Com me nts. In his motion for new t rial, the defendant argues that the error i n fail ing to i nstruct t he lesser i ncluded offense related to criminally negligent homicide and not involuntary manslaughter. 8 The record does not r eflect what

the tri al court o rigina lly proposed as it

s instruct ion rega rding crim inal re spo nsib ility. 28 instruction in his motion for a new trial althoug h neither an objection nor a s pecial request was made at tri al.

The record reflects that the defendant fil ed a motion requesting that the trial court instruct the jury on the lesser included and lesser grad e offenses of second degree murder, voluntar y manslaughter and inv oluntary manslaughter 7 . The jury instructions give n for the lesser offenses do not specific ally address crimin al responsibility. Al so, the instructions do not c ontain a criminal responsi bility provisi on generally applicabl e to all of the offenses charged. Rather, the criminal responsi bility provisions given by the trial court were incorporated in the instructions for the first degree murder counts.

The record is not clear w hether the defendant requested additi onal instructions regarding criminal responsibility for the lesser offenses. An off -the-record conference concerning jury charges was held in chambers at the close of trial. Later, the defendant objected on the record and o ut of the presence of the jury to the instruction given b

y the trial court in

counts one and two as to cr iminal responsibility

for the conduct of another. A day later, the defen dant filed a motion for mistrial. In his motion, the defendant asserted tha t a mistrial was necessary because the trial court failed to charge criminal responsibility for another’s conduct relating to the lesser offenses of second degree murder and v oluntary manslaughter. He claimed that during the jury instruction

conference, he requested that the trial court not change i ts proposed instruction 8 because tailoring the criminal responsibility provision did not allow it to apply to all other criminal offenses. The defendant argued that tailoring the criminal responsibility prov

ision restricted the j ury’s consideration of the lesser offenses, thus29

depriving him of the jur y’s consideration of w

hether Williams committed the lesser offenses for which the defendant should be hel d criminally respons ible.

Under these circumstances, we agree that it would have been preferable for the trial court to rel ate more clearly the cr iminal responsibility

instructions to all of the offen ses. Howeve r, althou gh the ins truction s could ha ve been mo re detail ed, we believe that the jury

was adequately ins

tructed regarding cr

iminal responsibility

in the jury inst ruction rel ating to fir st degree mu rder. We note that the United St ates Supreme Court has made the following observation regardi ng the evaluation of claims of erroneous jury instr

uctions: Jurors do not sit in solitary isolation booths parsing instructions forsubtle shades of meaning in the s ame way lawyer

s might. Differences among them in interpretation of inst ructions may be thrashed out in the deliberat ive proces s , with commonsense understanding of the instructions in the light of all that has taken place at t he trial likely to prevail over technical hairs plitting. Boyde v. California , 494 U.S. 370, 380-81, 110 S. Ct.1190, 1198 (1990); State v. Henry Eugene Hodges , No. 01S01-9505-CR-00080, Davidson County, sli p op. at 12 (Tenn. Apr. 28, 1997) (for publicati on); see also State v. Van Tran , 864 S.W.2d 465, 479 (Tenn. 1993). Although a techni cal argument can be made that the j ury was not advised to consider cr

iminal responsibility

of the defendant with respect to the lesser offenses of second degree murder and v oluntary manslaughter, such an interpretation of the jury’s process in analyzing the charge would not take into account the jury’s commonsense understanding of the inst ructions given under the facts showing that the defendant was not the actual kil ler. Under these circumstances, we hold that the l esser included and lesser grad e offense instructions giv en by the trial court w

ere not
erroneous.30 2. CRIMINALLY NEGLIGENT HOMICIDE Next, the defendant contends that the trial court should hav e instructed the jury regarding

criminally negli gent homicide because the proof at t rial supported such an instruction. The stat e argues that the record does not permit an inference of guilt for criminally negligent homicide, a lesser included and lesser grade offense of first degree murder, but instead clearly shows that the defendant is guilty of the g reater offense of first degree murder. W e hold that the trial court did not commit reversible error by failing to provide a criminally negligent homicide ins truction.
Under T.C.A. § 39-13-212, “[c]riminally negligent conduct which results in death constitutes criminall y negligent homicid e.” The definition of criminally negligent conduct is contained in T.C.A. § 39-11-302(d):

“Criminal negligence” refers to a person who acts with criminal negligence with respect to the circumstances

surrounding that person’s conduct or the result of that conduct when the

person ought to be aware of a s ubstanti al and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutesa gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the accused per son’s standpoint. Pursuant to T.C.A. § 40-18-110( a), a trial court is required “to charge the jury as to all of the law of each offense included in the indictm ent, without any request on the part of the defendant to do so.” When the evidence, introduced by either the state or the defendant, is suscepti ble of inferring guilt of either a lesser grade or class of the charged offense or a lesser i ncluded offense, there is a mandatory duty upon the trial court to charge

such lesser offense. SeeT.C.A. § 40-18-110(a); State v. Trusty , 919 S.W.2d 305, 310 (Tenn. 1996); Johnson v. State , 531 S.W.2d 558, 559 (Tenn. 1975); State v. Howard , 926 S.W.2d 579, 58 5-86 (Tenn. Crim. App. 1996). However, the instruction is not r

equired if there is no proo f in the record to support a conv iction for the lesser offense. State v. Trusty , 919 S.W.2d at 311.31 Our supreme court recently held that defendants are ent itled to jury instructions on all les

ser included offenses and on all le sser grades or class

es of the offense charged if the evidence w ould support a convicti on for the offense. State v. Trusty , 919 S.W.2d at 311. The instructions must be gi ven to allow the jur

y “to consider all relevant offenses in determining the appropriate of fense, if any, for conviction.” Id

. In its explanation of the entitlement to a jury instr uction on lesser included a nd lesser grade offenses, the court descri bed the difference between an offense of a “less er grade or class” and one that is “lesser included.” See State v. Trusty , 919 S.W.2d at 310-11. The statutory scheme det ermines whether an offense is a l esser grade or class. Id . at 311 (explaining that voluntary manslaug hter is a lesser gr ade but not a lesser included offense of first degree mu rder). For instruction purposes, an offense is a lesser included offense “if the el ements of the included offense are a subset of the elements of the charged offense and only if the greater offense cannot be committe d without also committing the lesser offense.” Id . at 310 (reaffirming the test set forth in Howard v. State , 578 S.W.2d 83, 85 (T enn. 1979) for determining whether an offen se is a lesser included offense). Rel ative to the facts of this case,criminally negli gent homicide is a lesser g rade or class and a lesser included offense of first degree murder

. See State v. Trusty , 919 S.W.2d at 311; State v. Lynn , 924 S.W.2d at 899.

In Strader v. State , 210 Tenn. 669, 362 S.W.2d 224, 228-29 (1962), our supreme court explained how the trial court should det ermine the need for a lesser included offense instruction. It stated that “where the evidence, upon any view the jury may take of it, permits an infer ence of guilt as to such les ser included offenses, it is the mandatory duty of the Trial J udge to charge all the l aw as to each of the offenses, and a failure to do so requires a reversal and a new trial.” Id .; see also State v. Boyce , 920 S.W.2d 224, 226 (Tenn. Crim. App. 1995). Thus, in effect, the trial court must conside r the evidence in the light most favorable to the existence of the lesser included offense and if the evidence so consider ed permits an inference of guilt of the lesser included32

offense, the trial court must gi ve instructions as to that lesser offense. Otherwi se, the trial court’s consider

ation of the evidence runs the r isk of invading the prov ince of the jury relative to

witness credibili

ty, the weight and s ufficiency of the evidence and the degree of the offense, if any, to be sust ained.

The evidence viewed i n the light most favorable to the existence of the lesser included offense reflects that bef ore the defendant and W illiams left the car, Williams reached across the driver’s side to get the def endant’s knife and placed it in his pocket. The defendant and Williams then entered the victim’s house. Both the defendant and Williams told the officers that they i ntended to scare the victi m but not to harm him. The evidence show s that Williams removed the knife from his pocket after the victim grabbed his

hair and leg. The proof was that Williams then stabbed the victim because he would not let him go and because “he had no choice.”

This evidence supports a c riminally neglig ent homicide instruction bas ed upon the defendant’s criminal responsibility for the cond uct of Williams. It would permit an inference that Williams acted with cr iminal negligence by

taking a knife with hi m to burglarize the v

ictim’s home. Both the defendant and Williams knew that the victim was inside when they enter ed the victim’s home. Although Williams stated that he planned to steal the victim’s money or guns and only wanted to scare the vi ctim, he ought to have been aware of a substanti al and unjustifiable risk that he would be confronted by the victi m and be in a si tuation whe re the knife mi ght be used a gainst the victim, causing the victim’ s death. Moreover, as mentioned earlier, the evi dence permits an inference that the defendant is crimi nally responsible for th e conduct of Williams. In addition to providing

the transportation and the w eapon used in the killing,the defendant was aware that the v ictim was inside w

hen he and Williams entered the victim’s home to rob the v ictim.33 The evidence is also susc eptible of inferring the defendant’s guilt for criminally negli gent homicide based on the defendant’s own criminally neg ligent conduct. Specifically, the defendant acted with criminal negligence because he knew that Williams armed himself with his knife before entering the victim’s home. Further, the defendant and Williams planned to steal either money or guns from the victi m. Therefore, the defendant sh ould have been aware of a substantial and unjustifiable risk that the circumstances w ere such that Williams could either use his knife or obtain a gun and either stab or shoot the victim during the commission of the burglary . Under these circumstances, the tr ial court should have i nstructed the jury regarding the lesser included offense of criminally neg ligent homicide.

However, error associated with the tri al court’s failure to ins truct a lesser included offense has been held to be harmles s when the jury finds the defendant guilty of the greater offense and rejects othe r lesser included offenses that ar e greater offenses than the one requested and w ere included in the instru ctions. See State v. Atkins , 681 S.W.2d 571, 577 (Tenn. Crim. App. 1984). Her e, the jury found the defendant guilty of both premeditated an d deliberate murder and felony murder, declining to return g uilty verdicts for the lesser offenses of second degree murder and voluntary manslaughter. We hold that the trial court’s de nial of the defendant’s request for a criminally negligent homicide instruction was harmless beyond a reasonable doubt.
In consideration of the foregoing and the record as a whole , the judgment of conviction is affirmed.
Joseph M. Tipton, Judge34

CONCUR:
Gary R. Wad e, Judge

Robert E. Burch, Special Judge