         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                    January 15, 2002 Session

      STATE OF TENNESSEE v. KENNETH ANTHONY HENDERSON

                     Appeal from the Criminal Court for Davidson County
                            No. 95-D-2609   Seth Norman, Judge



                     No. M1999-00547-CCA-R3-CD - Filed April 11, 2002


The Defendant, Kenneth Anthony Henderson, was convicted by a jury of second degree murder,
attempted second degree murder, and aggravated assault. The trial court merged the attempted
second degree murder and the aggravated assault convictions. The Defendant was sentenced to
twenty-three years for the murder, and to eleven years for the attempted murder, with the terms to
run consecutively. In this direct appeal the Defendant raises two issues: whether the evidence in
support of his murder conviction is sufficient, and whether the trial court erred in failing to instruct
the jury on certain lesser-included offenses. Finding that the trial court committed reversible error
in failing to charge certain lesser-included offenses, we reverse the Defendant’s convictions and
remand this matter for a new trial.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed and
                                        Remanded

DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH and ROBERT W.
WEDEMEYER , JJ., joined.

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Kenneth Anthony Henderson.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
Victor S. Johnson, District Attorney General; and Jon Seaborg, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                              OPINION

       The State’s proof established that, around lunchtime on May 22, 1995, Ricky Peebles,
Solomon Harris, Terrance Carter, and Taurus Cook went to a storage facility on Dickerson Road in
Nashville for the purpose of moving some furniture that Cook had stored there. Peebles was driving
a U-Haul truck, and Harris was riding with him in the passenger seat. Cook was driving Peebles’
Chevrolet Caprice and Carter was in the passenger seat with Cook. There was a pistol under Carter’s
seat, which Cook told Carter about when they arrived at the storage facility.
         When they arrived, Cook backed into a parking space located near the storage facility’s
office. Peebles parked the U-Haul a little ahead of and perpendicular to the Caprice. As Peebles sat
in the cab of the truck adjusting the radio, he saw in the side mirrors a white car behind the truck.
At least two men, including the Defendant, got out of the white car and began firing guns at the
Caprice. Peebles then heard a voice ask, “what do you want to do with the mother f-----s in the U-
Haul?” Peebles heard the Defendant answer, “Kill the mother f-----s.” At that point, Peebles
testified, he and Harris jumped out of the truck and ran for their lives. Peebles testified that he knew
the Defendant, having worked for him previously.

        Carter’s videotaped preliminary hearing testimony was introduced at trial because he had
since been shot and killed by the police during a bank robbery. According to Carter, he and Cook
were sitting in the Caprice when a white car pulled up. Four to five persons were in the car. Cook
opened his door and took two or three steps toward the white car. The driver of the white car opened
his door, reached out over the top of the hood, and shot Cook. Cook fell and the Defendant got out
of the passenger side of the white car and began shooting at Carter. Carter grabbed the pistol under
his seat and jumped out of the car and began running. Carter testified that he never fired his gun,
but a shell casing was found on the floor of the Caprice that matched the pistol Carter retrieved.
Carter ran across the street and into a field, dropping his pistol along the way. He testified that the
Defendant continued to shoot at him as he ran away. Carter stated that Cook also had a gun, but
never got it out. Carter did not know any of the men in the white car, but recognized the Defendant
from a photographic line-up. Carter identified the Defendant as the man who shot at him.

        John A. Grimes was in the storage facility’s office when the shooting occurred. He testified
that he saw the U-Haul truck pull up; from his view, he was looking at the front of the truck. He saw
the driver of the truck get out and start toward the back. Suddenly, the driver came running back up
and then ran through the bushes and over a fence that bordered the parking lot. He also saw the truck
passenger running away. Grimes testified that he saw a white car behind the U-Haul with four or
five people in it. Grimes resumed talking to the office manager and then heard what sounded like
marbles hitting the front of the building. Grimes looked out the window and saw that people in the
white car had gotten out. He saw two men with guns, and saw one of them shooting in the direction
of Grimes’ car, which was parked next to the Caprice. Seeing the gunfire, Grimes got down. When
he looked back, he saw the white car pulling out while three men were getting back into it: the two
men with guns and one other man. When Grimes went to look at his car, he saw someone on the
ground between his car and the Caprice. This man was trying to crawl into the Caprice and was
saying that he had been shot.

       Cook sustained a single gunshot wound to the abdomen, which proved fatal. The bullet was
recovered from Cook’s body.

        Police recovered from the scene a fully loaded .357 pistol that had blood on it, found near
the Caprice; a 9 mm. shell casing found in the Caprice; and fourteen other 9 mm. shell casings found
in two areas near the Caprice. Two live rounds were also found at the scene. A 9 mm. pistol holding
a round in the chamber and seven rounds in the magazine was found in the field across which Carter

                                                  -2-
ran; Carter acknowledged that this gun was the one he had retrieved from beneath the car seat. The
shell casing in the Caprice was determined to have been fired from this pistol. The other fourteen
shell casings had been fired from two different guns, but the guns from which they were fired were
not recovered. The bullet recovered from Cook’s body was not matched to any gun found during
the investigation. The .357 was determined to have been unfired, and no .357 shell casings were
found on the scene. Detective Pat Postiglione testified that his investigation indicated that Cook had
been holding this gun “at some point after he was shot.” The Caprice sustained three bullet holes,
two through the windshield.

         Bobby Scales testified that he had been involved in cocaine dealing with both Cook and the
Defendant. On the day before the shooting, Scales witnessed an argument between the Defendant,
a man nicknamed “Donut,” and Cook. Scales testified that the Defendant was angry at Cook for
dealing cocaine with Scales instead of himself. The next morning, Scales testified, the Defendant
called Scales and asked to speak to Cook. Scales stated that the Defendant and Cook had several
phone conversations that morning, and that they were negotiating a time to meet at the storage
facility. Scales testified that Cook had a gun when he left to go to the storage facility.

        Lottie Draper, the Defendant’s mother, testified that the Defendant had lost one of his legs
at the knee in the 1980s, and used a prosthesis. She also testified about the limp with which the
Defendant walked, and the difficulties in movement the Defendant’s disability caused.

        William Trotter testified on behalf of the Defendant, explaining that he had been driving on
Dickerson Road when he saw “a couple of [his] friends into a little squabble.” Trotter pulled over
and witnessed the shooting. He stated that he saw Scales, Carter and Cook sitting in a red car. A
man named Shake was in a white car. Shake and Scales got out of their cars and fired guns at each
other; Carter shot once from inside the car and then got out and ran. Trotter then saw another man
get out of the red car, who appeared as though something was wrong with him. Trotter did not see
the Defendant at the scene.

         Trotter testified on cross-examination that he met the Defendant a couple of months prior to
the trial, while they were in jail. After he asked the Defendant why he was in prison, Trotter told
the Defendant that he knew the Defendant had not done the shooting. On rebuttal, the State
introduced proof that Trotter was in jail on May 22, 1995, the day of the shooting.

       Eddie Wren also testified on behalf of the Defendant, stating that he had been driving down
Dickerson Road when he heard shooting. He stopped his car and, he testified, “saw a man walking
up on another guy, just shooting him while he was laying on the ground.” This man, he stated, did
not limp. He saw another man leaving the scene with “a running limp.”

                                          SUFFICIENCY

        The Defendant initially contends that the evidence adduced at trial is not sufficient to support
his second degree murder conviction. Tennessee Rule of Appellate Procedure 13(e) prescribes that

                                                  -3-
“[f]indings of guilt in criminal actions whether by the trial court or jury shall be set aside if the
evidence is insufficient to support the findings by the trier of fact of guilt beyond a reasonable
doubt.” Evidence is sufficient if, after reviewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Smith, 24 S.W.3d
274, 278 (Tenn. 2000). In addition, because conviction by a trier of fact destroys the presumption
of innocence and imposes a presumption of guilt, a convicted criminal defendant bears the burden
of showing that the evidence was insufficient. See McBee v. State, 372 S.W.2d 173, 176 (Tenn.
1963); see also State v. Buggs, 995 S.W.2d 102, 105-06 (Tenn. 1999); State v. Evans, 838 S.W.2d
185, 191 (Tenn. 1992); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

        In its review of the evidence, an appellate court must afford the State “the strongest legitimate
view of the evidence as well as all reasonable and legitimate inferences that may be drawn
therefrom.” Tuggle, 639 S.W.2d at 914; see also Smith, 24 S.W.3d at 279. The court may not “re-
weigh or re-evaluate the evidence” in the record below. Evans, 838 S.W.2d at 191; see also Buggs,
995 S.W.2d at 105. Likewise, should the reviewing court find particular conflicts in the trial
testimony, the court must resolve them in favor of the jury verdict or trial court judgment. See
Tuggle, 639 S.W.2d at 914. All questions involving the credibility of witnesses, the weight and
value to be given the evidence, and all factual issues are resolved by the trier of fact, not the appellate
courts. See State v. Morris, 24 S.W.3d 788, 795 (Tenn. 2000); State v. Pappas, 754 S.W.2d 620,
623 (Tenn. Crim. App. 1987).

        Second degree murder is defined as the knowing killing of another. See Tenn. Code Ann.
§ 39-13-210(a)(1). “A person acts knowingly with respect to a result of the person’s conduct when
the person is aware that the conduct is reasonably certain to cause the result.” Id. § 39-11-302(b).1
The proof at trial established that the Defendant and at least one other person acting with the
Defendant opened fire on Cook and Carter. As a result of this attack, Cook was shot and killed.
Whether or not the Defendant fired the bullet that killed Cook is irrelevant: “A person is criminally
responsible for an offense committed by the conduct of another if . . . [a]cting with intent to promote
or assist the commission of the offense, or to benefit in the proceeds or results of the offense, the
person solicits, directs, aids, or attempts to aid another person to commit the offense.” Id. § 39-11-
402. Taken in the light most favorable to the State, the evidence adduced at trial established that the
Defendant arrived at the scene of the crime with several other people. The Defendant and at least
one of these other people then fired multiple shots at Cook and Carter. The shooting took place in
broad daylight. There is no doubt that the Defendant and his cohorts’ actions were deliberate and
intended to kill their victims. They succeeded with victim Cook, shooting him once in the abdomen.
When they were finished shooting at the men in the Caprice, one of the Defendant’s cohorts asked
the Defendant what he wanted done with the men in the U-Haul. The Defendant responded, “Kill
the mother f-----s,” indicating that the Defendant and others in the white car were acting in concert.



         1
         Our supreme co urt has recognized that second deg ree murd er is a result-of-con duc t offen se. See State v.
Ducker, 27 S .W.3d 8 89, 8 96 (Ten n. 20 00).

                                                         -4-
The evidence is therefore sufficient to support the Defendant’s conviction for the second degree
murder of Taurus Cook. This issue is without merit.

                                   LESSER-INCLUDED OFFENSES

        The Defendant also contends that the trial court “erred in refusing to instruct the jury on the
lesser-included offenses such as [v]oluntary [m]anslaughter.” At trial, the Defendant requested the
judge to instruct the jury on “all the lesser includeds for homicide, and all the lesser includeds for
attempted homicide.” The trial court refused to instruct the jury on any lesser-included offenses
other than second degree murder and attempted second degree murder.

       Trial courts are under a duty to ‘“instruct the jury on all lesser-included offenses if the
evidence introduced at trial is legally sufficient to support a conviction for the lesser offense.”’ State
v. Burns, 6 S.W.3d 453, 464 (Tenn. 1999) (quoting State v. Langford, 994 S.W.2d 126, 128 (Tenn.
1999)). This duty exists even absent a request from the defendant. Id. In Burns, our Supreme Court
adopted a new three-part test for determining whether an offense is a lesser-included offense. See
6 S.W.3d at 466-67. Under the new test, which was largely derived from the Model Penal Code, an
offense is a lesser-included offense if:
                (a) all of its statutory elements are included within the statutory
                elements of the offense charged; or
                (b) it fails to meet the definition in part (a) only in the respect that it
                contains a statutory element or elements establishing
                         (1) a different mental state indicating a lesser kind of
                         culpability; and/or
                         (2) a less serious harm or risk of harm to the same
                         person, property or public interest; or
                (c) it consists of
                         (1) facilitation of the offense charged or of an offense
                         that otherwise meets the definition of lesser-included
                         offense in part (a) or (b); or
                         (2) an attempt to commit the offense charged or an
                         offense that otherwise meets the definition of lesser-
                         included offense in part (a) or (b); or
                         (3) solicitation to commit the offense charged or an
                         offense that otherwise meets the definition of lesser-
                         included offense in part (a) or (b).

Id. The Defendant in this case was charged with first degree premeditated murder and criminal
attempt to commit first degree premeditated murder.2 Under Burns, the lesser-included offenses of


        2
          The Defendant was also charged with, and convicted of, aggrav ated assault by use of a deadly weapo n. See
Tenn. Co de An n. § 39-13-1 02(a )(1)(B).

                                                        -5-
first degree premeditated murder include second degree murder; voluntary manslaughter; reckless
homicide; and criminally negligent homicide. See id.; Tenn. Code Ann. §§ 39-13-210, -211, -215,
-212. The lesser-included offenses of attempt to commit first degree premeditated murder are
attempt to commit second degree murder, attempt to commit voluntary manslaughter, and
misdemeanor reckless endangerment. See State v. Rush, 50 S.W.3d 424, 426 (Tenn. 2001).3 Thus,
we must determine whether the trial court erred in failing to instruct the jury on the lesser-included
offenses of voluntary manslaughter, reckless homicide, and criminally negligent homicide; and
attempted voluntary manslaughter and misdemeanor reckless endangerment.

         Our supreme court has recently held that, where an offense is determined to be a lesser-
included offense under part (a) of the Burns test, an instruction on the lesser offense is, as a general
rule, warranted. See State v. Allen, __ S.W.3d __, __, 2002 Tenn. LEXIS 76, *11-12 (Tenn. 2002).
Our supreme court reasoned that this general rule applies to Burns (a) lesser-included offenses
because, “[i]n proving the greater offense the State necessarily has proven the lesser offense because
all of the statutory elements of the lesser offense are included in the greater.” Id. at *12.

         As set forth above, first degree premeditated murder is the “premeditated and intentional
killing of another.” Tenn. Code Ann. § 39-13-202(a)(1). Voluntary manslaughter is a lesser-
included offense of first degree premeditated murder, but under part (b) of the Burns test rather than
part (a). See State v. Rush, 50 S.W.3d at 430 n.7; State v. Sims, 45 S.W.3d 1, 21 app. (Tenn. 2001).
The general rule set forth in Allen, then, does not apply with respect to this lesser-included offense.
To determine whether the trial court erred in failing to charge this offense, we turn to the two part
inquiry set forth in Burns:
                 First, the trial court must determine whether any evidence exists that
                 reasonable minds could accept as to the lesser-included offense. In
                 making this determination, the trial court must view the evidence
                 liberally in the light most favorable to the existence of the lesser-
                 included offense without making any judgments on the credibility of
                 such evidence. Second, the trial court must determine if the evidence,
                 viewed in this light, is legally sufficient to support a conviction for
                 the lesser-included offense.

6 S.W.3d at 469. Thus, in order to determine whether the trial court erred in refusing to charge the
jury on the lesser-included offense of voluntary manslaughter, we must determine whether any
evidence exists that reasonable minds could accept as to this lesser- included offense.

       Voluntary manslaughter is an “intentional or knowing killing of another in a state of passion
produced by adequate provocation sufficient to lead a reasonable person to act in an irrational

         3
            There are no offense s of attem pted reckless ho micide and attem pted crim inally n egligent hom icide in
Tennessee. See generally State v. Kimbrough, 924 S.W.2d 888, 891(Tenn. 1996) (citing with approval the statement
in Braxton v. United States, 500 U.S. 344, 351 (1991), that, “[a]lthough murder may be com mitted without an intent
to kill, attempt to commit murder requires a specific intent to kill.”)

                                                         -6-
manner.” Tenn. Code Ann. § 39-13-211(a). Thus, to support a jury instruction on voluntary
manslaughter, the proof must support findings that the accused committed the killing while in a
“state of passion” and that the passion resulted from “adequate provocation.” The proof in this case
supports neither of these elements. (Indeed, the Defendant’s theory of defense at trial was not that
he acted in a state of passion, but that he was not present at the scene.) Carter testified that the
Defendant got out of the passenger side of the white car and began firing his gun at Carter after the
driver of the white car shot Cook and Cook fell to the ground. While the record contains proof that
Carter fired his pistol while still in the Caprice, there is no proof that Carter fired upon the Defendant
before the Defendant began firing upon him. Nor is there any proof in the record that anyone in the
Caprice threatened the men in the white car, brandished their weapons at the men in the white car,
or began shooting at the men in the white car immediately before they were fired upon. In short,
there is simply no proof in the record that the Defendant was provoked in any fashion by either Cook
or Carter. Furthermore, there is absolutely no proof in the record that the Defendant shot at Cook
and/or Carter while in a state of passion. While there was proof in the record that the Defendant had
argued with Cook the day before, there is no indication that the Defendant shot at Cook and/or Carter
while in a rage sufficient to cause a reasonable person to act in an irrational manner. Rather, the
proof supports the State’s characterization of this shooting as an “ambush.” Accordingly, the trial
court committed no error in refusing to instruct the jury on the lesser-included offense of voluntary
manslaughter. Cf. State v. James Wesley Osborne, No. E1999-01071-CCA-R3-CD, 2001 Tenn.
Crim. App. LEXIS 437 (Knoxville, June 14, 2001) (where defendant was charged with and
convicted of first degree premeditated murder, trial court did not err in refusing to instruct the jury
on voluntary manslaughter where the Defendant argued that the victim’s death was accidental and
no evidence was presented that the victim’s death was the result of adequate provocation); State v.
Robert Lee Pattee, No. M2000-00257-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 329 (Nashville,
May 3, 2001) (where defendant charged with and convicted of first degree premeditated murder, the
trial court did not err in refusing to instruct the jury on voluntary manslaughter where the defendant
provided no evidence that his actions in killing the victim were the result of adequate provocation).

        We turn now to the lesser-included offenses of reckless and criminally negligent homicide.
Reckless homicide is the “reckless killing of another.” Id. § 39-13-215(a). “When recklessness
suffices to establish an element, that element is also established if a person acts intentionally or
knowingly.” Id. § 39-11-302(a)(2). Thus, reckless homicide is a lesser-included offense of first
degree premeditated murder under part (a) of the Burns test, because all of its statutory elements are
included within the statutory elements of premeditated murder. Similarly, a person commits
criminally negligent homicide when he or she causes a death by engaging in criminally negligent
conduct. See id. § 39-13-212(a). “When the law provides that criminal negligence suffices to
establish an element of an offense, that element is also established if a person acts intentionally,
knowingly or recklessly.” Id. § 39-11-302(a)(2). Thus, criminally negligent homicide is also a
lesser-included offense of first degree premeditated murder under part (a) of the Burns test. Under
Allen, then, we conclude that it was error for the trial court not to charge the jury as to the lesser-
included offenses of reckless homicide and criminally negligent homicide.



                                                   -7-
        We must now determine whether the trial court’s error was harmless beyond a reasonable
doubt. See State v. Ely, 48 S.W.3d 710, 727 (Tenn. 2001). Reversal is required unless we conclude
“beyond a reasonable doubt that the error did not affect the outcome of the trial.” Allen, __ S.W.3d
at __, 2002 Tenn. LEXIS 76, at *16. In making this determination, we must “conduct a thorough
examination of the record, including the evidence presented at trial, the defendant’s theory of
defense, and the verdict returned by the jury.” Id. at *22. We must further keep in mind our
supreme court’s admonition that “[t]he trial court must provide an instruction on a lesser-included
offense supported by the evidence even if such instruction is not consistent with the theory of the
State or of the defense. The evidence, not the theories of the parties, controls whether an instruction
is required.” Id. at *11.

         Upon our thorough review of the record, we cannot conclude beyond a reasonable doubt that
the trial court’s failure to instruct the jury on the lesser-included offenses of reckless homicide and
criminally negligent homicide did not affect the outcome of the trial. Although the evidence was
more than sufficient to have supported a verdict of first degree premeditated murder and attempt to
commit first degree premeditated murder, the jury in this case chose to convict the Defendant of the
only lesser offenses charged: second degree murder and attempt to commit second degree murder.
It is certainly conceivable that, given the option, the jury would have chosen to convict the
Defendant of even lesser offenses. Given the number of bullets fired at the scene, and given that
only one bullet struck a victim, the jury might reasonably have concluded that the Defendant was
merely trying to frighten a competitor in the drug trade, and killed Cook through recklessness or
negligence. Accordingly, we must reverse the Defendant’s conviction of second degree murder and
remand this matter for a new trial.

        We turn now to whether the trial court erred in failing to charge the jury on attempted
voluntary manslaughter and misdemeanor reckless endangerment as lesser-included offenses of
attempted first degree premeditated murder. For the same reasons we concluded that no instruction
was necessary on voluntary manslaughter with respect to the murder charge, we conclude that no
instruction was necessary for attempted voluntary manslaughter. We reach a different conclusion,
however, with respect to misdemeanor reckless endangerment.

        Our supreme court has held that misdemeanor reckless endangerment is a lesser-included
offense of attempted second degree murder under part (b) of the Burns test. See State v. Rush, 50
S.W.3d at 432.4 We must therefore determine whether there is a rational basis for a jury charge on
misdemeanor reckless endangerment, which requires reckless conduct placing another person in
danger of death or serious bodily injury. See Tenn. Code Ann. § 39-13-103(a). Given that we have
concluded that the proof supports a jury instruction on reckless homicide with respect to Cook’s
death, and recalling that Burns requires us to view the evidence liberally in the light most favorable
to the existence of the lesser-included offense, we are constrained to conclude that the proof likewise
supports a charge of misdemeanor reckless endangerment with respect to the Defendant’s shots at


       4
           As such, it is also a lesser-included offense of attempt to comm it first degree premed itated murder.

                                                           -8-
Carter. Furthermore, for the same reasons we cannot conclude beyond a reasonable doubt that the
trial court’s error in failing to charge reckless homicide did not affect the outcome of the case, we
cannot conclude beyond a reasonable doubt that the trial court’s error in failing to charge
misdemeanor reckless endangerment did not affect the outcome of the case. Accordingly, the
Defendant’s conviction of attempted second degree murder must be reversed and this matter
remanded for a new trial.

        In sum, we conclude that the trial court committed no error in failing to instruct the jury as
to the lesser-included offenses of voluntary manslaughter and attempted voluntary manslaughter.
However, we further conclude that the trial court committed reversible error in failing to instruct the
jury on the lesser-included offenses of reckless homicide and criminally negligent homicide with
respect to the murder charge, and on the lesser-included offense of misdemeanor reckless
endangerment with respect to the attempted murder charge. Accordingly, we reverse and remand
for retrial the Defendant’s convictions of second degree murder and attempted second degree
murder. Because the trial court merged the Defendant’s aggravated assault conviction into the
attempted second degree murder conviction, and because we are reversing and remanding the
attempted second degree murder conviction, the Defendant is also subject to being retried on the
charge of aggravated assault. This matter is therefore remanded for retrial on charges of second
degree murder, attempted second degree murder, aggravated assault, and all necessary lesser-
included offenses as may be required based upon the evidence presented during the trial.



                                               ___________________________________
                                               DAVID H. WELLES, JUDGE




                                                 -9-
