        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs February 14, 2012

                 STATE OF TENNESSEE v. O’NEAL JOHNSON

              Direct Appeal from the Criminal Court for Shelby County
                       No. 0805447     Chris B. Craft, Judge


                 No. W2011-00975-CCA-R3-CD - Filed June 18, 2012


Following a jury trial, the defendant was convicted of attempted second degree murder, a
Class B felony. He was sentenced to serve twenty years in prison as a Range II multiple
offender. The defendant appeals the sufficiency of the evidence supporting his conviction
for second degree murder, based primarily on his contention that the evidence is not
sufficient to show that he acted knowingly or without adequately provoked passion. We
conclude that the evidence is sufficient to support the conviction and affirm the judgment of
the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and C AMILLE R. M CM ULLEN, J., joined.

Stephen C. Bush, District Public Defender, and Harry E. Sayle, III (at trial and on appeal),
and Michael Johnson (at trial), Assistant Public Defenders, for the appellant, O’Neal
Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Amy
P. Weirich, District Attorney General; and Stephanie Johnson and Marianne Bell, Assistant
District Attorneys General, for the appellee, State of Tennessee.

                                         OPINION

                                   Factual Background
       On December 3, 2007, after the defendant, O’Neal Johnson, heard that his fiancee 1
was having an affair with the victim, Willie Burnett, Jr., the defendant shot the victim. The
shooting took place at Methodist Laundry, the victim’s place of work, and the confrontation
began in the parking lot as the victim was exiting a vehicle driven by Quincy Woods. The
defendant was indicted for attempt to commit the first degree murder of Mr. Burnett, a Class
A felony, and for reckless endangerment of Mr. Woods with a deadly weapon, a Class E
felony. A jury found the defendant guilty of the lesser included offense of attempted second
degree murder on the first count and acquitted him of reckless endangerment. The defendant
was sentenced to twenty years imprisonment as a Range II offender, to be served
consecutively to a prior conviction for rape of a child and consecutively to a sentence for
contempt of court. The defendant filed a motion for a new trial on March 11, 2011, and it
was heard and denied that same day, after which the defendant filed a timely notice of appeal.
The defendant appeals his conviction, contending that the evidence is not sufficient to
support the verdict. Specifically, the defendant asserts that there was not sufficient evidence
that he acted knowingly and in the absence of a state of passion.

        At the multi-day trial, the State introduced numerous witnesses to testify about the
events of the day of the shooting and the subsequent search for the defendant. The victim
testified that he was a truck driver at Methodist Laundry at the time of the shooting.
According to the victim, he generally left the facility around 10:00 a.m. and returned between
3:00 and 4:00 in the afternoon. That week, the victim was training Quincy Woods, and Mr.
Woods was driving the vehicle, which was a small truck called a bob truck. The victim
stated that he knew the defendant because he had seen the defendant pick up the defendant’s
fiancee, and because the defendant had also worked briefly at Methodist Laundry. The
defendant was not employed there at the time of the shooting. The victim testified that at the
time of the shooting, he had been having a sexual relationship with the defendant’s fiancee
for a period of two months.

        According to the victim, at around 3:15 p.m., he and Mr. Woods had been sitting in
the truck for fifteen to twenty minutes doing some paperwork. The victim testified that the
security gate was open because the truck was parked too close to the sensor to allow it to
close. Mr. Woods then called the victim’s attention to someone approaching the truck on the
driver’s side. The truck’s height obstructed the victim’s view until the defendant had come
around the front of the vehicle to the passenger’s side, at which time the victim identified the
approaching individual as the defendant. The victim testified that he opened the door of the
car, at which point the defendant said, “I heard you was F’ing my girlfriend, and I’m going
to kill you.” The victim testified that he saw that the defendant had a gun in his waistband


        1
        It is the policy of this Court to protect the identity of minor victims of sexual assault. Because the
defendant, in a separate case, was convicted of the rape of his fiancee’s twelve-year-old daughter, who shares
her mother’s last name, we will not use the full name of the defendant’s fiancee in this opinion.

                                                     -2-
and tried to close the door. The defendant prevented him from shutting it. The victim finally
pushed the door open, jumped from the truck, and ran towards the building. According to
the victim, he did not say anything to the defendant and had no weapon of any kind. He
testified that although they struggled over the door, he never fought with or hit the defendant;
he testified that he did not know if he hit the defendant with the door when he began to flee.
He testified that while he was running away from the defendant, he heard “a couple” of shots
and was shot in his left leg. The victim testified that he ran through the closed doors and kept
running inside the building, heard more shots, and was shot in the right shoulder. The victim
stated that he kept running until he was shot again in his right leg, which broke. At that
point, the victim testified he fell and could no longer move. The victim’s testimony was that
he spoke with the police while under medication, but he recalled identifying the defendant
as his shooter. The victim picked the defendant as the shooter when he was shown a
photographic display on the following day.

        On cross-examination, the victim testified that, to the best of his knowledge, the
defendant had not known about his relationship with the defendant’s fiancee. The victim
testified that he had a girlfriend, Gloria Jackson, who also worked at Methodist Laundry and
also did not know about the relationship with the defendant’s fiancee until the day of the
shooting. The victim stated that he did not know if he had slammed the door on the
defendant’s hand during the struggle over the door. On redirect, the victim testified that the
defendant had not seemed upset as he approached the vehicle, but seemed angry after he
threatened to kill the victim.

        Quincy Woods also testified for the State. He testified that, generally, he would drive
the bob truck during the first part of the day and then return to the facility and switch to the
larger truck, which he would operate from about 3:30 p.m. to 5:30 or 6:00 p.m. Mr. Woods
testified that, on the day of the shooting, as he pulled in through the gate, he used his mirror
to observe a gray car pull in behind the truck, and then the gate closed. He testified that he
asked the victim if he knew who it was and noted that there were children in the car. The
victim stated that he did not know. Mr. Woods, who did not know the defendant at the time,
saw a man he later identified as the defendant walk up to the driver’s side of the truck, look
in the window, and then walk around the front of the truck to the passenger’s side. The
defendant looked puzzled when he looked in the driver’s side window and looked angry as
he began to go around the truck. Mr. Woods did not see anything in the defendant’s hands.

       Mr. Woods testified that the defendant pulled on the locked door and that the victim
then opened the door. The defendant asked the victim if he was having an affair with his
fiancee. According to Mr. Woods, the victim denied it, and the two men began to “tussle”
in the doorway as the victim attempted to shut the door and the defendant tried to keep it
open. Mr. Woods testified he then heard a shot, and the victim came out of the truck. Mr.
Woods’ testimony was that this first shot was fired while the victim was in the passenger’s


                                              -3-
seat and Mr. Woods was seated about a foot away. Mr. Woods testified that he could see the
two men from the waist up and the men continued to “tussle” until the victim hit the
defendant three times in the face and then ran away. Mr. Woods then stated he saw the
defendant run after the victim and heard two more shots but that he did not see the weapon
until the defendant exited the building. According to Mr. Woods, he had never seen the
victim with any sort of weapon. Mr. Woods testified that he heard five or six more shots in
the building and that the shots were back-to-back. He then saw the defendant come out of
the building with “some kind of weapon” in his hands, “like a gun.” Mr. Woods testified it
was a “hand pistol.” The defendant was coming towards the truck, so he stepped on the gas.
Mr. Woods testified he continued to observe the defendant in his side mirror and saw the
defendant drive through the closed gate on his way out. Mr. Woods gave a statement to the
police and was shown a mug shot of the defendant.

         On cross-examination, Mr. Woods acknowledged that on the day of the shooting, he
had given the police a statement and that his memory would have been better at the time. He
acknowledged that, when giving the statement, he was asked if he could describe the gun and
had responded that he had not see the gun, but only heard it. Mr. Woods testified that at the
time, he had told the police it was a handgun, but he did not know if the police had written
it down. He acknowledged having signed his written statement which the police prepared
for him and in which he stated he did not see the gun. On redirect, Mr. Woods further
explained that he could not describe the gun because he could not see it clearly due to the
distance, but he “could tell he had something in his hand,” and the object looked like a gun.
On re-cross, Mr. Woods further testified that he had put the vehicle into drive and had begun
to roll forward while the victim and defendant were fighting over the door. He also testified
that although his statement was that the defendant pulled the victim from the truck and fired
a shot, the men were in the doorway with the victim on the edge of the seat and the defendant
pulling him out when the gun fired.

        Randy Drake, who was a Methodist Laundry employee, testified that he was taking
the trash out a little after 3:00 p.m. when the laundry truck came in, followed by another
vehicle. He saw the defendant, whom he recognized as a former employee, get out of the
silver car, which he recognized as the vehicle the defendant habitually used to pick up his
fiancee. Mr. Drake testified that the defendant had an “automatic weapon” of about three or
four inches in his hand. Mr. Drake said he saw the defendant pull on the driver’s side door,
then run around to the other side, at which point Mr. Drake’s view of the defendant and
subsequent events was obstructed. Mr. Drake heard three or four shots, which appeared to
be moving towards him. Mr. Drake testified that he saw the defendant come out of the
building, turn his car around, and exit through the gate. Mr. Drake then went inside and put
a tourniquet on the victim’s leg. Mr. Drake gave a statement to the police and identified the
defendant from a photographic display.



                                             -4-
       On cross-examination, Mr. Drake explained that although he had said in his statement
to police on the day of the shooting that he did not see a weapon and that “when [the
defendant] came out of the building, he had his right arm down by his side,” he believed that
this was in response to a question regarding whether he saw a weapon when the defendant
came out, not whether he ever saw a weapon. Mr. Drake was adamant that he did see a
weapon, that he had told the officer as much, and that the police made a mistake. He
acknowledged having signed the statement, but stated he “just kind of glanced over it.”

        The defendant’s fiancee testified that she had been in a relationship with the defendant
for five years and had been living with him for two years at the time of the shooting. She
testified that the defendant at one time owned a gun. The defendant’s fiancee, who worked
at Methodist Laundry, testified that the defendant generally dropped her off at work in her
silver Mercury Sable.

        On the day of the shooting, after the defendant dropped her off, she discovered
through her manager that some of her co-workers had put a note by the machine where Gloria
Jackson, the victim’s girlfriend, worked. This note was about the defendant’s fiancee. The
defendant’s fiancee discussed it with another supervisor who told her not to worry about it
because Ms. Jackson had not seen her with the victim. At her 11:00 a.m. lunch break, the
defendant arrived at the facility and the defendant’s fiancee got into her car to eat with the
defendant. Ms. Jackson drove up to the driver’s side a few minutes later, got out of her car,
and asked the defendant if he knew that his fiancee was having a sexual relationship with the
victim. The defendant’s fiancee testified that the defendant asked Ms. Jackson how she
knew that and said that Ms. Jackson had not seen them. The defendant’s fiancee stated that
she then got out of the car to speak with Ms. Jackson when another co-worker stopped her
and advised her to speak to her supervisor about it. She got back in the car with the
defendant, and he asked her if Ms. Jackson’s accusation were true; she testified that she
denied it and said she did not want to discuss it. Because her break was over, she returned
to the facility and informed her supervisor about what had happened.

        At around 3:15 p.m., the defendant’s fiancee went to wash her hands in the back
restroom; when she was at the door, she heard a commotion. She testified that she called the
defendant from the restroom and was able to talk with him; although he asked her about what
Ms. Jackson had said, she still declined to discuss it with him. When she left the restroom,
a co-worker told her about the shooting. She testified that she spoke with the defendant on
the telephone the following day, when she and other members of her family attempted to
convince him to turn himself in. She testified that the defendant returned her car to her,
although she did not remember how she got it.

     On cross-examination, the defendant’s fiancee said that she was upset and crying
when she and the defendant discussed Ms. Jackson’s accusations in the car. She


                                              -5-
acknowledged that her response essentially confirmed Ms. Jackson’s accusations. She
testified that during her phone calls with the defendant, he told her he was hurt by her
actions. Contrary to the victim’s testimony, she testified that she believed she had spoken
with the victim after the encounter with Ms. Jackson and that she had informed him that the
defendant knew about their relationship. She testified that she was somewhat concerned that
the defendant would confront the victim and that Ms. Jackson would confront the victim.

        Samuel Noe, an employee who witnessed the shooting inside the building, also
testified for the State. Mr. Noe testified that he knew the defendant from having worked with
him for about a year or year and a half, and that he was aware that the defendant was in a
relationship with his fiancee, who was a co-worker. Mr. Noe testified that on the day of the
shooting, at around 3:15 or 3:20 p.m., he heard approximately six shots fired. Mr. Noe got
down and looked around and saw the defendant, wearing a hoodie, holding his arm out with
a small handgun and shooting toward the back of the building. Mr. Noe said that the
defendant was six to ten feet away from him and that the defendant was visible while he took
two or three steps before Mr. Noe fled to the opposite side of the building. The next day, he
identified the defendant from a photographic display.

       Jason Gallardo, an officer with the Memphis Police Department, testified that he and
another officer were the first to arrive on the scene. He testified that in the east hallway, he
observed bullet casings from the door leading up to where the victim was lying on the
ground. Officer Gallardo testified that it was possible that he could have moved or kicked
some evidence because his main goal was to attend the victim; he also testified that there
were some individuals attending the victim when he arrived and that the paramedics also
walked through the area. Officer Gallardo identified in a photograph the place where the
victim was lying by noting it was where a lot of placards identifying crime scene evidence
were placed. He also noted that evidence was recovered outside the doors. The victim was
covered in blood and was thereafter transported by the paramedics.

        A paramedic who treated the victim at the scene, Daryl McConnell, testified that when
he arrived on the scene, the victim was alert but had some early symptoms of shock. He
testified there was not a large amount of blood, which was an indication that the bullets had
not come out. Mr. McConnell testified that he cut off the victim’s clothes and noted that the
victim’s femur was broken or shattered, and there was an entrance wound on the back of his
leg. He also found two wounds on the left thigh and a gunshot wound in the right upper back.
Mr. McConnell testified that an injury to the femur can result in the severing of the femoral
artery and can be fatal. Mr. McConnell further testified that the bullet in the victim’s
shoulder could have defected and hit the heart, lungs, or spine, and that the wound was
potentially fatal. Mr. McConnell testified that the victim was able to move his extremities.
On cross-examination, Mr. McConnell testified that when a bullet remains lodged in the
body, there often is not a lot of blood, which could account for the absence of a blood trail


                                              -6-
in this case.

        Robert Tutt, a sergeant with the Memphis Police Department’s felony response unit,
testified that when he arrived, the crime scene had been secured. Sergeant Tutt interviewed
several witnesses individually, and asked other officers to separate them and bring them to
the police station, where officers, including Sergeant Tutt, took written statements. Sergeant
Tutt testified that the defendant was developed as a suspect based on the written statements
and that Sergeant Tutt gave some possible addresses for the defendant to the criminal
apprehension team.

        Jeffrey Garey, a patrolman with the Memphis Police Department tasked with crime
scene investigation, testified regarding the evidence collected at the scene. Officer Garey
testified that he collected and tagged evidence at the scene, created a crime scene sketch and
report, and took photographs. Officer Garey testified that he found fifteen spent Winchester
nine millimeter Luger bullet casings and four bullet fragments at the scene. He noted that
a standard nine millimeter weapon comes with nine to fifteen rounds. He stated that he did
not necessarily find every bullet casing, but that he looked for as long as he felt necessary.
According to Mr. Garey, evidence such as bullets and casings can get moved around as
officers and medical personnel respond at a crime scene. Mr. Garey testified that one casing
had been found outside the facility, one found on the door jamb, and the remainder were
inside the facility. Mr. Garey also identified pictures of bullet holes in the laundry equipment
and a photograph of a bullet recovered among lint in a dryer. Mr. Garey testified that he did
not see a gun at the crime scene. Mr. Garey testified that he placed the evidence in an
envelope and sealed it.

         The State next called Shelly Betts, a special agent forensic scientist in the firearms
identification unit at the Tennessee Bureau of Investigation, to testify as an expert witness.
Ms. Betts testified that she received the evidence in a sealed envelope and that she resealed
it after examining the evidence. She testified that the envelope contained fourteen casings
and five bullet fragments. She testified that she was able to determine that all fourteen
casings were fired from the same firearm, which was a nine millimeter Glock semi-automatic
pistol. She testified that this weapon would hold 10-15 rounds in the magazine but could
also have one in the chamber. She was able to determine that all of the bullets were fired
from the same class of weapon by the same manufacturer and probably same model but could
not conclusively say they were from the same firearm.

        Michael Schaeffer, who was at the time a sergeant in the felony assault unit for
Memphis Police Department, testified for the State regarding the process of identifying the
defendant. Sergeant Schaeffer stated that he received a packet containing supplements or
reports from the after-hours felony response unit on the morning of December 4, 2007. As
a result, he asked another officer to choose photographs for a photographic display to assist


                                              -7-
witnesses in identifying the shooter. Sergeant Schaeffer testified that he went over the advice
sheet accompanying the photographic display with the witnesses and asked them to fill it out
and sign it. He testified that he handed the photos to the witnesses from the bottom of the
page to avoid the appearance that an accidental placement of his finger was meant to signal
the suspect. The victim and three other individuals identified the defendant. Sgt. Schaeffer
also created a wanted flier for the criminal apprehension team and took a statement from the
victim in January.

        Michael Warren, the State’s next witness, testified that he worked with the organized
crime unit and the criminal apprehension team of the Memphis Police Department. He
testified that, in the course of searching for the defendant for several hours, he was able to
speak with him on the telephone with the assistance of the defendant’s fiancee. The
defendant refused to turn himself in and eventually hung up.

       Anthony Townsend, who was tasked with finding fugitives as part of the Shelby
County Sheriff’s Office’s U.S. Marshals Service Task Force, testified regarding the
apprehension of the defendant. He testified that he had conducted surveillance and spoken
with defendant’s fiancee, but did not capture the defendant until December 14, 2007, when
he received information that the defendant’s fiancee would be picking up her children and
followed her vehicle to a hotel. When officers knocked, she opened the door to her hotel
room, and the defendant was there with two of her children. At that point, the defendant was
taken into custody.

        The defendant testified at trial that he had been in a relationship with his fiancee for
five or six years and that they had been living together for two and a half years, along with
her four children from a prior relationship. He testified that he had worked at Methodist
Laundry for close to one year and that his employment ended about one year prior to the
shooting. That day, he had dropped off the children at school before 7:00 and then had
dropped off his fiancee at work. He returned to have lunch with her, as was his custom,
bringing food so that they could eat in the car. However, he testified that he never got the
chance to eat because Ms. Jackson pulled up in her truck and accused his fiancee of having
an affair with the victim. Although Ms. Jackson referred to him as “my man,” the defendant
testified that he knew she meant the victim. The defendant testified that he asked Ms.
Jackson how she knew about the relationship or what made her think that. The defendant’s
fiancee got out of the car and began arguing with Ms. Jackson until another co-worker
stopped her and Ms. Jackson drove off. She then returned to the car with the defendant. She
was crying, but she denied having the relationship. She told the defendant she did not want
to discuss it at that point, then returned to work, as her break time had expired.

       The defendant testified he did not want to believe the rumor and did not believe it at
the time. However, the defendant also testified that he “knew something wasn’t right”


                                              -8-
because his fiancee was crying, and that he suspected she was not telling the truth after he
left. He attempted to talk with her on the telephone, but she did not answer. The defendant
was upset and unable to eat his lunch. He returned to his landscaping job until it was time
to pick up the children.

        At around 3:15 p.m., the defendant arrived at Methodist Laundry with the children.
He noticed that the bob truck was in the driveway and the gate was open. He pulled in and
parked approximately six feet behind the truck. Although the defendant did not know if the
victim was working, he knew that it must be one of four drivers operating the bob truck. The
defendant testified that he just wanted to ask the victim about Ms. Jackson’s accusation. The
defendant testified that when he saw Quincy Woods, he went around the front of the truck
to the passenger’s side. He testified that he had nothing in his hands at the time and that he
was not behaving in an aggressive manner but simply wanted to ask the victim about the
accusation. The victim saw him and opened the door “a little bit,” and the defendant greeted
the victim and then asked if he was “messing with” his girlfriend. The defendant denied ever
having threatened to kill the victim. The defendant testified that at that point, the victim
denied the relationship and attempted to pull the car door shut, but the defendant’s arm was
caught in the door. A struggle ensued, in which the defendant attempted to free his arm. The
defendant testified that the victim then pushed the door open, striking it against the
defendant’s face. According to the defendant, the victim them jumped from the car and hit
the defendant three times in the face. At that point, the defendant testified that he noticed the
victim had a gun. When he saw the gun, the defendant feared for his life. The defendant
stated that they wrestled over the gun and it went off. When the defendant gained control of
the gun, he looked to see if he had been injured; the victim ran off in the meantime.

       The defendant testified that he ran after victim and fired the gun; he testified that he
“fired up in the air, boom, boom, and I think when I fired it came down,” and that was when
the victim was injured in his right leg and his shoulder. He was nervous, scared, and
sweating. He felt an adrenaline rush during the struggle with the victim. The defendant
returned to his car and told the children he would drop them off. He testified that as he was
leaving, the gate began to close and the back of his car hit the gate. According to the
defendant he did not turn himself in because he was feeling scared and depressed. The
defendant testified that he did not go to the laundry with the intent to kill the victim and did
not intend to kill him at all.

        On cross-examination, the defendant testified that the arrival of the afternoon truck
could be unpredictable. He testified it was his right arm that was caught in the truck door.
According to the defendant, he intended to leave after the victim denied the affair, and “that
would have been the end of it right there. He assaulted me with the door.” The defendant
testified that during the struggle, the victim grabbed the gun, which had been in the victim’s
waistband, and the defendant was scared. He testified that he did not have the gun until after


                                               -9-
it had been discharged. The defendant further testified that after he had gotten the gun away
from the victim, he looked to see if he had been injured and the victim ran off and was gone.
The defendant testified that “from looking the point now I was safe” and he would have been
safe “[i]f I would have just walked away.” The defendant stated that he ran after the victim
and turned left inside the building to pursue him. The defendant’s testimony confirmed that
he owned a gun, but he stated that it was a .38 revolver and that he kept the gun in his closet.
The defendant testified that he did not know if the bullets had run out when he ceased firing
the gun, but stated that he was recalled to the situation when he saw an older lady who
worked at the laundry and who reminded him of his grandmother. He stated he had gone five
feet up the aisle past the turn at that point. The defendant testified that when he saw this
employee, who worked near Mr. Noe, he turned around and threw the gun to the side on his
way out. The defendant testified he did not wear hoodies and had on a camouflage jacket.

       The defendant testified that he did not call the police. He testified that his fiancee
called him, but he did not have the chance to explain the situation to her because she was
hysterical. He stated that he spent the night in his car and spoke to her on the phone all night;
the defendant testified that at this point, he told her his version of the events. He stated that
he did not know why she did not mention this in her testimony.

                                            Analysis

        The defendant challenges the sufficiency of the evidence supporting his conviction
for attempted second degree murder. Specifically, the defendant points to the fact that he did
not in fact kill the victim as proof that he did not have the requisite mental state. He also
contends that the evidence does not show the absence of a state of passion during the
shooting.

        Under Tennessee Rules of Appellate Procedure, Rule 13(e), a conviction shall be set
aside “if the evidence is insufficient to support the finding by the trier of fact of guilt beyond
a reasonable doubt.” A challenge to the sufficiency of the evidence must consider “whether,
after viewing 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.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis omitted). All conflicts in evidence
are resolved in favor of the State’s theory, and the Court may not re-weigh or re-evaluate the
evidence. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). The State is entitled to the
strongest legitimate view of the evidence and all reasonable and legitimate inferences that
may be drawn from the evidence. State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999). A
presumption of guilt replaces the presumption of innocence, id., and the burden of proving
the evidence insufficient to sustain the verdict falls upon the defendant, State v. Lewter, 313
S.W.3d 745, 747 (Tenn. 2010).



                                              -10-
       Second degree murder under Tennessee Code Annotated section 39-13-210(a)(1)
(2012) is defined as a “knowing killing of another.” Conduct is knowing “when the person
is aware of the nature of the conduct or that the circumstances exist. 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.” T.C.A. § 39-11-302(b). Criminal attempt is defined
in Tennessee Code Annotated section 39-12-101:

              (a) A person commits criminal attempt who, acting with the kind
              of culpability otherwise required for the offense:
              (1) Intentionally engages in action or causes a result that would
              constitute an offense, if the circumstances surrounding the
              conduct were as the person believes them to be;
              (2) Acts with intent to cause a result that is an element of the
              offense, and believes the conduct will cause the result without
              further conduct on the person’s part; or
              (3) Acts with intent to complete a course of action or cause a
              result that would constitute the offense, under the circumstances
              surrounding the conduct as the person believes them to be, and
              the conduct constitutes a substantial step toward the commission
              of the offense.

        In this case, the evidence, viewed in the light most favorable to the State, shows a
mental state sufficient to support the conviction. Resolving all conflicts of evidence in favor
of the State, the testimony at trial showed that the defendant discovered his fiancee’s
infidelity a few hours prior to the shooting, and the defendant was not in a state of passion
when he walked up to the bob truck. The defendant approached the unarmed victim and
stated his intention of killing him. The victim attempted to evade the defendant by closing
the truck door; the defendant struggled to keep the door open and discharged his firearm
during the struggle. The victim exited the truck and fled into the building. The defendant
pursued the unarmed victim through the closed doors, around a corner, and down a corridor,
discharging his firearm at least fourteen times during the incident. The defendant left the
scene with his weapon and remained at large for a number of days, refusing to turn himself
in.

       “[W[hether a knowing killing resulted from ‘a state of passion produced by adequate
provocation sufficient to lead a reasonable person to act in an irrational manner’ is a jury
question.” State v. Williams, 38 S.W.3d 532, 539 (Tenn. 2001) (quoting State v. Johnson,
909 S.W.2d 461, 464 (Tenn. Crim. App. 1995)). The defendant presented his version of
events – that the victim was armed, that the victim assaulted him, that he took the gun from
the victim, and that he pursued him in a state of passion, shooting into the air – to the jury.
The jury was tasked with deciding the question of whether the defendant acted with the


                                             -11-
requisite mental state, State v. Inlow, 52 S.W.3d 101, 104-05 (Tenn. Crim. App. 2000), and
found he did. We are also unpersuaded by the argument that the mens rea is disproved by
the victim’s survival. Attempt is by definition the failure to accomplish the crime, State v.
Kimbrough, 924 S.W.2d 888, 890 (Tenn. 1996), and the victim’s survival does not negate
the defendant’s mental state. The issue for appellate review is simply whether the evidence
was sufficient to support the elements of attempted second degree murder. State v. Johnson,
909 S.W.2d at 464. We conclude that it was.

                                     CONCLUSION

       Based on a careful review of the record, we conclude that the evidence was sufficient
to support the defendant’s conviction for attempted second degree murder, and we affirm the
judgment of conviction.




                                                   _________________________________

                                                   JOHN EVERETT WILLIAMS, JUDGE




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