            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT JACKSON

                           SEPTEMBER SESSION, 1999          FILED
                                                           December 27, 1999

STATE OF TENNESSEE,             *                       Cecil Crowson, Jr.
                                *                      Appellate Court Clerk
                                       No. W1999-01647-CCA-R3-CD
      Appellee,                 *
                                *      SHELBY COUNTY
vs.                             *
                                *      Hon. James C. Beasley, Jr., Judge
DAVID ALLEN VAUGHN,             *
                                *      (Attempted Second Degree Murder)
      Appellant.                *



For the Appellant:                     For the Appellee:

W. Mark Ward                           Paul G. Summers
Asst. Public Defender                  Attorney General and Reporter
Suite 2-01, 201 Poplar Ave.
Memphis, TN 38103                      J. Ross Dyer
                                       Assistant Attorney General
A C Wharton                            Criminal Justice Division
District Public Defender               425 Fifth Avenue North
                                       2d Floor, Cordell Hull Building
                                       Nashville, TN 37243-0493


                                       William L. Gibbons
                                       District Attorney General
                                       Ms. Phyllis Gardner
                                       Ms. Karen Cook
                                       Asst. District Attorney General
                                       Shelby County Dist. Atty. General's Office
                                       201 Poplar Avenue - Third Floor
                                       Memphis, TN 38103



OPINION FILED:

AFFIRMED



David G. Hayes, Judge
                                                  OPINION



         The appellant, David Allen Vaughn, appeals his conviction by a Shelby
County jury for the offense of attempted second degree murder. In this appeal as of

right, the appellant raises the following issues for review:

         I. Whether attempted second degree murder exists as a criminal
         offense in this state;

         II. Whether the trial court erred in refusing to instruct the jury that the
         offense of attempted second degree murder requires the specific
         intent to kill; and

         III. Whether the trial court’s instructions to the jury as to the elements
         of the offense of attempted second degree murder constitute error.



         After review, we affirm the judgment of the trial court.


                                                Background



         Although the issues raised by the appellant present questions of law, we note

briefly the following undisputed facts established at trial. On June 5, 1997, Memphis

Police Officers responded to a request for emergency assistance at the residence of

the appellant. Upon their arrival, the officers discovered pieces of the victim’s skull

and pieces of brain tissue on the floor, blood splattered throughout the residence,
and a bloody aluminum baseball bat under one of the beds.1



         The appellant informed law enforcement officers that “he had hit his girlfriend
in the head with a baseball bat” and that “he thought that he hurt her real bad.”

Subsequently, after his arrest and after waiving his rights, the appellant provided a

more detailed statement, which related the following information: The appellant had
been living with Carey Doty for seven years and they had a four year old son

together. On June 5, 1997, the appellant and Ms. Doty had an altercation during

which the appellant struck Ms. Doty three or four times on the head with a baseball


   1
    Although the victim survived the attack, she remained hospitalized for approximately four
months after the beating. She sustained severe skull and brain damage. “[H]er skull is being
recons tructed p iece by piec e . . . in an effort to try to restore s ome norm alcy just to he r face an d to
the con figuration o f her sk ull.” “She lost a n eye . . . [and] literally lost a p ortion of he r brain.” In
addition to the severity of the physical injuries, the victim is totally disabled and is in the custody
and care of her parents. She is no longe r able to care for her son. She has had e xtensive
speech therapy in order to relearn her communication skills. Additionally, she has undergone
extensive amounts of reconstructive surgery and faces additional surgical procedures in the
future.

                                                        2
bat. The appellant explained that:

       Carrie [sic] and I were walking around the house talking. I asked
       Carrie [sic] where my bat was and she asked why and I told her so I
       could play ball with my son. She said something that struck me wrong,
       she smarted off. I turned around and struck her with the bat and then I
       struck her a couple of more times. I threw the bat down in the other
       room and got in the car and left. I went to my mother’s house and
       called my mother at work and told her what happened. I told her I was
       fixing to take the gun and shoot myself and she told me not to do that.
       ...

       Based upon this evidence, the jury found the appellant guilty of attempted
second degree murder.



           I. Validity of Offense of Attempted Second Degree Murder


       Relying upon our supreme court’s decision in State v. Kimbrough, 924

S.W.2d 888 (Tenn. 1996), the appellant contends that “there is no such criminal
offense of attempted second degree murder in the state of Tennessee.” In State v.

Kimbrough, the supreme court held that the offense of attempted felony murder

does not exist in Tennessee, as “it is logically and legally impossible to attempt to

perpetrate an unintentional killing.” Kimbrough, 924 S.W.2d at 892. Utilizing this

holding, the appellant submits, by analogy, that the “intent” requirements of the
attempt statute cannot be combined with the lesser mental state of “knowing.” We

reject the appellant’s argument.



       In State v. Kimbrough, the supreme court observed that, because the intent

required for an attempt is an intent to commit the contemplated crime, attempt to

commit murder requires a specific intent to kill. Kimbrough, 924 S.W.2d at 891.


The court suggested that the statutory provision on criminal attempt is inapplicable

to any crime requiring less than a specific intent. See generally Tenn. Code Ann. §

39-12-101(a)(1), (2), (3) (1997). Accordingly, the court held that the specific intent
required by the criminal attempt statute was inconsistent with the requisite felony

murder mental state of “reckless” because one cannot intend to commit an

unintentional, i.e., reckless, act. State v. Rodney D. Palmer, No. 02C01-9804-CR-

00111 (Tenn. Crim. App. At Jackson, Jul. 8, 1999) (citing Kimbrough, 924 S.W.2d at

890). Notwithstanding this conclusion, the court observed that “if an accused


                                           3
actually possesses the requisite intent to kill, he or she may be charged with

attempted murder.” Kimbrough, 924 S.W.2d at 892.



         Indeed, there is a difference between the mental states of intentional and

knowing as distinguished from reckless and criminal negligence. See State v. Dale

Nolan, No. 01C01-9511-CC-00387 at n.9 (Tenn. Crim. App. at Nashville, Jun. 26,
1997), perm. to appeal denied, (Tenn. Mar. 2, 1998). The mens rea of both

intentional and knowing involve a level of conscious awareness and volitional,

affirmative conduct, whereas, the mental states of reckless and criminally negligent
contemplate a disregard of the situation and unintentional conduct or failure to act.

Id. at n.9; see also State v. Rodney D. Palmer, No. 02C01-9804-CR-00111. Thus,

homicides requiring a mental state of “intentional” or “knowing” require the “intent to
kill.”



         “Second degree murder is a knowing killing.” Tenn. Code Ann. § 39-13-210

(1997). “Knowing” refers to a person who acts knowingly with respect to the conduct

or to circumstances surrounding the conduct when the person is aware of the nature

of the conduct or that the circumstances exist. See Tenn. Code Ann. § 39-11-

302(b)(1997). 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. One commits second degree murder if one knowingly tries to kill

another and succeeds in doing so. See State v. Craig Bryant, No. 02C01-9707-CR-

00286 (Tenn. Crim. App. at Jackson, Jan. 8, 1999), perm. to appeal denied, (Tenn.
Jun. 14, 1999). Accordingly, attempted second degree murder may be proven by

showing that the defendant “intentionally acted with the requisite culpability to

commit the offense of murder in the second degree” and the defendant “could have
been convicted of murder in the second degree . . . if he had actually killed the

victims.” State v. Dale Nolan, No. 01C01-9511-CC-00387 (citations omitted). In

accord with prior decisions of this court, we conclude that Tennessee’s attempt

statute is applicable to the offense of second degree murder. See, e.g., State v.

Eldridge, 951 S.W.2d 775 (Tenn. Crim. App. 1997); State v. Rodney D. Palmer, No.

02C01-9804-CR-00111; State v. Craig Bryant, No. 02C01-9707-CR-00286; State v.

Jose Holmes, No. 02C01-9505-CR-00154 (Tenn. Crim. App. at Jackson, Dec. 10,

1997), perm. to appeal denied, (Tenn. Sept. 21, 1998); State v. Cecil Skidmore, No.

                                            4
03C01-9502-CR-00039 (Tenn. Crim. App. at Knoxville, Apr. 24, 1997); State v.

Timothy Jenkins, No. 01C01-9508-CC-00269 (Tenn. Crim. App. at Nashville, Nov.

15, 1996). This issue is without merit.


                                  II. Jury Instructions



       Next, we address the appellant’s related issues involving jury instructions. At

trial, the appellant submitted a special instruction, requesting that the trial court

inform the jury that in order to be guilty of attempted second degree murder, the
defendant must have had the specific intent to “kill.” The trial court denied the

request. The appellant now contends that the trial court erred because: (1) the jury

was instructed that it could find the offense based on the intent to commit a
“knowing” homicide and (2) the court failed to instruct the jury that in order to find the

offense the defendant must have “intended” the killing.




       In the present case, the trial court instructed the jury:



       Any person who attempts to commit a criminal offense is guilty of a
       crime.

       For you to find a person guilty of criminal attempt, the state must have
       proven beyond a reasonable doubt the existence of the following
       essential elements:
       (1) that the defendant acted intentionally and knowingly to commit the
       specific offense of murder second degree . . .
                                          and
       (2) (a) that the defendant intentionally engaged in action or caused a
       result that would constitute murder second degree . . . if the
       circumstances surrounding the conduct were as the person believed
       them to be;
                                           or
            (b) that the defendant acted with intent to cause a result that is an
       element of the offense of murder second degree . . . and believed the
       conduct would cause the result without further conduct on his part;
                                           or
            (c) that the defendant acted with intent to complete a course of
       action, or cause a result that would constitute murder second degree .
       . . under the circumstances surrounding the conduct as the person
       believed them to be, and the conduct constituted a substantial step
       toward the commission of murder second degree . . . defendant’s
       action does not constitute a substantial step unless the defendant’s
       entire course of action is corroborative of the intent to commit the
       offense.

The court additionally instructed the jury as to the elements of second degree

murder:

                                             5
       For you to find the defendant guilty of [second degree murder], the
       state must have proven beyond a reasonable doubt the existence of
       the following essential elements:
       (1) that the defendant unlawfully killed the alleged victim; and
       (2) that the defendant acted knowingly.
(emphasis added).



       This instruction is almost verbatim Tennessee pattern instruction 4.01 on
attempt. See T.P.I. – Crim. 4.01 (4th ed. 1995). In State v. Eldridge, this court

approved the language in the fourth edition of the pattern jury instruction as the

instruction “expressly includes the defendant’s intent to commit the specific offense
as an essential element.” 951 S.W.2d at 779. This holding is in accord with State v.

Kimbrough, which holds that an attempt to commit murder requires a specific intent

to kill. Eldridge, 951 S.W.2d at 779 (citing Kimbrough, 924 S.W.2d at 891). See

also State v. Rodney D. Palmer, No. 02C01-9804-CR-00111. Accordingly, we

conclude that the trial court did not err in its instructions to the jury. The appellant’s

challenges to the jury instructions are without merit.



       In accordance with our supreme court’s holding in State v. Kimbrough and

consistent with previous decisions of this court, we conclude that no error of law

exists requiring reversal. The judgment of the trial court is affirmed.




                                    ____________________________________
                                    DAVID G. HAYES, Judge



CONCUR:



________________________________________
JOE G. RILEY, Judge



________________________________________
THOMAS T. W OODALL, Judge




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