         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                      May 8, 2007 Session

                       STATE OF TENNESSEE V. LIA BONDS

                  Direct Appeal from the Criminal Court for Shelby County
                           No. 05-00926 W. Mark Ward, Judge



                   No. W2006-01943-CCA-R3-CD - Filed November 2, 2007


Appellant, Lia Bonds, was indicted for second degree murder. After a jury trial, Appellant was
convicted as charged and sentenced to twenty years in incarceration. Appellant appeals the judgment
of the trial court, arguing: (1) the evidence was insufficient to support her conviction; (2) the trial
court erred by refusing to charge the jury with the lesser included offenses of reckless endangerment
and assault; (3) the prosecutor’s rebuttal argument was improper; and (4) her sentence was excessive.
After a thorough review of the record, we determine that the evidence was sufficient to support the
conviction and that Appellant waived the issue regarding the impropriety of the prosecutor’s rebuttal
argument. Further, we determine that the trial court erred by failing to instruct the jury on the lesser
included offenses of misdemeanor reckless endangerment and assault, but that the error was
harmless. However, because Appellant was improperly sentenced under the 2005 amendments to
the 1989 Sentencing Act where the record contained no waiver of ex post facto provisions, we
remand the matter to the trial court for resentencing.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Trial Court are Affirmed in Part;
                    Sentence Vacated; Remanded for Resentencing.

JERRY L. SMITH , J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J., and NORMA
MCGEE OGLE, J., joined.

Claiborne H. Ferguson, Memphis, Tennessee, for the appellant, Lia Bonds

Robert E. Cooper, Jr., Attorney General & Reporter; David H. Findley, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Chris Scruggs, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                               OPINION

                                        Factual Background


       In October of 2004, the victim, Ashley Webster, was nineteen years old and lived with her

boyfriend, Rico Allen in an apartment at 1852 Keltner Street in Memphis. Before Mr. Allen started

dating the victim, he was in a romantic relationship with Appellant. The relationship between

Appellant and Mr. Allen continued while Mr. Allen was living with and dating the victim. At some

point, the victim became aware of the continuing nature of the relationship between Appellant and

Mr. Allen. The two women started “communicating” with each other in a hostile manner, including

making threatening phone calls to each other. Appellant had even gone so far as to accuse Mr. Allen

of burglarizing her home, and Mr. Allen was arrested based on Appellant’s claims to police. The

accusations eventually resulted in dismissed charges. While Mr. Allen was in jail on the charges,

Appellant left a copy of Mr. Allen’s “rap sheet” on the victim’s car windshield with the words,

“stupid bitch you [sic] next” written on it.



        On the morning of October 28, 2004, Mr. Allen woke up and left the apartment while the

victim was still sleeping. After leaving the apartment, Mr. Allen went to hang out at a friend’s

house. Appellant’s car pulled up outside the friend’s house. When Appellant parked, she noticed

that Mr. Allen had the victim’s car. At that time, Appellant and Mr. Allen were involved in a

paternity dispute regarding Appellant’s son. Despite the dispute, Appellant wanted to find out if Mr.

Allen planned on going to the hospital to see her son, who was having surgery that day. When Mr.



                                                 -2-
Allen informed Appellant that he would not be going to the hospital, Appellant left. According to

Appellant, Mr. Allen had previously told her that he would come to the hospital. Appellant was

“mad” and felt “intimated . . . as well as jealous” when she discovered that Mr. Allen was driving

the victim’s car. According to Appellant, Mr. Allen told her that “the relationship between him and

her [the victim] was over and . . . that they no longer communicated.”



       Sometime later that day, Appellant went over to the victim’s house to “let her know that [she]

had just been with her man.” Appellant knocked on the door, and the victim asked who was at the

door. When Appellant did not respond, the victim opened the door. Appellant told the victim “your

nigga’ going to get your windows busted out your car.”



       According to Appellant, who testified at trial, the victim tried to push Appellant out of the

house. Appellant would not leave so the victim hit Appellant with something she was holding in her

hand, possibly a cell phone. The women “began to fight,” then the victim went to the kitchen.

Appellant was still standing in the living room at the time. The living room was closer to the front

door than the kitchen. Appellant could have retreated through the front door, but was afraid that the

victim would have “proceeded behind” her out of the front door. Once in the kitchen, the victim

reached for a pair of scissors that were located in the butcher block knife holder on the kitchen

counter. The entire knife block fell to the floor, scattering knives everywhere. The victim began to

stab and cut Appellant with the scissors, first on the arms and then on her head.




                                                -3-
       At some point during the fight, the victim dropped the scissors. Appellant grabbed the

“closest knife” which “happened to be the butcher knife” that was approximately eight inches long.

The women were fighting face to face, holding each other by the hair. Appellant tried to stab the

victim in a “spot to where [she] felt would not be detrimental to her life,” but agreed at trial that

stabbing someone with an eight-inch butcher knife could result in death. Appellant stabbed the

victim with “two very quick jabs” in the right side of the victim’s neck, “not with excessive force

but just enough to cut her so that she can let me go.” The victim let go of Appellant. Appellant

turned around and ran out of the house, taking the knife with her. Appellant was cut several times

and had a bite mark on the inside of her right arm, opposite her elbow. Appellant denied that it came

about because she had her arm around the victim’s neck. When she left the victim’s apartment,

Appellant went straight home and threw the knife in the bushes.1



       Darian Howery, a sanitation engineer with Waste Management, was picking up trash at the

victim’s apartment complex that same day. Between 10 a.m. and noon, he saw Appellant, armed

with a butcher knife, run away from an apartment and get into a car. Appellant had blood dripping

down her neck. Mr. Howery then saw a body lying in the grass. He notified the apartment manager,

who called the police.



       When Appellant arrived at her house, she called the police to get medical care for her wounds

and report that she had been assaulted by the victim. She felt that calling the police would be faster

than driving herself to the hospital. When Officer Dionnie Smith arrived at Appellant’s apartment


       1
           The knife was later located by the police when Appellant told them where she had thrown the knife.

                                                         -4-
in response to her report of assault, Appellant told him that she was outside a store and was attacked

by the victim, who was armed with a knife.2 Appellant did not appear to be in any kind of mortal

danger, despite having several cuts and scratches on her neck and arms. Appellant informed the

officer that she got the knife away from the victim, swung at her, then drove home to call the police.



       Further investigation by the officer revealed that there was no store at the street address given

by Appellant. Officer Smith also learned that the victim was found dead outside her apartment.

Appellant was arrested and taken for medical treatment, but was not notified at that time about the

victim’s death.



       Investigator Lezley Currin met with Appellant after her arrest. Appellant initially repeated

the story she told to Officer Smith, that she was assaulted by the victim with a box cutter or knife

outside a grocery store. When Investigator Currin informed Appellant that the victim was dead,

Appellant broke down and stated that she did not mean to kill the victim. Appellant insisted that she

went to Appellant’s house to make her mad and that the victim asked her to leave, but Appellant

forced her way inside the apartment. Once inside the apartment, Appellant told police that the

women began fighting, with the victim striking the first blow. Appellant maintained that they ended

up in the kitchen where the victim grabbed a pair of scissors and began stabbing her in the back,

head, and arms. Appellant stated that the women were fighting face to face when Appellant picked

up a knife with her right hand and stabbed the victim twice in the right side of the neck.




       2
           Appellant maintained at trial that she told the officer that the victim was armed with box cutters.

                                                           -5-
       Officer Charles Cathey processed the crime scene at the victim’s apartment. He located

blood on the porch steps and noticed that the living room was in disarray, suggesting that a struggle

had taken place. There was blood all over the living room furniture, as well as on the floor and

ceiling of the kitchen. The butcher block knife holder was on the floor. Although it had spaces for

fourteen implements, there were only seven knives and a pair of scissors in the kitchen at the time.

The blood trail led from the victim’s apartment to another apartment. Blood was also found in

Appellant’s car on the driver’s seat, as well as on the bumper and back light. The blood on the

scissors belonged to both Appellant and the victim, however the blood on the knife belonged only

to the victim.



       The victim died as a result of a two-track stab wound in her neck. The wound was a little

longer than two inches in length and was about five inches deep. The victim also had cuts on both

of her hands, which were consistent with trying to grab the knife during the attack. The neck wounds

severed both the carotid artery and the jugular vein and punctured the victim’s right lung. The victim

bled to death, but could have remained conscious for a few minutes after she was stabbed.



       Appellant was indicted in January of 2005 by the Shelby County Grand Jury for the second

degree murder of the victim. The trial of the matter occurred on May 15-19, 2006. At the

conclusion of the jury trial, Appellant was convicted of second degree murder as charged in the

indictment. At a sentencing hearing, the trial court sentenced Appellant to twenty years in

incarceration. Appellant filed a timely motion for new trial, which was denied by the trial court. On

appeal, Appellant presents the following issues for our review: (1) whether the evidence was


                                                 -6-
insufficient to support her conviction; (2) whether the trial court erred by refusing to charge the jury

with the lesser included offenses of reckless endangerment and assault; (3) whether the prosecutor’s

rebuttal argument was improper; and (4) whether Appellant’s sentence was excessive.



                                              Analysis



                                     Sufficiency of the Evidence



       Appellant complains on appeal that the evidence was insufficient to overcome her claim of

self-defense and, in the alternative, that the evidence was insufficient to sustain the conviction for

second degree murder. Specifically, Appellant states that the State failed to present any evidence

that “negated the claim of self-defense” and failed to prove that the killing of the victim was a

“knowing killing” because even though Appellant admittedly stabbed the victim, her actions “were

not such that she was aware that the conduct was reasonable [sic] certain to cause the death [of the

victim].” The State disagrees, arguing that Appellant could not assert that she was “reasonably

entitled to use deadly force to protect herself” from the victim, who was unarmed when Appellant

stabbed her. Moreover, the State argues that Appellant made no showing that the victim used

unlawful force. Finally, the State contends that the proof is in “stark contrast” to Appellant’s

assertion that she did not knowingly kill the victim.



       When a defendant challenges the sufficiency of the evidence, this Court is obliged to review

that claim according to certain well-settled principles. A verdict of guilty, rendered by a jury and


                                                  -7-
“approved by the trial judge, accredits the testimony of the” State’s witnesses and resolves all

conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994);

State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the accused is originally cloaked

with a presumption of innocence, the jury verdict of guilty removes this presumption “and replaces

it with one of guilt.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the

burden of proof rests with the defendant to demonstrate the insufficiency of the convicting evidence.

Id. The relevant question the reviewing court must answer is whether any rational trier of fact could

have found the accused guilty of every element of the offense beyond a reasonable doubt. See Tenn.

R. App. P. 13(e); Harris, 839 S .W.2d at 75. In making this decision, we are to accord the State “the

strongest legitimate view of the evidence as well as all reasonable and legitimate inferences that may

be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is precluded from

reweighing or reconsidering the evidence when evaluating the convicting proof. State v. Morgan,

929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn.

Crim. App. 1990). Moreover, we may not substitute our own “inferences for those drawn by the trier

of fact from circumstantial evidence.” Matthews, 805 S.W.2d at 779. Further, questions concerning

the credibility of the witnesses and the weight and value to be given to evidence, as well as all factual

issues raised by such evidence, are resolved by the trier of fact and not the appellate courts. State

v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).



        A conviction for second degree murder requires proof that the defendant unlawfully and

knowingly killed another. T.C.A. §§ 39-13-201, -210(a). 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


                                                  -8-
cause the result. T.C.A. § 39-11-302(b). Intent, which can seldom be proven by direct evidence,

may be deduced or inferred by the trier of fact from the character of the assault, the nature of the act

and from all the circumstances of the case in evidence. State v. Inlow, 52 S.W.3d 101, 104-05 (Tenn.

Crim. App. 2000); State v. Holland, 860 S.W.2d 53, 59 (Tenn. Crim. App. 1993).



       At trial, Appellant relied on a defense of self-defense to justify the stabbing of the victim.

Tennessee defines self-defense as follows:



       A person is justified in threatening or using force against another person when and

       to the degree the person reasonably believes the force is immediately necessary to

       protect against the other’s use or attempted use of unlawful force. The person must

       have a reasonable belief that there is an imminent danger of death or serious bodily

       injury. The danger creating the belief of imminent death or serious bodily injury

       must be real, or honestly believed to be real at the time, and must be founded upon

       reasonable grounds. There is no duty to retreat before a person threatens or uses

       force.



T.C.A. § 39-11-611(a). Self-defense requires a reasonable belief that “force is immediately

necessary to protect against the other’s use or attempted use of unlawful force” and that there was

an “imminent danger of death or serious bodily injury” to the defendant. T.C.A. § 39-11-611(a).

When a defendant relies upon a theory of self-defense, the State bears the burden of proving that the

defendant did not act in self-defense. State v. Sims, 45 S.W.3d 1, 10 (Tenn. 2001). Further, it is


                                                  -9-
well-settled that whether an individual acted in self-defense is a factual determination to be made

by the jury as the sole trier of fact. State v. Ivy, 868 S.W.2d 724, 727 (Tenn. Crim. App. 1993).

Upon our review of a jury’s rejection of a claim of self-defense, “in order to prevail, the [appellant]

must show that the evidence relative to justification, such as self-defense, raises, as a matter of law,

a reasonable doubt as to his conduct being criminal.” State v. Clifton, 880 S.W.2d 737, 743 (Tenn.

Crim. App. 1994).



        It is obvious in this case that the jury chose to reject Appellant’s claim of self-defense. The

testimony concerning the events immediately prior to Appellant’s attack on the victim came only

from Appellant, who testified that she had previously threatened the victim and went to the victim’s

home that day to provoke her and make her “mad.” When Appellant arrived at the victim’s home,

she forced her way into the house and continued to fight with the victim even after the victim

retreated to the kitchen. When the victim retreated to the kitchen, Appellant admitted that she had

ample time to escape through the front door, but chose to remain in the apartment. Appellant

testified that she stabbed the victim in the neck after the victim had already dropped the scissors that

she was using as a weapon. Therefore, by Appellant’s own admission, the victim was unarmed at

the time she was stabbed by Appellant. In the context of self-defense, it is only permissible to use

force to “protect against the other’s use or attempted use of unlawful force.” T.C.A. § 39-11-611(a)

(emphasis added). Appellant made no argument at trial that the victim was using unlawful force at

the time Appellant stabbed her in the neck with an eight-inch knife blade. In fact, to the contrary,

the victim was entitled to use deadly force against Appellant to protect herself when Appellant

forcibly entered her home. See T.C.A. § 39-11-611(b). It was within the jury’s purview to reject the


                                                 -10-
self-defense theory. See State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997). Further,

Appellant’s argument is basically an argument about the credibility of the witnesses. Again, the jury

is entrusted to resolve questions concerning the credibility of the witnesses and the weight and value

to be given to evidence, as well as all factual issues raised by such evidence. Pruett, 788 S.W.2d at

561.



       Also in regards to the sufficiency of the evidence for her second degree murder conviction,

Appellant contends that there was no proof offered at trial that she “knowingly” killed the victim.

Viewing the evidence in the light most favorable to the State, we determine that there was sufficient

evidence to convict Appellant of the knowing killing of the victim. While Appellant asserted at trial

that she meant to stab the victim in a way that would not be “detrimental to her life,” Appellant also

admitted that she knew that a stab wound to the leg or arm would have posed less risk of death than

a stab wound to the neck. Further, Appellant testified that she quickly “jabbed” the victim twice

with the knife, while the testimony of the medical examiner revealed that the knife wounds were five

inches deep and several inches wide. The jury could infer from the location of the wounds and the

nature of the injuries that Appellant reasonably knew that inflicting this type of wound would result

in the victim’s death. See State v. Robert Ervin, No. W2000-01035-CCA-R3-CD, 2001 WL 91907

(Tenn. Crim. App., at Jackson, Jan. 31, 2001) (determining that the jury could properly infer the

knowing nature of killing based on the use of a deadly weapon, the number of wounds inflicted, the

seriousness of the wounds, and the defendant’s past history of conflict with the victim). Thus, the

evidence was sufficient to sustain a verdict for second degree murder. This issue is without merit.




                                                -11-
                                         Rebuttal Argument



       Next, Appellant complains that the State made improper remarks during closing argument.

Specifically, Appellant argues that the State misstated the law by telling the “jury they should convict

[Appellant] based on the ‘A-C-T-S’ and not the knowledge of [Appellant].” Because of the

improper argument and the failure of the trial court to take curative measures, Appellant argues that

the argument resulted in plain error. The State, on the other hand, argues that “the intent of the

State’s rebuttal argument was precisely to argue that [sic] the jury could infer that the defendant

intended to bring about the eventual result of her conduct by considering the nature of the crime.”



       In general, the scope of closing argument is subject to the trial court’s discretion. Counsel

for both the prosecution and the defense should be permitted wide latitude in arguing their cases to

the jury. State v. Cauthern, 967 S.W.2d 726, 737 (Tenn. 1998). Trial judges in turn are accorded

wide discretion in their control of those arguments, State v. Zirkle, 910 S.W.2d 874, 888 (Tenn.

Crim. App. 1995), and this discretion will not be interfered with on appeal in the absence of abuse

thereof. Smith v. State, 527 S.W.2d 737, 739 (Tenn. 1975). Notwithstanding such, arguments must

be temperate, based upon the evidence introduced at trial, relevant to the issues being tried, and not

otherwise improper under the facts or law. Coker v. State, 911 S.W.2d 357, 368 (Tenn. Crim. App.

1995). Thus, the State must not engage in argument designed to inflame the jurors and should

restrict its comments to matters properly in evidence at trial. State v. Hall, 976 S.W.2d 121, 158

(Tenn. 1998).




                                                 -12-
       When a reviewing court finds improper argument, State v. Philpott, 882 S.W.2d 394 (Tenn.

Crim. App. 1994), sets out five factors to determine whether a prosecutor’s improper conduct could

have affected the verdict to the “prejudice of the defendant.” Id. at 408. The factors are: (1) the

conduct complained of in light of the facts and circumstances of the case; (2) the curative measures

undertaken; (3) the intent of the prosecutor in making the improper remarks; (4) the cumulative

effect of the improper conduct and any other errors in the record; and, (5) the relative strength or

weakness of the case. Id. (citing Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976)); see

also State v. Goltz, 111 S.W.3d 1, 5 (Tenn. Crim. App. 2003).



       In the case herein, the following occurred during the prosecutor’s rebuttal argument:



       As far as offenses as charged and the elements, I told you at the beginning of this trial

       I would have to prove to you that [Appellant] was guilty of a knowing killing, the

       knowing itself - - the knowing aspect of that doesn’t apply to what she may have

       known or not known later on. The knowing aspect of that element applies to the act

       itself, the act itself, the stabbing itself.



       The first question, the very first question I asked [Appellant], you would agree with

       me, wouldn’t you, that stabbing somebody could kill them. Yes. That stabbing them

       in the torso would increase the risk of that death versus stabbing them in the arm or

       the leg. Yes. They say that they didn’t try to cut her in the arms or the legs, that they

       tried - - she tried to cut her in the back. How is that . . . to them. I don’t understand.


                                                      -13-
That’s what they have to say because that’s what the evidence was, is that she was

stabbed in the neck. She’s locked into that statement since day one. She couldn’t

change her story now, could she?



She said that she intentionally - - that she still had her - - how did she put it, her sense

and reason while she was stabbing at [the victim]. When I asked why, why would

you not choose to cut her hand, you know, cut the hand that’s cutting - - you know,

holding on to you if you want loose? Well, I still had my sense about me. And that’s

why you stabbed her in the torso instead of her arms or her leg? Yeah.



The knowing element applies to the act itself. That’s on page 16 [of the jury

instructions], the defendant unlawfully killed the alleged victim and that the

defendant acted knowingly. The knowing element I think is defined later on, on page

20. Knowingly means that a person acts, acts, A-C-T-S, with an awareness that his

conduct is reasonably certain to cause the death of the alleged victim. That doesn’t

mean she intentionally killed her, no. To stab somebody either in the back like she

thought she had done or in the neck like she actually did do is a knowing act. She

actually said it was an intentional act. She did that intentionally versus slicing her

across the thigh or across the hand that was holding it or the other arm. And keep in

mind that this girl is unarmed at the time, the victim.




                                           -14-
         The State has correctly noted that Appellant failed to lodge a contemporaneous objection to

any of the comments about which she now complains on appeal. Typically, the failure to object to

the statement at trial results in a waiver on appeal of any complaint concerning the prosecutor’s

comments. Tenn. R. App. P. 36(a); State v. Thornton, 10 S.W.3d 229, 234 (Tenn. Crim. App.

1999); State v. Green, 947 S.W.2d 186, 188 (Tenn. Crim. App. 1997); State v. Little, 854 S.W.2d

643, 651 (Tenn. Crim. App. 1992). Thus, if this Court is to review the claims of prosecutorial

misconduct we must do so through the process of “plain error” review embodied in Tennessee Rule

of Criminal Procedure 52(b) which provides:



         An error which has affected the substantial rights of an accused may be noticed at any

         time, even though not raised in the motion for a new trial or assigned as error on

         appeal, in the discretion of the appellate court where necessary to do substantial

         justice.3



This Court has, in its discretion, from time to time reviewed allegations of prosecutorial misconduct

as “plain error” even in the absence of a contemporaneous objection. See, e.g., State v. Marshall,

870 S.W.2d 532 (Tenn. Crim. App. 1993), overruled on other grounds by State v. Carter, 988

S.W.2d 145 (Tenn. 1999) (determining in absence of objection that prosecutor’s jury argument was

not plain error); State v. Butler, 795 S.W.2d 680 (Tenn. Crim. App. 1990) (considering whether



         3
          This rule by its terms allows plain error review only where there is a failure to allege error in the new trial
motion or where the error is not raised before the appellate court. Nevertheless the rule has been interpreted by the
appellate courts to allow appellate review under some circumstances in the absence of a contemporaneous objection as
well.

                                                         -15-
statements of prosecutor were plain error despite lack of objection by defendant); Anglin v. State,

553 S.W.2d 616 (Tenn. Crim. App. 1977) (determining that in order to justify reversal on the basis

of improper argument and remarks of counsel in absence of objection, it must affirmatively appear

that the improper conduct affected the verdict to the prejudice of the defendant).



       In exercising our discretion as to whether plain error review under Tennessee Rule of

Criminal Procedure 52(b) is appropriate, the Tennessee Supreme Court has directed that we examine

five factors, all of which must be present in a case in order for review under Rule 52(b) to be

appropriate. These five factors are as follows: (1) the record must clearly establish what occurred

in the trial court; (2) a clear and unequivocal rule of law must have been breached; (3) a substantial

right of the defendant must have been adversely affected; (4) the accused did not waive the issue for

tactical reasons; and (5) consideration of the error is necessary to do substantial justice. State v.

Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000) (citing Adkisson, 899 S.W.2d at 641).



       For a “substantial right” of the accused to have been affected, the error must have prejudiced

the appellant. In other words, it must have affected the outcome of the trial court proceedings.

United States v. Olano, 507 U.S. 725, 732-37 (1993) (analyzing the substantially similar Federal

Rule of Criminal Procedure 52(b)); Adkisson, 899 S.W.2d at 642. This is the same type of inquiry

as the harmless error analysis under Tennessee Rule of Appellate Procedure 36(b), but the appellant

bears the burden of persuasion with respect to plain error claims. Olano, 507 U.S. at 732-37.




                                                -16-
       In the case herein, we are not persuaded that Appellant has successfully carried her burden

of persuasion in establishing a plain error claim. First, the record is not entirely clear as to what

happened in the trial court. Although the manner in which these statements were made arguably

makes it appear that the State improperly stated the law in regard to second degree murder, a full

reading of the State’s rebuttal argument arguably supports the conclusion that the intent of the entire

argument was to argue to the jury that they could infer that Appellant intended to bring about the

eventual result of her conduct by considering the nature of the crime. What is or is not improper

rebuttal argument may very well vary depending on the context in which it was made. See Judge

v. State, 539 S.W.2d 340, 343 (Tenn. Crim. App. 1976) (holding that propriety of prosecution

comments must be evaluated in light of whether they were in direct response to defense argument

rather than gratuitous); see also Goltz, 111 S.W.3d at 6. We note that the record does not contain

the closing argument of counsel for Appellant or the State, thus we are unable to discern whether the

statements of the prosecutor were made in response to statements made by counsel for Appellant in

closing. It is Appellant’s duty to provide a record that will allow for meaningful review upon

appeal. See Tenn. R. App. P. 24(b). We cannot consider an issue unless the record contains a fair,

accurate and complete account of what transpired below relevant to that issue. State v. Ballard, 855

S.W.2d 557, 560-61 (Tenn. 1993).



       Next it is impossible to say whether the complained of comments adversely affected the

jury’s verdict in this case and whether consideration of this issue is necessary to do substantial

justice. It should be noted again that the burden of persuasion on appeal is on the appellant to

demonstrate that the prosecutor’s comments “more probably than not affected the judgment or would


                                                 -17-
result in prejudice to the judicial process.” Olano, 507 U.S. at 732-37; Tenn. R. App. P. 36(b).

Other than the bare assertion that the prosecutor’s comments deprived the appellant of a fair trial

because they directed the jury to consider her actions rather than the result of her conduct, there is

no indication that the jury was unduly swayed from its duties as explained in the jury instructions

issued by the trial court. In fact, the trial court instructed the jury that they were solely to consider

whether Appellant intended the “result of her conduct.” The jury is presumed to obey the

instructions of the trial court. State v. Harris, 839 S.W.2d 54, 72 (Tenn. 1992). Moreover, we

conclude that evidence of guilt was substantial enough that the verdict was not affected by the

prosecutor’s statements.



        Finally, and perhaps most importantly, there is no excuse or explanation proffered by

Appellant either in the record or in her brief on appeal as to the reason for her failure to object to the

allegedly offending comments. Thus, we cannot say that the failure to object was for reasons other

than tactical. Under these circumstances we are of the opinion that Appellant has failed to carry her

burden of persuasion in convincing this Court to consider as plain error the propriety of the allegedly

improper comments of the prosecutor in closing and rebuttal. This issue is therefore waived.



                                 Lesser Included Offense Instructions



        Appellant also complains on appeal that the trial court erred by failing to instruct the jury

with misdemeanor reckless endangerment and assault as lesser included offenses. Specifically,

Appellant contends that “because [Appellant’s] defense was that she didn’t intend the death, her


                                                  -18-
intent was more in line with assault or reckless endangerment” and that “this Court should find that

it is unable to conclude beyond a reasonable doubt that the jury, if given this opportunity, would not

have convicted [Appellant] of reckless endangerment or assault.” The State, on the other hand,

argues that Appellant was not entitled to have the trial court instruct the jury with misdemeanor

reckless endangerment and assault and, in the alternative, that any error on the part of the trial court

would be harmless because the jury convicted Appellant of the greatest offense charged, rejecting

all other lesser included offenses.



         Appellant was indicted with second degree murder. Appellant requested, in writing,4 that the

trial court charge the jury with the lesser included offenses of misdemeanor reckless endangerment

and assault. The trial court determined that neither reckless endangerment nor assault were lesser

included offenses of second degree murder and charged the jury with the lesser included offenses

of voluntary manslaughter, reckless homicide and criminally negligent homicide.



         Our review of a trial court’s charge to the jury regarding lesser included offenses is de novo

with no presumption of correctness. State v. Moore, 77 S.W.3d 132, 134 (Tenn. 2002). In State v.

Burns, 6 S.W.3d 453 (Tenn. 1999), the following test for determining whether an offense is a lesser

included offense of another was established by our supreme court:


         4
           W e note that T.C.A. § 40-18-110 requires the defendant to request lesser included offense instructions in
writing at trial in order to subsequently appeal a trial court’s failure to instruct on such offenses. In State v. Page, 184
S.W .3d 223, 229 (Tenn. 2006), the Tennessee Supreme Court determined that T.C.A. § 40-18-110 was constitutional,
concluding that “if a defendant fails to request an instruction on a lesser-included offense in writing at trial, the issue will
be waived for purposes of plenary appellate review and cannot be cited as error in a motion for new trial or on appeal.”
However, the court went on to note that appellate courts were not precluded from reviewing the issue sua sponte under
the plain error doctrine. Id. at 230.



                                                             -19-
       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).



Burns, 6 S.W.3d at 466-67. An instruction on a lesser included offense must be given if the trial

court, viewing the evidence most favorably to the existence of the lesser included offense, concludes

(a) that “evidence exists that reasonable minds could accept as to the lesser-included offense,” and

(b) that the evidence “is legally sufficient to support a conviction for the lesser-included offense.”

Id. at 469. “If a lesser offense is not included in the offense charged, then an instruction should not

be given, regardless of whether the evidence supports it.” Id. at 467. The failure to instruct the jury


                                                 -20-
on lesser included offenses requires a reversal for a new trial unless a reviewing court determines

that the error was harmless beyond a reasonable doubt. State v. Ely, 48 S.W.3d 710, 727 (Tenn.

2001). In making this determination, the reviewing court 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.” State v. Allen, 69 S.W.3d 181, 191 (Tenn. 2002).



       This Court has concluded that in cases that involve the unlawful killing of a person, a

defendant is entitled to a jury charge on lesser included offenses even though the lesser offenses may

lack the element of the death of the victim. State v. Paul Graham Manning, No. M2002-00547-

CCA-R3-CD2003 WL 354510, at *6 (Tenn. Crim. App., at Nashville, Feb. 14, 2003), perm. app.

denied, (Tenn. Dec. 15, 2003). In Manning, this Court determined that aggravated assault and

assault were lesser included offenses of first degree premeditated murder, stating:



       [F]irst degree premeditated murder is the “premeditated and intentional killing of

       another.” Tenn. Code Ann. § 39-13-202(a)(1). An aggravated assault is committed,

       on the other hand, when the accused intentionally, knowingly, or recklessly causes

       serious bodily injury to another. See id. § 39-13-102(a)(1)(A), (a)(2)(A). Similarly,

       an assault is committed when one “[i]ntentionally, knowingly or recklessly causes

       bodily injury to another.” Id. § 39-13-101(a)(1). The mens rea of intentional

       includes the mens reas of knowing and reckless. See id. § 39-11-301(a)(2). A killing

       certainly includes serious bodily injury (as well as “mere” bodily injury). Thus, all

       of the statutory elements of these forms of aggravated assault and assault are included


                                                -21-
         within the statutory elements of first degree premeditated murder, and they are

         therefore lesser-included offenses under part (a) of the Burns test.



Manning, 2003 WL 354510, at *6; Contra State v. John C. Walker, III, No. M2005-01432-CCA-

RM-CD, 2005 WL 1798758, at *10-11 (Tenn. Crim. App., at Nashville, July 28, 2005), perm. app.

denied, (Tenn. Dec. 19, 2005) (determining that aggravated assault and assault are not lesser

included offenses of first degree murder).5



         We conclude that Manning is the better reasoned opinion and, therefore, find the same

analysis applicable herein. As set forth above, second degree murder requires the knowing killing

of another. T.C.A. §§ 39-13-201, -210(a). Misdemeanor reckless endangerment requires reckless

“conduct that places or may place another person in imminent danger of death or serious bodily

injury.” T.C.A. § 39-13-103. An assault is committed when one “[i]ntentionally, knowingly, or

recklessly causes bodily injury to another.” T.C.A. § 39-13-101(a)(1). According to T.C.A. § 39-11-

301(a)(2), the mens rea of knowing, as required by second degree murder, includes the mens reas

of intentional, knowing, and reckless, as required by misdemeanor reckless endangerment and

assault. A killing certainly includes bodily injury as well as imminent danger of death or serious


         5
          W e acknowledge that in Walker, this Court lists several opinions that are cited as contradictory to the holding
of Manning. See State v. Mario C. Estrada, No. M2002-00585-CCA-R3-CD, 2003 W L 1191186 (Tenn. Crim. App.,
at Nashville, Mar. 14, 2003), rev’d on other grounds, 133 S.W .3d 606 (Tenn. 2004); State v. Renne Efren Arellano, No.
M2002-00380-CCA-R3-CD, 2003 W L 535927 (Tenn. Crim. App., at Nashville, Feb. 26, 2003), rev’d on other grounds,
133 S.W .3d 606 (Tenn. 2004); State v. Randall White, No. M2000-01492-CCA-R3-CD, 2002 W L 471166 (Tenn. Crim.
App., at Nashville, M ar. 27, 2002); State v. Joshua Lee Williams and Maurice Miguel Teague, No. W 2000-01435-CCA-
R3-CD, 2001 W L 721056 (Tenn. Crim. App., at Jackson, Jun. 27, 2001), perm. app. denied, (Tenn. Oct. 29, 2001); State
v. Christopher Todd Brown, No. M1999-00691-CCA-R3-CD, 2000 W L 262936 (Tenn. Crim. App., at Nashville, Mar.
9, 2000), perm. app. denied, (Tenn. Sept. 10, 2001). These cases, however, all deal with attempted homicides and
assaults and, as such, are distinguishable from both Manning and the case at bar.

                                                          -22-
bodily injury. Thus, all of the statutory elements of misdemeanor reckless endangerment and assault

are included within the statutory elements of second degree murder. Consequently, they are lesser

included offenses under part (a) of the Burns test and the trial court erred when it failed to instruct

the jury on these forms of misdemeanor reckless endangerment and assault.



       “Failure to give a lesser-included offense instruction will result in reversal unless a reviewing

court concludes beyond a reasonable doubt that the error did not affect the outcome of the trial.”

State v. Allen, 69 S.W.3d 181, 189 (Tenn. 2002). In this case, the trial court instructed the jury on

the lesser included offenses of voluntary manslaughter, reckless homicide and criminally negligent

homicide. Given all of these choices, the jury returned a verdict finding Appellant guilty of the

greatest offense given, the indicted offense of second degree murder. In Allen, the court concluded

that the failure to charge lesser included offenses is harmless error “when the jury, by finding the

defendant guilty of the highest offense to the exclusion of the immediately lesser offense, necessarily

rejected all other lesser-included offenses.” Id. (citing State v. Williams, 977 S.W.2d 101, 106

(Tenn. 1998)). Accordingly, Appellant is not entitled to relief on this issue.



                                             Sentencing



       Lastly, Appellant complains that the trial court imposed an excessive sentence. Specifically,

she argues that the trial court found only one enhancement factor and four mitigating factors, and

despite those findings, the trial court enhanced her sentence to twenty years. The State contends that

under the 2005 amendments to the Tennessee Criminal Sentencing Reform Act, Appellant does not


                                                 -23-
have the right to “appeal a trial court’s application of enhancement and mitigating factors to a

sentence within the statutory range.”



       However, we need not reach the merits of this issue. It appears from the record that the trial

court incorrectly sentenced Appellant pursuant to the 2005 amendments to the 1989 Sentencing Act.

Portions of the 1989 Sentencing Act were amended in 2005 to reflect an advisory, non-mandatory

sentencing scheme. See e.g., T.C.A. §§ 40-35-114, -210. It was specifically noted that the amended

provisions applied to sentencing for criminal offenses committed on or after June 7, 2005, but that

offenses committed prior to June 7, 2005, would be governed by prior law. It was also noted that

a defendant who is sentenced after June 7, 2005, for offenses committed on or after July 1, 1982,

may elect to be sentenced under the amended provisions of the Act by executing a waiver of ex post

facto protections. See Pub. Acts, Ch. 353, § 18; T.C.A. § 40-35-210.



       The record reflects that Appellant herein committed the offense of second degree murder

prior to the effective date of these amended provisions. While Appellant could have elected to be

sentenced pursuant to these amended provisions, the record on appeal does not contain a waiver

showing that she did so. There was discussion at the sentencing hearing between counsel for

Appellant and the trial court to the effect that Appellant wanted to be sentenced under “the new law”

and that Appellant wished to “waive the sentencing under the old and go with the new [law].” There

was even discussion about procuring a waiver of Appellant’s ex post facto provisions for the record.

However, no waiver is included in the record on appeal. Therefore, we must vacate the sentence and

remand this case for resentencing.


                                                -24-
       On remand, the trial court should ensure that Appellant properly executes a waiver of her ex

post facto protections if she wishes to be sentenced under the amended sentencing statutes. See

T.C.A. § 40-35-210, Compiler’s Notes; see also State v. Ricky Lynn Payne, No. M2006-00762-CCA-

R3-CD, 2007 WL 2042494, at *12 (Tenn. Crim. App., at Nashville, Jul. 16, 2007) (remanding for

resentencing under the old law or for proper execution of a waiver of ex post facto protections); State

v. Marco M. Northern, No. M2005-02336-CCA-R3-CD, 2007 WL 1670333, at *18 (Tenn. Crim.

App., at Nashville, Jun. 11, 2007) (remanding for resentencing under the old law or for proper

execution of a waiver of ex post facto protections where defense counsel’s oral statement that

defendant elected to be sentenced under the new sentencing scheme was found to be an ineffectual

attempt to waive the defendant’s ex post facto protections); State v. Bobby Dale Parris, No.

E2006-00893-CCA-R3-CD, 2007 WL 1498466, at *3-4 (Tenn. Crim. App., at Knoxville, May 23,

2007) (remanding for resentencing under the old law or for proper execution of a waiver of ex post

facto protections); State v. Timothy R. Bouton, No. E2005-02294-CCA-R3-CD, 2006 WL 2373471,

at *2 (Tenn. Crim. App., at Knoxville, June 27, 2006) (remanding for resentencing under the old law

or for proper execution of a waiver of ex post facto protections).



                                             Conclusion



       For the foregoing reasons, Appellant’s judgment of conviction is affirmed. Appellant’s

sentence is vacated and the matter is remanded to the trial court for resentencing in accordance with

this opinion.




                                                 -25-
       ___________________________________
       JERRY L. SMITH, JUDGE




-26-
