         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                      May 20, 2003 Session

              STATE OF TENNESSEE v. DUANE BRIAN BROOKS

                      Appeal from the Criminal Court for Sullivan County
                           No. S43,678    Phyllis H. Miller, Judge



                                  No. E2002-02040-CCA-R3-CD
                                          July 10, 2003

The defendant, Duane Brian Brooks, was convicted of first degree murder and sentenced to life
imprisonment. In this appeal, the defendant asserts that the trial court erroneously instructed the jury
as to the culpable mental states for first and second degree murder and failed to provide an
instruction on causation. Because it is our view that any error with regard to the jury instructions
can be classified as harmless beyond a reasonable doubt, the judgment of the trial court is affirmed.

                  Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which THOMAS T. WOODA LL and JAMES
CURWOOD WITT, JR., JJ., joined.

Stephen M. Wallace, Assistant Public Defender, for the appellant, Duane Brian Brooks.

Paul G. Summers, Attorney General & Reporter; Brent C. Cherry, Assistant Attorney General; and
Barry P. Staubus, Assistant District Attorney General, for the appellee, State of Tennessee.

                                              OPINION

         On January 17, 2000, the victim, Carol Hendrickson, disappeared from her home. Later, her
body was discovered inside her car, which was submerged in Fort Patrick Henry Lake in Sullivan
County. She had been strangled to death. The defendant, who was the victim's foster son, admitted
the killing.

         At trial, the proof established that when the victim did not arrive for work as scheduled on
January 17, her co-worker, Nancy Burgess, telephoned the victim's residence. After receiving a busy
signal, Ms. Burgess telephoned the victim's sons, Kevin and David Hendrickson, in an unsuccessful
effort to ascertain the victim's whereabouts.

       David Hendrickson, who initially knew the defendant from school, testified that the
defendant came to live with the Hendrickson family as a foster child when the defendant was
seventeen. He recalled that on the morning of his mother's disappearance, one of the victim's co-
workers notified him that the victim had not arrived for work. After telephoning the victim and
receiving a busy signal, David Hendrickson and his wife, April, drove to the victim's house. When
they arrived, they noticed tire tracks next to the sidewalk and discovered that the victim's car was
missing. Inside the residence, they noticed that the coffee table and a rug had been moved, a
telephone was missing, and some Christmas presents had been taken. The victim's purse was also
missing and her dog, which was normally unrestrained, was shut inside a room.

        On the next day, David Hendrickson and his siblings gathered at the victim's house to discuss
her disappearance. When the defendant arrived, he asked them whether they thought he had killed
the victim and stated that the victim would "be okay." There were scratches on the defendant's face
and neck, which the defendant claimed to have received during a fight. A new tattoo was on his
forearm.

        Alicia Hendrickson, the victim's daughter, testified that the victim had informed the
defendant that she had added him as a beneficiary to her life insurance policy so that he would feel
like a member of the family. She recalled that although the defendant had traditionally celebrated
Christmas with the Hendrickson family, he had not done so the Christmas just before the victim's
death. She stated that all of the family members purchased presents for the defendant, which the
victim kept at her house. She noted that a number of items, including several pieces of jewelry and
a coin collection, were missing from the victim's house. The victim's high school ring, which had
been kept in a lockbox, was also missing.

        According to Ms. Hendrickson, when the defendant arrived at the victim's residence on the
day after her disappearance, he said, "The police think . . . that you think I killed your mom." After
informing the defendant that she did, in fact, believe he had killed the victim, the defendant
responded, "I'd kill myself first." After seeing scratches on the defendant's neck, she pulled his shirt
down and saw "nothing but scratches on his chest."

        Kevin Hendrickson, the victim's oldest son, testified that after the victim's disappearance, he
attempted to locate the defendant, whom he had not seen in a year, but was unable to do so. During
the meeting at the victim's house the following day, he heard the defendant say, "I can't believe you
all think that I killed Mom." When Kevin Hendrickson commented that only the defendant's
Christmas presents and birthday presents had been taken, the defendant denied being responsible for
the theft but acknowledged that he had been at the victim's residence the night before her
disappearance. The defendant claimed that he had gone to the residence to talk to the victim about
a problem he was having with his girlfriend. Kevin Hendrickson testified that the victim did not
approve of the defendant's girlfriend.

        Gay Vern Moore, payroll and personnel manager for Sullivan County, testified that the victim
was a county employee. According to Ms. Moore, the victim had a life insurance policy in the
amount of $43,000.00 that was part of her employment benefits package. The defendant was one
of the named beneficiaries of the policy.


                                                  -2-
        Lieutenant Reece Christian of the Sullivan County Sheriff's Department, who investigated
the victim's disappearance, questioned the defendant and his friend, Jared Fagert. At that time, the
defendant gave a statement wherein he acknowledged being at the victim's residence until 4:00 a.m.
on the day before her disappearance but denied either harming the victim or taking the missing items.
The defendant told the lieutenant that he had received the scratches to his face and neck during an
altercation at a Johnson City bar. After the interview, Lieutenant Christian interviewed a number
of the defendant's friends in an unsuccessful attempt to verify the defendant's claim that he had been
injured in a bar fight.

       Several days later, Lieutenant Christian received a message from the defendant: "This is
Duane Brooks. I want to know what the hell's going on. I've been stripped of all my friends and I
want to talk to you." The lieutenant and another officer went to the residence where the defendant
was staying and saw Fagert's car parked behind the house. The defendant and Fagert agreed to
separate interviews at the Sheriff's Department and on this occasion, the defendant admitted that he
had not been in a bar fight but claimed that he had been injured during the robbery of another
individual. He also asked if the police had determined whether the victim's credit cards had been
used.

        As part of his investigation, Lieutenant Christian discovered a number of items taken from
the victim's home in an area near Fort Patrick Henry Lake. It appeared that someone had attempted
to burn them. The victim's high school ring was among the charred remains.

         Detective Joey Strickler, who questioned the defendant shortly after Lieutenant Christian's
interview, testified that after waiving his rights, the defendant admitted that he had killed the victim
and dumped her body in the lake. The defendant acknowledged that Jared Fagert dropped him off
near the victim's home at approximately 2:00 a.m. The victim, who was dressed in her pajamas, let
him inside but, according to the defendant, became angry when she learned that he was dating a girl
of whom she did not approve. He claimed that when he tried to leave, the victim grabbed his arm
and he "turned around and started choking her with [his] hands." The defendant asserted that he had
been involved in a sexual relationship with the victim in the past, but denied having any sexual
contact with the victim on the night of her death. The defendant also confessed that he "reached
down between the sofa and chair and got . . . a cord or a rope and wrapped it around her neck and
pulled it. I used both hands to pull it. She wasn't fighting me when I put the cord around her neck.
. . . I believe she was dead."

        The defendant stated that he carried the body to the backseat of the victim's car and returned
to the house, taking her purse, cash, a lockbox, some jewelry, a cordless phone, and some Christmas
presents. He also admitted using one of the victim's credit cards to purchase gasoline for Fagert's
car and burning the remaining items near the water. He stated that he drove the victim's car to the
edge of the lake, rolled the windows down, and then "got out of the car and put the car in drive."
According to the defendant, "[t]he car floated a little bit over to the right about twenty yards and then
it went down." He stated that Fagert then picked him up and the two watched the car sink



                                                  -3-
underneath the water. On the following day, the defendant and Fagert paid for matching tattoos from
the cash taken from the victim's purse.

       Allen Linkous, coordinator for the Sullivan County Sheriff's Office Underwater Investigation
Team, discovered the victim's car during an underwater search of Fort Patrick Henry Lake.
According to Linkous, the car was upside down in thirteen feet of water approximately sixty-six feet
from the shore. The vehicle was removed from the water by wrecker. Divers also found a metal
lockbox a couple of miles from where the victim's car was discovered.

       Dr. Ellen Wallen, who performed an autopsy, testified that the victim died as a result of
"asphyxia due to manual and ligature strangulation." She explained that the body was well-preserved
because it had been submerged in cold water since her death.

                                                     I
        The defendant contends that the state's burden of proof was lessened by the inclusion of an
erroneous definition of intentional. He claims that because first degree murder is a result-of-conduct
offense, the trial court erred by providing the statutory definition of intentional that relates to nature-
of-conduct offenses, thereby depriving him of the right to trial by jury. The state concedes that the
trial court should not have provided the nature-of-conduct definition of intentional but asserts that
the error is harmless beyond a reasonable doubt.

        The trial court has a duty "to give a complete charge of the law applicable to the facts of a
case." State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986); see also Tenn. R. Crim. P. 30. "[The]
defendant has a constitutional right to a correct and complete charge of the law." State v. Teel, 793
S.W.2d 236, 249 (Tenn. 1990). Our law requires that all of the elements of each offense be
described and defined in connection with that offense. See State v. Cravens, 764 S.W.2d 754, 756
(Tenn. 1989). Jury instructions must, however, be reviewed in the context of the overall charge
rather than in isolation. See Sandstrom v. Montana, 442 U.S. 510 (1979); see also State v. Phipps,
883 S.W.2d 138, 142 (Tenn. Crim. App. 1994). A charge is prejudicial error "if it fails to fairly
submit the legal issues or if it misleads the jury as to the applicable law." State v. Hodges, 944
S.W.2d 346, 352 (Tenn. 1997). Any omission in the instructions in reference to an element of the
offense which might lessen the burden of proof placed upon the state is constitutional error and
requires a new trial unless the error is harmless beyond a reasonable doubt. State v. Walker, 29
S.W.3d 885, 893-94 (Tenn. Crim. App. 1999).

        Here, the trial court provided the following instructions regarding first degree murder:

        For you to find the defendant guilty of this offense, the State must have proved
        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 intentionally; and
        (3) that the killing was premeditated.


                                                   -4-
         A person acts intentionally with respect to the nature of the conduct or to a result of
         the conduct when it is the person's conscious objective or desire to engage in the
         conduct or cause the result.

         A premeditated act is one done after the exercise of reflection and judgment.
         Premeditation means that the intent to kill must have been formed prior to the act
         itself. It is not necessary that the purpose to kill preexist in the mind of the accused
         for any definite period of time. The mental state of the accused at the time he
         allegedly decided to kill must be carefully considered in order to determine whether
         the accused was sufficiently free from excitement and passion as to be capable of
         premeditation. If the design to kill was formed with premeditation, it is immaterial
         that the accused may have been in a state of passion or excitement when the design
         was carried into effect. Furthermore, premeditation can be found if the decision to
         kill is first formed during the heat of passion, but the accused commits the act after
         the passion has subsided.

         In State v. Page, 81 S.W.3d 781 (Tenn. Crim. App. 2002), a panel of this court held that
because second degree murder is a result-of-conduct offense, the trial court erred by including the
nature-of-conduct and nature-of-circumstances1 definitions of knowingly. Further, the panel
determined that the error could not be classified as harmless beyond a reasonable doubt because the
defendant's mental state was a contested issue at trial. Id. at 789-90. In other cases addressing this
issue, this court has determined that error with regard to the definition of the culpable mental state
may qualify as harmless beyond a reasonable doubt where mens rea is not a disputed issue at trial.
See, e.g., State v. Theron Davis, No. W2002-00446-CCA-R3-CD (Tenn. Crim. App., at Jackson,
May 28, 2003).

        As indicated, the defendant was convicted of first degree premeditated murder, which
requires that the defendant act intentionally. In State v. Antoinette Hill, No. E2001-02524-CCA-R3-
CD (Tenn. Crim. App., at Knoxville, Dec. 13, 2002), the defendant, who was convicted of first
degree murder, complained that the trial court erroneously provided the nature-of-conduct definition
of intentionally. A panel of this court determined that the trial court should not have provided the
nature-of-conduct definition of intentional because first degree premeditated murder, like second
degree murder, is a result-of-conduct offense. The panel ruled, however, that because the defendant
had been convicted of first degree murder, which requires a finding that the defendant acted with
premeditation, the error could be classified as harmless beyond a reasonable doubt. Id., slip op. at
6.

       Here, the defendant never asserted that he acted other than intentionally when he killed the
victim and instead asserted that he did not act with premeditation. In fact, during closing argument
defense counsel conceded that the defendant killed the victim and stated, "It was an intentional act."


        1
          "[A] person 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." Tenn. Code Ann. § 39 -11-302(b).

                                                        -5-
Further, by its verdict, the jury in this instance concluded that the defendant acted with
premeditation, that is to say that he displayed a previously formed design or intent to kill. See State
v. West, 844 S.W.2d 144, 147 (Tenn. 1992); Antoinette Hill, slip op. at 6. Implicit in a finding of
premeditation is that it was the defendant's desire to cause the result of his conduct, i.e. the death of
the victim. Because the jury determined that the defendant acted with the design to kill, it is our
view that the inclusion of the nature-of-conduct definition of intentional would be harmless beyond
a reasonable doubt. See Antoinette Hill, slip op. at 6.

        The defendant also contends that the trial court erred by providing the nature-of-conduct and
nature-of-circumstances definitions of the culpable mental state of knowing in its instructions on
second degree murder. He asserts that the erroneous definition compounded the trial court's error
with regard to the erroneous definition of intentional. As indicated, the defendant conceded that he
acted intentionally. Additionally, the jury necessarily determined that the defendant acted with
premeditation when he killed the victim. It is our view that a finding of premeditation encompasses
a finding that the defendant acted knowingly. In consequence, any error with regard to the definition
of knowing would qualify as harmless beyond a reasonable doubt. See id.; see also Page, 81 S.W.3d
at 789.

                                                    II
         Finally, the defendant, citing State v. Farner, 66 S.W.3d 188, 206 (Tenn. 2001), asserts that
the trial court committed reversible error by failing to provide a jury instruction on causation. The
state submits that the cause of the victim's death was not contested at trial and thus any error is
harmless beyond a reasonable doubt.

        In Farner, the defendant was convicted of criminally negligent homicide and other offenses
as a result of his participation in a drag race with the victim. Our supreme court ruled that "causation
is an element of every homicide offense and the jury should be so instructed." The high court went
on to say, however, that "[i]n the vast majority of cases, causation is not disputed, so omitting this
instruction would be considered harmless error." Id. Here, the defendant admitted strangling the
victim, placing her dead body in her car, and rolling the car into the lake. The victim's cause of death
was not a contested issue at trial. In consequence, the trial court's failure to instruct the jury as to
cause of death qualifies as harmless beyond a reasonable doubt. See id.

        Accordingly, the judgment of the trial court is affirmed.



                                                ___________________________________
                                                GARY R. WADE, PRESIDING JUDGE




                                                  -6-
