          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT NASHVILLE                  FILED
                                MAY SESSION, 1998                December 9, 1998

                                                            Cecil W. Crowson
STATE OF TENNESSEE,                 )                     Appellate Court Clerk
                                           C.C.A. NO. 01C01-9704-CC-00122
                                    )
       Appellee,                    )
                                    )
                                    )      MAURY COUNTY
VS.                                 )      (Tra nsfe rred from Gile s Co unty)
                                    )      HON . WILL IAM B. C AIN
STEPHEN JOHN ABBOTT,                )      JUDGE
                                    )
       Appe llant.                  )      (Second Degree Murder (Two
                                    )      Counts); Attempted First Degree
                                    )      Murder; and Attempted Second
                                    )      Degree M urder)




       OPINION CONCURRING IN PART AND DISSENTING IN PART

       I concur in most of the conclusions rea ched b y the ma jority. Howe ver, I

must dissent from the holding of the Court that this case must be reversed for

failure of the trial court to instruct the jury with res pect to facilitation of a felony.



       It is true that in State v. Lewis , 919 S.W.2d 62 (Tenn. Crim. App. 1995);

this Court held that virtually everytime an individual is charged with a felony by

way of crimina l respons ibility for the conduct of another, facilitation of the felony

would be a less er include d offense . Id. at 67. However, this is not a “blanket

rule” and where there is no evidence in the record which would lessen the

defen dant’s culpability from the offense charged there is no requirement that

facilitation be cha rged to th e jury. State v. Utley, 928 S.W .2d 448, 452 (Tenn.

Crim. App. 19 95).     Put another way, where the evidence is clear that the

defendant is guilty of the offense charged in the indictment or no o ffense at all,
there is no duty to charge a lesser in cluded or lesser g rade of o ffense. State v.

Trusty, 919 S.W .2d 305 (Te nn. 1996).



       In the instant case facilitation of a felony is defined at Tennessee Code

Annotated Section 39-11-403(a). That section provides that a person is guilty of

such facilitation if, “knowin g that ano ther intend s to com mit a specific felony, but

without the intent required for criminal responsibility . . . the person knowingly

furnishes substantial assistance in the commission of the felony.” (emp hasis

supplied) In the instant case the State’s proof showed that the defendant acted

in concert with his compatriot, with the intent necessary to establish criminal

respon sibility for these crimes. On the other hand, the defendant’s theory and

evidence is to the effect th at the d efend ant did not kn ow or b elieve his co-

defendant, Rouse, intended to commit any crime and that he did not kn owing ly

assist Rouse in the commission of it. The jury clearly rejected the defend ant’s

version of events. I fail to see any evidence in this record from which a juror

could conclude that the defendant knew Rouse was going to commit these

homicides, did not intend to promote or assist in the commission of the offenses,

but neve rtheless k nowing ly did furnish substan tial assistan ce.

       Moreover, only recently the Tennessee Supreme Court has decided that

even when there is evidence which triggers the requirement for an instruction as

to lesser included offenses a failure to so instruct is subject to a harmless error

analysis. State v. W illie William s, Jr., Hamilton Co., Tn. Sup. Ct. No. 03-S-01-

9706-CR-00060 (TN. Sup. Ct. at Knoxville) (Opinion filed Sept. 21, 1998).

Therefore, if an appellate court can determine from the verdict actually returned

by the jury that it is unlikely the verdict would have been different had the lesser

offense instruction , been g iven, a ne w trial is not req uired. Id.

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      In the instant case the appellant was indicted for two counts of first degree

murder and two counts of attempted first degree murder. Although the jury was

not instructed on fa cilitation of a felony, it was given instructions on second

degree murder, manslaughter, attempted second degree murder and attempted

mans laughte r. He was convicted of two counts of second degree murder, one

count of attempted second degree murder, and one count of attempted first

degree murder. T he jury had to ha ve found beyond a reasonable doubt that the

defendant know ingly kille d two p eople , know ingly atte mpte d to kill a third, and

actua lly premeditated and deliberated the attempted killing of a fourth. Given, the

jury’s rejection of any lesse r culpability it could have found, and given the fact that

on at least one count the jury found the attempted murder to be both

premeditated and deliberate, I am convinced any error in declining to charge

facilitation would b e harm less error. I would affirm the judgment of the trial cour t.



       For the fo regoing reason s I concu r in part and dissent in p art.




                                          __________________________
                                          JERRY L. SMITH, JUDGE




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