            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                    FILED
                                    AT KNOXVILLE
                                                                 December 29, 1999

                          NOVEMBER SESSION, 1999                 Cecil Crowson, Jr.
                                                                Appellate Court Clerk




STATE OF TENNESSEE,                 *
                                    *   No. 03C01-9905-CR-00206
      Appellee,                     *
                                    *   HAMILTON COUNTY
vs.                                 *
                                    *   Hon. Douglas A. Meyer, Judge
JOHN WALTER SULLIVAN,               *
                                    *   (Attempted Second Degree Murder)
      Appellant.                    *



For the Appellant:                      For the Appellee:

Hank Hill                               Paul G. Summers
Hank Hill & Associates, Attorneys       Attorney General and Reporter
701 Cherry Street, Suite 200
Chattanooga, TN 37402                   Michael J. Fahey, II
                                        Assistant Attorney General
                                        Criminal Justice Division
                                        425 Fifth Avenue North
                                        2d Floor, Cordell Hull Building
                                        Nashville, TN 37243-0493


                                        William H. Cox III
                                        District Attorney General

                                        H. C. Bright
                                        Asst. District Attorney General
                                        313 Courts Building
                                        600 Market Street
                                        Chattanooga, TN 37402



OPINION FILED:

AFFIRMED



David G. Hayes, Judge
                                       OPINION



      The appellant, John Walter Sullivan, was convicted by a Hamilton County jury

of one count of attempted second degree murder. Following a sentencing hearing,

the appellant was sentenced to ten years in the Department of Correction. The

appellant contends that the evidence is insufficient to support a conviction for

attempted second degree murder.



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




                                     Background



       On October 19, 1997, the Hamilton County Grand Jury returned an

indictment charging the appellant with the attempted first degree murder of Linda

Jackson. The case proceeded to trial on November 18, 1998, at which time the

following proof was developed.



       Linda Jackson, the victim, testified that she met the appellant at the

community kitchen in Chattanooga. Both Jackson and the appellant were homeless.

Soon thereafter, the couple began a romantic relationship, which continued over

several months.



       On July 19, 1997, Ms. Jackson was given a ride to the Conoco convenience

store by a male friend. He dropped Ms. Jackson off at the store and she proceeded

inside the store to “get [her] a cup of ice.” The appellant, who apparently was in the

immediate vicinity, saw Ms. Jackson and followed her into the store. Ms. Jackson

immediately informed the cashier “to call the police because he’s nagging me and

he don’t [sic] supposed to be around me.” The appellant left. The cashier locked


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the door and called the police. However, approximately five minutes later the

cashier had to unlock the door as other customers were trying to enter. As soon as

the door was unlocked, the appellant rushed into the store and “came at [Ms.

Jackson] with a butcher knife.” Ms. Jackson moved in an attempt to protect herself,

however, her attempt was futile as the appellant stabbed her in the arm. Teresa

McMillan, the cashier at the Conoco convenience store, corroborated the account of

events provided by Ms. Jackson.



       Chattanooga Police Officer James Hixson was on patrol the night of the

stabbing and responded to a dispatch to the incident at the convenience store.

Upon arriving at the scene and entering the store, he “noticed a large amount of

blood on the floor. . .” and “Ms. Jackson standing there . . . [with] a towel wrapped

around her arm. . . .” Ms. Jackson informed Officer Hixson that the appellant had

stabbed her. She provided Officer Hixson with a physical description of the

appellant. Other officers located the appellant “right down the block.” At the time

he was apprehended by the police officers, the appellant had disposed of the knife

used in the attack.



       Detective David Sowder with the Hamilton County Sheriff’s Department

testified that the appellant eventually led him to the location in a nearby yard where

he had disposed of the knife. Detective Sowder stated that the appellant was very

cooperative and provided a statement. In the statement, the appellant admitted that

he stabbed Linda Jackson, his girlfriend, at the Conoco convenience market and

that he “did it out of love.” He explained that Linda was married and that they were

having an affair. The appellant also asserted that Linda was “carrying his child.”

During his statement, the appellant began crying and stated that “[he] would never

do it again.”



       Additionally, the appellant stated that he “hung out” at the Conoco market,


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although he had previously been warned to stay away from the store. He did not

know that Linda Jackson was going to be at the store. When Ms. Jackson got out of

the car of another man, the appellant approached her and tried to talk to her. She

responded that she didn’t want to be bothered and entered the store. The appellant

withdrew. Shortly thereafter, the appellant reentered the store; this time “[he] lost it,

[he] just couldn’t take it,” and “stuck her.” The appellant then walked out of the store

and left. He explained that he carried the knife on his person at all times for

protection. He also agreed that, “at the time, he was trying to kill her.”



        The night of the incident, Ms. Jackson underwent surgery on her hand. Ms.

Jackson explained that, as the result of the stabbing, she can no longer “make a full

fist and [she] can’t hardly lift nothing [sic], and when it get [sic] real cold, it aches real

bad.”



        At the close of the State’s proof, defense counsel moved for a directed

verdict as to the charge of attempted first degree murder. The trial court sustained

the motion and ordered that the trial proceed on the charge of attempted second

degree murder. After deliberations, the jury announced their verdict finding the

appellant guilty of attempted second degree murder.




                                         Analysis



        In his only issue, the appellant contends that the evidence is insufficient, as a

matter of law, to support a conviction for attempted second degree murder. He

concedes that, at best, he is only guilty of attempted voluntary manslaughter. The



trial court charged the jury on both offenses and the jury found the appellant guilty of

attempted second degree murder.


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         When a defendant challenges the sufficiency of the convicting evidence, we

must review the evidence in the light most favorable to the prosecution in

determining whether “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, 317, 99 S.Ct. 2781, 2789 (1979). We do not reweigh or reevaluate the

evidence and are required to afford the State the strongest legitimate view of the

proof contained in the record as well as all reasonable and legitimate inferences

which may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.

1978).



         A defendant challenging the sufficiency of the evidence has the burden of

illustrating to this court why the evidence is insufficient to support the verdict

returned by the trier of fact. This court will not disturb a verdict of guilt for lack of

sufficient evidence unless the facts contained in the record and any inferences

which may be drawn from the facts are insufficient, as a matter of law, for a rational

trier of fact to find the defendant guilty beyond a reasonable doubt. State v. Tuggle,

639 S.W.2d 913, 914 (Tenn. 1982).



         In this case, the appellant was convicted of attempted second degree

murder. Second degree murder is the “knowing killing of another.” Tenn. Code

Ann. § 39-13-210(a)(1) (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. Tenn. Code Ann. § 39-11-106(a)(20) (1997). 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.” See State v. Dale Nolan, No.

01C01-9511-CC-00387 (Tenn. Crim. App. at Nashville, Jun. 26, 1997), perm. to

appeal denied, (Tenn. Mar. 2, 1998) (citations omitted). See generally Tenn. Code


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Ann. § 39-12-101 (a)(1), (2), (3) (1997).       The appellant argues that the evidence

supports only a conviction for attempted voluntary manslaughter. Voluntary

manslaughter is “the intentional or knowing killing of another in a state of passion

produced by adequate provocation sufficient to lead a reasonable person to act in

an irrational manner.” See Tenn. Code Ann. § 39-13-211(a) (1997).



       Whether the acts of the appellant constitute a “knowing” attempt (second

degree murder) or an attempt due to “adequate provocation” (voluntary

manslaughter) is a question for the jury. State v. Johnson, 909 S.W.2d 461, 464

(Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1995). The proof at trial

established that the appellant confronted the victim at the Conoco market after he

saw her exit the vehicle of another man. Ms. Jackson sought assistance from the

store cashier and the appellant retreated. Sometime thereafter, the appellant

reentered the store and stabbed the victim. There is no proof that the victim said or

did any thing to provoke the appellant. Additionally, he later admitted to Detective

Sowder that he was trying to kill the victim at the time of the incident.



       Accordingly, we conclude, as a matter of law, that the evidence is sufficient to

support a finding by the jury that the appellant is guilty of attempted second degree

murder. Tenn. R. App. P. 13(e). The judgment is affirmed.




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                          ____________________________________
                          DAVID G. HAYES, Judge




CONCUR:




________________________________________
ALAN E. GLENN, Judge



________________________________________
JOE H. WALKER, III, Special Judge




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