         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                     AT NASHVILLE
                                 December 12, 2001 Session

                 STATE OF TENNESSEE v. WILLIAM BINKLEY

                    Appeal from the Circuit Court for Rutherford County
                        No. F-47453    James K. Clayton, Jr., Judge



                      No. M2001-00404-CCA-R3-CD - Filed April 5, 2002



A Rutherford County jury convicted the defendant, William Binkley, of criminal attempt to commit
first-degree murder and reckless endangerment in connection with the shooting of the defendant’s
former girlfriend. The trial court sentenced the defendant as a Range I standard offender to 23 years
in the Department of Correction for the attempted first-degree murder conviction and to two years
for the reckless endangerment conviction. The sentences were ordered to be served consecutively
for an effective sentence of 25 years. Primarily aggrieved that he was not allowed to offer expert
testimony about his mental responsibility, the defendant appeals the trial court’s evidentiary ruling.
Secondarily, he questions the sufficiency of the evidence, and he complains that all relevant lesser-
included offenses were not included in the jury instructions. Based upon our review, we affirm the
judgment of the trial court.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOE G. RILEY and JOHN
EVERETT WILLIAMS, JJ., joined.

Joe M. Brandon, Jr., Smyrna, Tennessee, for the Appellant, William Binkley.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
William C. Whitesell, District Attorney General; and J. Paul Newman, Assistant District Attorney
General for the Appellee, State of Tennessee.

                                             OPINION

               On the afternoon of March 2, 1999, Julia Fisher heard an unusual noise at the back
door of her house, which was located on Jackson Ridge Road in the Rockvale community. When
she went to investigate, Ms. Fisher discovered her next-door neighbor, Melissa Tucker, lying on her
side on the pavement outside the back door. Ms. Tucker was bleeding profusely. Ms. Fisher
summoned medical help, and Ms. Tucker was transported to Middle Tennessee Medical Center in
Murfreesboro. Dr. Wayne Westmorland, an emergency room surgeon, performed an initial
assessment and determined that Ms. Tucker had a gunshot wound to the right side of her chest and
was bleeding to death. Dr. Westmorland took Ms. Tucker to the operating room and successfully
performed emergency surgery to stop the hemorrhage. The path of the bullet damaged the right
upper lobe of her right lung, requiring the removal of a portion of her lung. Ms. Tucker eventually
recovered from her injuries.

                Shortly following the shooting, the defendant showed up at Rockvale Elementary
School where the victim’s sister, Cynthia Morris, worked. The defendant had his and the victim’s
three year-old son with him in his vehicle. The defendant told Ms. Morris to take the crying child,
and he stated that he had just shot Ms. Morris’s sister. The defendant drove away from the school,
and he was next spotted when he stopped and parked his car at the Rutherford County Sheriff’s
Department’s sally port. There the defendant encountered several detectives to whom he reported
that he had shot someone and that the gun was inside his vehicle. Not surprisingly, the detective
arrested the defendant, and the defendant was later charged with attempted first degree murder, Tenn.
Code Ann. §§ 39-12-101 (1997), 39-13-202 (Supp. 2001), and felony reckless endangerment, Tenn.
Code Ann. § 39-13-103 (1997).

                 At trial, the state presented a thorough and straightforward case. We summarize and
report the trial proof from the vantage point most favorable to the state.

                The victim was the state’s first witness. She testified that she and the defendant met
in 1993. Shortly thereafter they began cohabiting, and in 1995 the couple had a child. During their
relationship, the victim and the defendant had separated once or twice, the last time being on Super
Bowl Sunday in January 1999. The couple had been living in Shelbyville, but the victim and the
child moved to Rutherford County.

               On Tuesday morning, March 2, 1999, the victim was at her house with the child. The
defendant called at 9:30 a.m., and when the victim answered the phone, he said, “Hello. Why did
you lie to me?” The victim expressed puzzlement, whereupon the defendant complained that
instead of spending the weekend with him, she was working. Exasperated, the victim blurted out
that they were never going to get back together, so each of them needed to go ahead with their lives.
She assured the defendant that he could see their child at any time but that she just could not live
with him.

                 Approximately three hours later, the defendant came to the victim’s house. The front
door was open, and the defendant entered by way of the unlocked screened door. The victim was
sitting on the couch in her living room; she was talking to her mother on the telephone, and the child
was near an end table on the side of the couch where the victim was seated. The defendant walked
up to the victim and asked to whom the victim was speaking. She replied that it was her mother.
The defendant then stated, “Hang up the phone, tell her bye, I’m here to kill you.” The victim looked
away “for a split second,” and when she looked back, the defendant was pointing a nine millimeter
revolver at her. The victim hung up the telephone, begged the defendant not to shoot, and promised


                                                 -2-
to get back together with him. The defendant told her that he was “tired of being used.” The victim
started to rise from the couch, but before she could stand completely, the defendant shot her in the
sternum from a distance of less than three feet. The victim managed to escape from her house to
summon help from her neighbor.

                Emma Lester and Patricia Johnson worked with the victim’s sister, Cynthia Morris,
in the cafeteria at Rockvale Elementary School. They were outside the school when the defendant
drove onto the school grounds on March 2. They testified at trial that the defendant appeared
normal. Lester and Johnson witnessed the defendant take his child out of the automobile and leave
the child with Morris. Lester and Johnson also heard, and so testified at trial, the defendant tell
Morris, “I just shot your sister.” According to the women, before the defendant left, he also told
Morris that he was going to “turn [himself] in to the law.” At trial, the state called Morris to testify
after the examination of Lester and Johnson was completed. Morris corroborated the account given
by her co-workers of the defendant’s behavior and statements.

               The deputies at the Rutherford County Sheriff’s Department, who came into contact
with the defendant later that day, also testified at trial. All of the deputies testified that the defendant
appeared normal. The first deputy who encountered the defendant was George Alexander. Deputy
Alexander was preparing to get into his patrol vehicle parked in the sally port when the defendant
drove up and stopped. Deputy Alexander testified that the defendant got out of his vehicle and
volunteered, “I just shot someone.” The defendant further told the deputy that “the gun is inside the
car on the floorboard.” Detective Troy Hooker was in the sally port at the same time; he testified
that he overheard the defendant state that he had shot somebody out on Jackson Ridge Road.
Detective Hooker saw the defendant point at the defendant’s car and mention that the gun was inside.

                 The gun in the defendant’s vehicle was confiscated and sent to the Tennessee Bureau
of Investigation Crime Lab. Forensic firearms identification expert Don Carman testified at trial.
He compared the weapon with a spent cartridge found in the victim’s home, and in his opinion the
cartridge was fired from the revolver. Dr. Westmoreland, who operated on Ms. Tucker, also testified
at trial, and he described the entry and exit wounds from the shooting.

                After the state rested, the defendant and two of his children testified. The defendant
claimed to have no memory of the shooting. He testified that he recalled waking up that morning
about 4:30 a.m. When he was unable to get back to sleep, he took a valium that had been given to
him by the victim. The defendant testified that he had never before ingested valium. Eventually,
the defendant fell back asleep. He stated that the next thing he remembered was being at the school;
his child was crying, and he noticed blood on his hand. He turned the child over to Ms. Morris, and
he testified that he told her that he thought he had “shot Melissa.” The defendant testified that he
did not recollect leaving the school, and the next event he could recall was being at the police station
talking to Deputy Alexander.

                 As background for his actions on March 2, the defendant testified that before he and
the victim last separated on Super Bowl Sunday he began experiencing troubling thoughts involving


                                                    -3-
killing his family. Shortly after the victim and the child moved out, he became depressed to the point
that he voluntarily admitted himself to Highland Rim Medical Center. He testified that he did not
stay long, however, because he did not like the medicine prescribed for him at the center. The
defendant discharged himself from the center against medical advice, but on February 13 and again
on February 20, the defendant went to see a local psychiatrist, Dr. Alex Fider. Dr. Fider prescribed
haldol, celexa, and cogenten for the defendant, which he was taking at the time of the shooting. The
defendant offered no expert evidence regarding how the medicine he was taking, alone or in
conjunction with the single valium he took the morning before the shooting, may have affected his
behavior. Indeed, the defendant testified at one point that the prescription medicine made him
calmer.

                On cross examination, the defendant admitted that he was jealous of the victim, but
he insisted that he was not obsessed with her. Even so, the defendant wrote the victim a note after
she left. The defendant was shown the note in which he expressed that he was afraid that someone
would take the victim away from him and that she would find someone else when she went to work.

                Two of the defendant’s grown children testified for him. They portrayed their father
as loving and non-abusive, and they testified that the defendant never appeared to them to be jealous
of the victim. In rebuttal, the state called the victim’s niece and sister-in-law, who contradicted the
claim by the defendant’s children that he was not jealous of the victim.

               The jury deliberated and considered the evidence. The jury found the defendant guilty
of attempted first-degree murder in connection with Ms. Tucker’s shooting and guilty of reckless
endangerment regarding his son who was present during the shooting.

                                        I. Sufficiency of the Evidence1

                The defendant devotes two sentences in the argument section of his brief to contesting
the sufficiency of the evidence to support his conviction of attempted first-degree murder. Not only
has this issue been waived for failure to cite to any portion of the record, but it also is miscast as an
evidence sufficiency argument.

                First, the rules of this court clearly specify that “[i]ssues which are not supported by
argument, citation to authorities, or appropriate references to the record will be treated as waived in
this court.” Tenn. Ct. Crim. App. R. 10(b). Waiver, we believe, is an appropriate disposition in this
instance. See State v. Schaller, 975 S.W.2d 313 (Tenn. Crim. App. 1997). Second, the defendant
couches his argument in terms of the inability of any rational juror to find “the essential elements
beyond a reasonable doubt had the trial court of [sic] permitted testimony of Dr. Craig and Dr. Fider
as it would relate to ‘diminished capacity.’” The sufficiency of the convicting evidence, however,
is examined in light of the evidence actually presented to the jury. See State v. Longstreet, 619
S.W.2d 97, 100-01 (Tenn. 1981). Evidence that a defendant claims was improperly excluded does


       1
           W e address the issues in this case in a different order than they have been presented in the defendant’s brief.

                                                           -4-
not implicate the state’s failure or success in proving its case; the remedy for the incorrect and
prejudicially harmful rejection of evidence is reversal for trial error, not dismissal of the conviction.
See id.2

                                        II. Exclusion of Expert Testimony

                The defendant insists that the essence of his defense at trial was that at the time of the
shooting, he lacked the requisite mental state for attempted first-degree murder. He proposed to
support that theory of defense by eliciting expert testimony at trial from Drs. Craig and Fider. The
defendant complains that the trial court improperly disallowed the expert testimony thereby
depriving him of the means to challenge the state’s case. We disagree that the testimony was
erroneously excluded.

                Pretrial, the defendant filed a notice of insanity defense and a notice of intention to
introduce expert testimony at trial bearing on the defendant’s mental state. A mental evaluation of
the defendant was performed, and the evaluator advised the trial court and the parties that the
defendant was competent to stand trial and that an insanity defense could not be supported. Slightly
less than two weeks before the trial was scheduled to begin, the state filed a motion in limine seeking
an order that the defendant refrain from interjecting “diminished capacity” into the trial until a jury-
out hearing was held to determine the admissibility of any such evidence.

               The state’s motion was called for hearing approximately one week before trial. The
defendant presented the testimony of Dr. Allen Craig and Dr. Alex Fider, the experts whom he
anticipated using at trial. We briefly summarize their testimony to place the trial court’s ruling in
context.

                 Dr. Craig, a psychiatrist, encountered the defendant on February 2, 1999, when the
defendant voluntarily admitted himself to the Harton Psychiatric Center in Tullahoma. Dr. Craig
testified that the defendant did not want to take the prescribed medications, and he left against
medical advice after spending only two nights at the Center. The defendant’s abrupt departure
preempted psychological testing. Based on the defendant’s subjective manifestations and verbal
account of his difficulties, Dr. Craig testified that the defendant had severe depression with possible
psychotic features. In his medical notes, Dr. Craig also indicated that the defendant was having
paranoid ideations stemming from his jealousy about Ms. Tucker and his intense fear that he would
harm her.

               Dr. Craig had no other contact with the defendant and, consequently, no opportunity
to discuss with the defendant his thought process at the time of the shooting. Dr. Craig denied that


         2
            At any rate, wh ether to accredit ev idence of “dim inished cap acity” is a dec ision entrusted to the trier o r fact,
and a reviewing cou rt will not substitute its judgment for that of the fact finder. See, e.g., State v. Williams, 657 S.W.2d
405, 410 (Ten n. 19 83) (jury verd ict accredits ev idence presented by the state and reso lves all conflicts in favor of the
state); State v. Cabbage, 571 S.W .2d 832, 835 (Tenn. 197 8).

                                                               -5-
the defendant was incompetent when evaluated in February, and Dr. Craig did not take the position
that the defendant was insane at the time the offense was committed. Indeed, Dr. Craig detected no
impairment in the defendant’s ability to act intentionally or knowingly. In response to a question
from the trial court, Dr. Craig disavowed any ability to offer an expert opinion about the defendant’s
mental state at the time of the shooting, which occurred a month after Dr. Craig’s last contact with
the defendant.

                 Dr. Alex Fider, a psychiatrist in private practice in Shelbyville, testified at the hearing
that he first saw the defendant on February 13. Based upon his review of Dr. Craig’s notes and the
defendant’s account of his symptoms, Dr. Fider arrived at a tentative “working” diagnosis of
delusional disorder. Dr. Fider prescribed anti-depressant and anti-psychotic medications for the
defendant. Dr. Fider saw the defendant a second and final time on February 20 for a follow-up visit
to evaluate the efficacy of the prescribed medications. Dr. Fider testified that he could offer no
opinion about the defendant’s ability to premeditate and to act intentionally and knowingly.
Moreover, based on his brief interaction with the defendant, Dr. Fider testified that he was not
capable of offering an opinion to a reasonable degree of medical certainty that the defendant, in fact,
suffered from a delusional disorder.

                After hearing the testimony, the trial court ruled that the defendant would not be
allowed to present his evidence of diminished capacity. The basis for the ruling was threefold. First,
Dr. Craig’s testimony was based entirely on subjective, rather than objective findings. Dr. Fider’s
testimony was similarly grounded with the exception that he spoke briefly with Ms. Tucker on the
telephone about the medication’s effect on the defendant. Second, both doctors were of the opinion
that the defendant was not incompetent or insane and that he was able to act intentionally and
knowingly. Last, neither one of the doctors could offer an opinion that the defendant was unable to
act intentionally, knowingly, and with the requisite intent at the time of the commission of the
offense.

               The standard of admissibility of “diminished capacity” type evidence was succinctly
coined in State v. Hall, 958 S.W.2d 679, 689 (Tenn. 1997).

                [T]o gain admissibility, expert testimony regarding a defendant’s
                incapacity to form the required mental state must satisfy the general
                relevancy standards as well as the evidentiary rules which specifically
                govern expert testimony. Assuming that those standards are satisfied,
                psychiatric evidence that the defendant lacks the capacity, because of
                mental disease or defect, to form the requisite culpable mental state
                to commit the offense charged is admissible under Tennessee law.

Particularly apt to the case before us is the caveat in Hall that the testimony “must demonstrate” that
the claimed inability to form the culpable mental state was “the product of a mental disease or defect,
not just a particular emotional state or mental condition. It is the showing of a lack of capacity to
form the requisite culpable mental intent that is central to evaluating the admissibility of expert
psychiatric testimony on the issue.” Id. at 690. Admissibility, “as with most other evidentiary

                                                    -6-
questions, . . . is a matter which largely rests within the sound discretion of the trial court.” Id. at
689.

                Pursuant to the Hall standard of admissibility, we are of the opinion that the trial court
did not abuse its discretion in excluding the testimony of Drs. Craig and Fider, which the defendant
sought to present. At best, these psychiatrists had reached a diagnosis, which was far from
definitive, that the defendant suffered from a delusional disorder and/or severe depression with
possible psychotic features. These doctors never testified that the defendant lacked the capacity to
premeditate or to act intentionally or knowingly because of a mental disease or defect. During their
brief examinations, the defendant did not display symptoms indicative of insanity or mental
incompetence. In addition, neither doctor had discussed the facts of the attempted murder with the
defendant, so neither one was prepared to speculate that at the time of the shooting the defendant
lacked the capacity to form the requisite intent for attempted first-degree murder.

               The trial court correctly determined that the defendant’s evidence did not meet the
relevancy standard set out in Hall, and we affirm the ruling excluding the evidence.

                            III. Jury Instruction: Lesser-included Offenses

                 The defendant’s final attack on his attempted first-degree murder conviction is that
the trial court improperly refused to instruct the jury on the lesser-included offenses of attempted
voluntary manslaughter and attempted criminally negligent homicide. Determining which lesser-
included offenses should be submitted for the jury’s consideration is a mixed question of law and
fact; consequently, the issue is reviewed de novo on appeal with no presumption of correctness. See
State v. Bowles, 52 S.W.3d 69, 74 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).
As we shall explain, the defendant is entitled to no relief on his claim.

               We can quickly dispose of the second part of the defendant’s lesser-included offense
argument relative to attempted criminally negligent homicide. Tennessee does not recognize the
crime of “attempted” criminally negligent homicide because a person cannot intend to perform an
unintentional act. State v. Donald Eady, Sr., No. E2000-01940-CCA-R3-CD, slip op. at 7 (Tenn.
Crim. App., Knoxville, July 30, 2001). Ergo, the trial court did not err by refusing to charge a
nonexistent offense.

                 As for the failure in this case to charge attempted voluntary manslaughter3, three
issues must be considered: (1) whether the offense qualifies as a lesser-included offense; (2) whether
there is evidentiary support for an instruction on the lesser-included offense; and (3) whether any
failure to instruct is harmless. See Burns, 6 S.W.3d at 467-69.




         3
           Unlike “attempted” criminally negligent hom icide, “attemp ted” voluntary ma nslau ghter is an offense. See
State v. Howard Martin Adams, No. 03C0 1-9403 -CR-001 23 (Tenn . Crim. App., Kn oxville, Jan. 1, 1995).

                                                         -7-
               Turning to the first issue, the law is settled that voluntary manslaughter is a lesser-
included offense of first-degree murder. State v. Sims, 45 S.W.3d 1, 21 (Tenn. 2001); State v.
Williams, 977 S.W.2d 101, 104 (Tenn. 1998). Likewise, attempted voluntary manslaughter is a
lesser-included offense of attempted first-degree murder. See State v. Jake Christopher Reynolds,
No. M2000-00210-CCA-R3-CD (Tenn. Crim. App., Nashville, May 23, 2001) (defendant charged
with attempted first-degree murder; evidence sufficient to sustain conviction of lesser-included
offense of attempted voluntary manslaughter).

               Next, we consider whether the evidence justified an instruction on the lesser-included
offense of attempted voluntary manslaughter in this case. Burns devised a two-prong analysis for
our use.

                First, the trial court must determine whether any evidence exists that
                reasonable minds could accept as to the lesser-included offense. In
                making this determination, the trial court must view the evidence
                liberally in the light most favorable to the existence of the lesser-
                included offense without making any judgments on the credibility of
                such evidence. Second, the trial court must determine if the evidence,
                viewed in this light, is legally sufficient to support a conviction for
                the lesser-included offense.

Burns, 6 S.W.3d at 469. This “justification” inquiry has been fleshed out in decisions subsequent
to Burns, the most recent of which is State v. Walter Lee Allen, – S.W.3d –, No. E1998-00416-SC-
R11-CD (Tenn., Knoxville, Feb. 22, 2002), wherein the failure to instruct was held to be reversible
error.

                 The lesser-included offense issue in Walter Lee Allen concerned the trial court’s
failure to instruct the jury on facilitation of robbery as a lesser-included offense of the charged crime
of aggravated robbery. The only lesser-included offense submitted to the jury in that case was
robbery. The jury rejected the greater offense and convicted the defendant of robbery. Pursuant to
Burns, the court categorized facilitation of robbery as a Burns part (c)(1) lesser-included offense of
aggravated robbery “because it is facilitation of an offense [robbery] that otherwise meets the
definition of a lesser-included offense [of aggravated robbery] in part (a).” Id., slip op. at 5.

               The proof in Allen showed that the defendant “stood silently in the doorway of the
[Fast-Stop Market] as his accomplice robbed the clerk at gunpoint.” Id., slip op. at 6. Although
there was no dispute that a deadly weapon was used in the robbery, the court, nevertheless,
concluded that the evidence justified an instruction on facilitation of robbery, which does not require
proof of the use of a deadly weapon. The basis for that conclusion guides our analysis in this case.

               Robbery is established by proof of “the intentional or knowing theft of property from
the person of another by violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401
(1997). Use of a deadly weapon or serious bodily injury are the features that distinguish aggravated




                                                  -8-
robbery from robbery. See Tenn. Code Ann. § 39-13-402(1), (2) (1997).4 Robbery is a lesser-
included offense of aggravated robbery under Burns part (a) because all of the statutory elements of
robbery are included within the statutory elements of aggravated robbery.

               In dealing with a Burns part (a) lesser-included offense, the “general rule,” according
to the Allen court, is that “evidence sufficient to warrant an instruction on the greater offense also
will support an instruction on a lesser offense,” because “[i]n proving the greater offense the State
necessarily has proven the lesser offense.” Walter Lee Allen, slip op. at 5. Allen dispels the
previously prevailing notion that in the Burns part (a) situation, an instruction is not required unless
reasonable minds could accept that “only” the lesser offense occurred. Id., slip op. at 6. In other
words, “the Burns analysis does not preclude finding that the same evidence supports an instruction
on both the greater offense and the lesser offense.” Id. For this reason, the lesser-included offense
instruction actually given in Allen for simple robbery was justified and proper despite that the
evidence of the gunpoint robbery of the market clerk was undisputed.

                 The implicit justification for instructing on lesser-included offenses under Burns part
(a) does not, according to Allen, “extend” to Burns part (c) lesser-included offenses. Burns part (c)
classifies facilitation, attempt, and solicitation as lesser-included offenses. However, because proof
of the greater charged offense will not automatically prove facilitation, attempt, or solicitation, the
justification analysis is required.

               After a careful examination of the record, the Allen court concluded that evidence
existed that reasonable minds could accept as to the offense of “facilitation” of robbery. The
evidence, the court found, also was legally sufficient to support a conviction for that lesser-included
offense. The court explained,

               [The defendant] displayed no weapon and took no property from the
               victim. There was no evidence that he received any proceeds of the
               robbery. The jury could have reasonably concluded that [the
               defendant] did not share the intent of his accomplice even though he
               knowingly furnished substantial assistance by blocking the door.
               Furthermore, consistent with the general rule [for Burns part (a)
               lesser- included offenses], the proof of aggravated robbery in this case
               necessarily proved robbery. Therefore evidence existed that
               reasonable minds could accept as to the offense of facilitation of
               robbery.


       4

                        39-13-402. Aggravated robbery. – (a) Aggravated rob bery is robbery
               as defined in § 39-13-401:
                        (1) Accomplished with a dead ly weapon or by display of any article used
               or fashioned to lead the victim to reasonably it to be a deadly weapon; or
                        (2) Where the victim suffers serious bodily injury.
                        (b) Aggravated robbery is a Class B felony.

                                                     -9-
Allen, slip op. at 6.

                In the case before us, both the charged offense and the defense requested lesser-
included offense are “attempt” crimes. The trial court charged all modes of “attempt” in connection
with first degree murder and in connection with second-degree murder. Attempted second-degree
murder was submitted to the jury as a lesser-included offense. We noted earlier that attempted
voluntary manslaughter is, indeed, a lesser-included offense of the charged crime of attempted first-
degree murder; however, attempted voluntary manslaughter is not a lesser offense under Burns part
(a). See State v. Dominy, 6 S.W.3d 472, 477 n.9 (Tenn. 1999) (“passion” language in the definition
of voluntary manslaughter simply reflects a less culpable mental state than required for first or
second degree murder). Consequently, the general rule set out in Walter Lee Allen for Burns part
(a) lesser offenses does not control the justification analysis.

               Nor is attempted voluntary manslaughter a lesser-included offense under Burns part
(c), which specifies that an offense is a lesser-included offense if

                (c) it consists of

                        (1) facilitation of the offense charged . . . ; 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);

                        (3) solicitation to commit the offense charged . . . .

Burns, 6 S.W.3d at 467 (emphasis added). Attempted voluntary manslaughter is not an “attempt”
to commit “attempted” first-degree murder (the charged offense) or “attempted” second-degree
murder (a lesser offense that was charged in this case).

                Attempted voluntary manslaughter, however, is a lesser-included offense of attempted
first-degree murder under Burns part (b). See Dominy, 6 S.W.3d at 477 n.9. While Walter Lee Allen
stated that the general rule for Burns part (a) lesser offenses does not extend to part (c) lesser
offenses, without mentioning part (b) offenses, we see no reason why part (b) and (c) lesser-included
offenses should be analyzed differently. As with lesser-included offenses under part (c), proof of
the greater offense will not necessarily prove the lesser-included offense under part (b).

               The proof in this case showed that the defendant calmly entered the victim’s house,
walked up to her, told her to hang up the phone and that he was there to kill her, pointed a revolver
at the victim while telling her that he was “tired of being used,” and then discharged the gun into her
sternum. Claiming that he did not remember shooting the victim, the defendant could not and did
not dispute the victim’s version of the attempted homicide.



                                                  -10-
               This evidence does not raise an issue of passion upon adequate provocation necessary
for voluntary manslaughter. The jury in this case was not obligated to believe the victim’s account
of the defendant’s statement and demeanor when he shot her; however, in that scenario, the jury
would have had no basis for finding that the defendant acted passionately upon adequate
provocation. In such a situation, reasonable minds could not find that the defendant committed
attempted voluntary manslaughter by being adequately provoked into a passionate act. See State v.
James Wesley Osborne, No. E1999-01071-CCA-R3-CD, slip op. at 9 (Tenn. Crim. App., Knoxville,
June 14, 2001), perm. app. denied (Tenn. 2001); State v. Robert Lee Paytee, No. M2000-00257-
CCA-R3-CD, slip op. at 10 (Tenn. Crim. App., Nashville, May 3, 2001), perm. app. denied (Tenn.
2001); State v. Edward Lee Mooney, Sr., No. 02C01-9508-CC-00216, slip op. at 8 (Tenn. Crim.
App., Jackson, Dec. 30, 1998). Thus, the evidence does not warrant an instruction on the lesser-
included offense of attempted voluntary manslaughter.

                In the event we err in making this last determination, we now examine whether the
failure to charge attempted voluntary manslaughter was harmless error. An erroneous failure to give
a lesser-included offense instruction will result in reversal unless a reviewing court determines
beyond a reasonable doubt that the error did not affect the outcome of the trial. State v. Ely, 48
S.W.3d 710, 727 (Tenn. 2001). There is general agreement that the constitutional error in failing to
instruct may be declared harmless 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. Walter Lee Allen, slip op. at 7; State v. Williams, 977 S.W.2d at 106.

                In Walter Lee Allen, the court took the opportunity to provide additional guidance on
when an instructional error may be harmless, outside the Williams scenario. We are not required to
visit that harmless-error aspect of Walter Lee Allen, however, because by finding the defendant in
this case guilty of attempted first degree murder, to the exclusion of the charged immediately lesser
offense of attempted second degree murder, the jury necessarily rejected all other lesser offenses.
Had the failure to instruct been error, therefore, it would have been harmless beyond a reasonable
doubt.

              Now having reviewed and considered the issues raised on appeal, we affirm the
judgment of the trial court in this case.



                                      __________________________________________
                                      JAMES CURWOOD WITT, JR., JUDGE




                                                -11-
