         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs December 3, 2002

                   STATE OF TENNESSEE v. ROBERT CLARK

                  Direct Appeal from the Criminal Court for Shelby County
                          No. 01-05153   John P. Colton, Jr., Judge



                     No. W2002-00940-CCA-R3-CD - Filed June 18, 2003


Following a jury trial, the defendant, Robert Clark, was convicted of second degree murder, a Class
A felony, and sentenced to twenty-four years to be served at 100% as a violent offender. On appeal,
he argues that the evidence was insufficient to support his conviction and that the trial court
improperly instructed the jury regarding the definitions of the mental states pertaining to second
degree murder. Following our review, we affirm the judgment of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ALAN E. GLENN, J., delivered the opinion of the court, in which JOE G. RILEY and THOMAS T.
WOODALL, JJ., joined.

Robert Wilson Jones, Shelby County Public Defender; W. Mark Ward, Assistant Public Defender
(on appeal); Barry Kuhn, Assistant Public Defender (at trial); and Peter A. Stewart, III, Cordova,
Tennessee (at trial), for the appellant, Robert Clark.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General;
William L. Gibbons, District Attorney General; and R. Scott McCullough, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                                              FACTS

        During the early morning hours of July 18, 2000, the defendant’s fiancée, Kimberly Palmore,
was found severely beaten at the Cleaborne Temple homeless shelter in Memphis where she and the
defendant had been residing. The victim was transported by ambulance to the Regional Medical
Center (“The Med”) where she subsequently died on July 26, 2000, as a result of the injuries inflicted
upon her.
        At trial, the victim’s brother, Darren Palmore, described the victim’s condition when he saw
her at the hospital on the afternoon of July 18, 2000:

               Her head was swollen like this. Each one of her lips was about that
               big. The white of her eyes were swollen so bad that her eye lids
               wouldn’t close. She was just swollen all over. She had tubes running
               all out of her and one of her lungs had collapsed and they had tubes
               going into her chest.

        Marion Washington, the general manager at the Taco Bell where the victim worked, testified
that the defendant came to the restaurant daily and stayed all day while the victim was working.
When Washington saw the victim at the hospital, she was “swollen all over, just swollen like a
balloon” and could not speak.

        Officer Carlos Love of the Memphis Police Department testified that he was dispatched to
the Cleaborne Temple on July 18, 2000, regarding a disturbance call. He found the victim, who had
bruises on her face and was bleeding from her mouth, lying on a mattress. The mattress was covered
with blood, and a bloody pillow was lying next to the victim’s head when he arrived. Officer Love
secured the crime scene and called for an ambulance.

        Bobby Lee Marshall, the chief administrator at Cleaborne Temple, testified the victim had
been living at the Temple’s homeless shelter for about a month and that the defendant had arrived
at about the same time. During the early morning hours of July 18, 2000, Marshall, along with John
Blazer and Keith Burrell, conducted a security check in the chapel where about a dozen homeless
men and women were sleeping. When they entered the chapel, the defendant, who was nude,
jumped up from between some church pews and began apologizing to Marshall, who then heard the
victim groan but did not realize she was injured. Believing that the defendant and the victim were
having “like an affair, or something,” Marshall told the defendant to gather his belongings and leave
the facility. As Marshall checked on the victim, the defendant disappeared “in a split second.”
Marshall found the victim gasping for breath, and he and two others picked up the mattress she was
lying on and carried her to the ladies’ lounge where it was cooler. Shortly thereafter, the police and
an ambulance arrived. Marshall described the victim and defendant’s relationship as “ransacked”
and said they had had severe problems.

       Sheila Saunders testified that she was staying at the Cleaborne Temple shelter on July 18,
2000, and had met the victim there. After being awakened by someone she identified as “Country,”
Saunders went to the ladies’ lounge where she saw the victim lying on a mattress:

               Her shirt was pulled up over her head. Her bra was pulled up here.
               Her [breast] was showing. Her pants and shorts were at the bottom
               of her ankles. And blood coming out of the side of her mouth. I
               notice[d] she had a hole on the side of her head.



                                                 -2-
An ambulance arrived, and Saunders accompanied the victim to The Med.

         The defendant, wearing a torn T-shirt, came to The Med and asked Saunders where the
victim was. Saunders told the defendant that he was in trouble because he had “raped [the victim,]
. . . beat her up and choked her,” to which he replied:

                Hey, I didn’t do all that, man, I didn’t rape my own lady . . . . I was
                between the benches fucking and she called out Keith’s name and I
                slapped her and she got loud at me and I slapped her again and she
                got louder and I put my hand around her and I choked her.

        Saunders and the defendant then went outside to talk, and Saunders told the defendant that
the police were looking for him. The defendant left, saying he would return, and Saunders went back
inside to the emergency waiting area. When the defendant subsequently returned, he was wearing
a different shirt and was crying and angry. The two again went outside to talk where the defendant
pulled a gun from underneath his shirt and said, “Keith and John, man, was fucking my old lady,
man, I’m going to kick Dr. Marshall’s ass. . . . I got this too . . . for that little nigger fuckin’ my gal.”
Frightened, Saunders asked the defendant to put the gun away, and the defendant put the gun back
under his shirt. They returned to the waiting area inside the hospital where a doctor informed them
they could go see the victim. As Saunders and the defendant were walking with the doctor to the
area where the victim was, Saunders told the doctor that the defendant had a gun and was the one
who had attacked the victim. The doctor immediately called for security, and the defendant took off
running. Saunders saw the defendant again later that day when the police were questioning him.

         Officer Richard Jewell, Jr., of the Memphis Police Department testified that he was
dispatched to The Med on July 18, 2000, regarding a prisoner being held by hospital security. Upon
his arrival, Jewell saw the defendant who had been handcuffed by Jewell’s partner. The officers then
transported the defendant to the domestic violence bureau. Asked if he remembered any statements
the defendant had made, Jewell recalled that the defendant had said, three times, “You’re not going
to convict me of this, because she’s not going to prosecute,” although he could not remember the
defendant’s exact words. No one questioned the defendant about the statement. Officer Jewell then
identified a property and evidence bag bearing a tag with the date of July 18, 2000, as well as his
name and that of his partner. The bag contained articles of clothing, including a pair of men’s blue
jeans, a “cut-up white tee-shirt, dirty,” a pair of gray boxer shorts, a black leather belt, and a pair of
white Nike Air tennis shoes with cream stripes, taken from the defendant.

       Beverly Wilson, the manager of inpatient operations at The Med, testified, from medical
records, that the victim was admitted to the hospital on July 18, 2000, at 3:10 a.m., for the stated
reason of “assaulted” and “numial mediastium pulmonary edema.”

       Dr. Cynthia Gardner, an assistant medical examiner for Shelby County, testified that she
performed the autopsy on the victim on July 26, 2000. The victim’s cause of death was
“complications of blunt trauma. The complication was that she developed adult respiratory distress


                                                    -3-
syndrome and it was a complication of blunt trauma to both the head and the neck.” Dr. Gardner
also found a hemorrhage in the deep tissues of the victim’s neck which was consistent with
strangulation. The victim’s injuries included: swelling of the brain; swelling in the soft tissues
around the eyes, as well as the eyes themselves; swelling in the chest, neck, and lips; hemorrhaging
in the soft tissue in the deep tissue of the scalp all the way down to the bone and even on the surface
of the bone; bruising on the upper right cheek, the right corner of the mouth, and on the tongue;
bruising of the right upper lip extending into the gum line of the left lower lip and a laceration in the
lips; bleeding in the right anterior stapes muscle in the neck and in the soft tissues surrounding the
thyroid gland; and adult respiratory distress syndrome which was caused by an inadequate supply
of oxygen. All of the victim’s autopsy findings “occurred as a result of the blunt trauma to the head
and to the neck.” Dr. Gardner opined that the deep hemorrhaging was caused by a substantial force
to the head and could have been produced by a “very forceful blow with a closed fist.” No alcohol
or illegal drugs were found in the victim’s blood at the time of the autopsy.

         Sergeant James L. Fitzpatrick of the Memphis Police Department Homicide Bureau testified
that he investigated the victim’s death and interviewed the defendant on July 28, 2000, after advising
him of his Miranda rights. The defendant signed a waiver of rights form after indicating that he
understood his rights and then gave a statement which was reduced to writing and signed and
initialed by the defendant. Sergeant Fitzpatrick was then permitted to read aloud the defendant’s
statement. The defendant said he had known the victim for almost two years, and they were to be
married on August 29, 2000. The defendant admitted he and the victim had an altercation in the
chapel on July 18, 2000, because “they were ‘pimpin’ her.” The defendant described the altercation:

                I see Kim comin out the lady’s area where the women’s bathroom
                was at and I see Dr. Marshall. . . . So I asked her what was up, what
                did Dr. Marshall say to you and she said, “nuthin”. So I went back
                into the chapel where we had our mats. So I started talkin to her
                again. She got angry cause I asked her what was Dr. Marshall askin
                [sic] her about. So I said, “why you getting loud, we can talk like two
                grown adults.” So I went over where she was at and we started talkin
                again and she told me don’t worry about it, she’ll take care of it. So
                I said, “okay.”

                        So I started kissin her and foolin around and we had sex and
                while we was having sex, I say, you must have been with somebody
                so she got mad again while we was havin sex. She said, “if I tell you,
                you can’t say nuthin but I know won’t love me anymore.” So I said,
                “Kim, we can talk about anything, just tell me what’s goin on.” So
                she started out by tellin me a date that Dr. Marshall and Keith and
                John had sent her on. She had to do sexual favors for a guy. She told
                me that other guys came and I asked her why she didn’t tell me that
                before and she said Dr. Marshall didn’t want her to and that he would
                kick both of us out. Then she said, “he knew everything about me.”


                                                  -4-
               So we laid down. I laid on my mat and she laid on hers. I said,
               “you’ve been with Dr. Marshall haven’t you” then she got upset and
               started fightin. So I grabbed her, pushed her head into the pillow and
               told her, don’t get loud. The[n] I let her up and told her to tell me the
               truth, what’s up. She was still mad and fightin so I grabbed the belt
               which was on my short pants that was underneath the bench beside
               her mat. I wrapped the belt around her neck once and choked her and
               told her don’t get loud, we can talk. So I let her up and she told me
               about Dr. Marshall, Keith and John. Then she got loud again. I
               choked her again with the belt that was around her neck. I let go of
               the belt, loosen it off her neck then I heard her cough. I put my hands
               over her mouth and wiped her mouth off.

                        I called her name, Kim, she said, “what”, I said, “talk to me”
               and she said, “what’cha want to know” and then she changed her
               mind. I hit her two times on the right side of her jaw, I said, “talk to
               me Kim”, she didn’t say nuthin, so I tightened the belt up and hit her
               two more times on the right side of her jaw. I loosened the belt, I
               heard her gag, I said, “Kim, open your mouth” so I tried to open her
               mouth. I put my head on her chest, her heart was still beatin but she
               wasn’t breathin good so I blew into her mouth and called her name,
               “Kim” she was moanin. She grabbed my arm and I put my head
               down toward her mouth, couldn’t understand what she was sayin so
               I said, “open your mouth, talk” then I heard a noise, someone was
               comin through the door, it was Dr. Marshall, then I took the belt from
               around Kim’s neck. He saw me and told me to come here and I was
               still naked and her underpants and pants were off one leg. So I getup,
               naked, go to Dr. Marshall. He said, “you son of a bitch, I should kill
               you, why did you do this in this chapel?” Then he said, “get your
               stuff and get out.” I said, “not without her” and he said, “get out” so
               I went to get my gray short pants and I got the belt but I couldn’t find
               my yellow shirt that I was wearin. Then John escorted me upstairs
               and Dr. Marshall went into the women’s lounge.

Sergeant Fitzpatrick said that the defendant had been incarcerated since his arrest on July 18, 2000,
and that the defendant first learned of the victim’s death on July 28, 2000, the day he gave his
statement.

       The defendant, testifying as the sole defense witness, said that he and the victim had lived
together for about a year and a half before coming to Memphis from Blytheville, Arkansas, in
February 2000 and were engaged to be married on August 29, 2000. They came to Memphis to seek
medical treatment for the victim’s son who was sick with sickle cell anemia and because the
defendant was having problems in Blytheville with his children’s mothers and had gotten “caught


                                                 -5-
with other charges over there about a situation that was going on.” When they arrived in Memphis,
they initially lived with two of the defendant’s cousins before going to live at the Cleaborne Temple
shelter. The victim went to the shelter around June 15, 2000, and the defendant went on July 1,
2000.

         As to what occurred on July 18, 2000, the defendant testified that he went to where the victim
was sleeping in the chapel to “comfort her.”1 The victim told him that Bobby Marshall and John
Brasley had raped her. Hearing this, the defendant became upset and asked the victim for details.
When the victim hesitated to respond, the defendant “hit her, two or three, maybe four times. But,
only on the right side of her jaw.” He next took his belt and “wrapped it around her neck, just a
couple of seconds.” The victim then began telling him what had been happening to her at the shelter.
After hearing a noise, the defendant, who was nude, told the victim to remain where she was and
then got up to walk around. He encountered Dr. Marshall and had a brief conversation with him.
The defendant returned to where the victim was, got his “short pants,” and told the victim he would
be right back. He then went upstairs, packed his bags, and left the shelter. He went “[d]own the
street to an open field,” put his bag behind a bush, and waited for about an hour before returning to
the shelter and waiting for the victim for about thirty minutes.

        The defendant said he then went to The Med because “I assumed that it was her, because me
and her had an altercation. Me and her, we did have a fight.” He admitted he “hit [the victim] kind
of hard on the jaw.” He also admitted seeing Sheila Saunders at The Med but denied raping the
victim, having a gun, or changing his shirt. The defendant said he was arrested that night outside
The Med and was taken to the domestic violence unit. At that time, the defendant thought that the
victim “had just got beat up, you know, hit. That was it.” He admitted telling the police that the
victim would not prosecute him because she loved him.

                                                    ANALYSIS

                                               I. Jury Instructions

        The defendant argues that the trial court erred in “instructing the jury regarding the
definitions of the mental states pertaining to second degree murder” and that the “erroneous
instructions effectively lowered the State’s burden of proof and denied the Appellant his
constitutional right to a unanimous jury verdict.”

      To prove second degree murder, the State was required to show that the defendant
“knowingly” killed the victim. As to “knowingly,” the trial court instructed the jury by reading
Tennessee Code Annotated section 39-11-106(a)(20):




         1
         On appeal, the d efendant’s counsel suggests that the defendant’s trial testimony “lacks clarity,” and we agree.
The defendant’s testimony is difficult to follow and, at times, seemingly contradictory.

                                                          -6-
                “Knowingly” means that 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.
                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.

        The defendant argues that the trial court’s instruction lessened the State’s burden of proof
for second degree murder because it contained all three definitions of knowingly rather than just the
applicable definition for the result-of-conduct offense of second degree murder; namely, the
defendant was aware that his conduct was reasonably certain to cause the death of the victim.

        To assess this claim, we will review the opinion of this court in State v. Page, 81 S.W.3d 781
(Tenn. Crim. App. 2002), in which the defendant made similar claims as to the trial court’s
instruction as to “knowingly.” The juvenile defendant in Page was tried as an adult and convicted
of second degree murder for causing the death of the victim by striking him in the back of the head
with a baseball bat. Id. at 782. At trial, the defendant admitted he had swung the bat at the victim,
but claimed he did it only to intimidate the victim, had not intended to hit him in the head, and could
not believe that he had died. Id. at 785. Defense counsel conceded that the defendant had hit the
victim in the head, but argued that the defendant had been intoxicated, was unable to appreciate his
conduct, and had “‘no understanding of how wrong it was . . . how severe it was at that time.’” Id.
In Page, the trial court instructed the jury as to “knowingly” presenting three options: “(1) that his
conduct is of a particular nature; or (2) that a particular circumstance exists; or (3) that the conduct
was reasonably certain to cause the result.” Id. at 786 (emphasis in original). On appeal, the
defendant argued, as in the present appeal, that the trial court lessened the State’s burden of proof
by instructing the jury that the knowing element of second degree murder could be established not
only by the defendant’s awareness that his conduct was reasonably certain to cause the result, but
also by the defendant’s awareness that his conduct was of a particular nature or that a particular
circumstance existed. Id. at 786. We agreed and remanded the case for a new trial for the jury to
be instructed that the knowing mens rea of second degree murder requires that the defendant have
acted with an awareness that his actions were reasonably certain to cause the death of the alleged
victim. Id. at 790.

         In the present appeal, the issue of the jury instructions as to “knowingly” was not raised either
during the trial or in the motion for new trial. Accordingly, we may consider this claim, raised for
the first time on appeal, only if it constitutes “plain error.” Our supreme court adopted, in State v.
Smith, 24 S.W.3d 274, 282 (Tenn. 2000), the five factors for identifying “plain error” which earlier
had been enunciated in State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994):

                        The Court of Criminal Appeals has developed five factors to
                consider when deciding whether an error constitutes "plain error" in
                the absence of an objection at trial: "(a) the record must clearly
                establish what occurred in the trial court; (b) a clear and unequivocal


                                                   -7-
               rule of law must have been breached; (c) a substantial right of the
               accused must have been adversely affected; (d) the accused did not
               waive the issue for tactical reasons; and (e) consideration of the error
               is 'necessary to do substantial justice.'"

        The court in Smith explained that “the presence of all five factors must be established by the
record before this Court will recognize the existence of plain error.” 24 S.W.3d at 283. In our
review of this matter, we will consider two cases which are procedurally similar to the present
appeal.

        In State v. Keith T. Dupree, No. W1999-01019-CCA-R3-CD, 2001 WL 91794, at *3 (Tenn.
Crim. App. Jan. 30, 2001), the trial court had instructed as to “knowingly” utilizing the pattern jury
instruction then in effect, which provided that it was established if the person was aware “either: (1)
that his conduct is of a particular nature; or (2) that a particular circumstance exists.” The
instructions omitted the part of the “knowingly” definition providing that “[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.” See Tenn. Code Ann. § 39-11-106(a)(20). The court in
Dupree explained why the instructional error was not harmless:

                      We are unable to find harmless error. The sole issue in this
               case was whether the killing was knowing or accidental. In other
               words, the sole issue was whether the defendant was aware that his
               conduct was reasonably certain to cause the result. Yet, this element
               was not conveyed to the jury, and a lesser standard was set forth.

2001 WL 91794, at *4.

       A further consideration in the court’s determination in Dupree that the error in instruction
was not harmless was the fact that the jury had asked the trial court the question, “According to the
law, does pointing a gun at someone else assume that the person pointing the gun ‘knows’ that the
gun will hurt the other person?” Id. at *5.

       In State v. Tony Martin, No. W2001-02221-CCA-R3-CD, 2003 WL 261937, at *8 (Tenn.
Crim. App. Feb. 7, 2003), the trial court gave instructions identical to those in the present appeal,
and no objection was made either during the trial or in the motion for new trial. The majority
determined that the instructional error was harmless, while Judge Joseph M. Tipton, in his
concurring opinion, opined that the court could not consider the issue because it did not constitute
plain error, for the State had not, in its final argument, utilized the erroneous definitions of
“knowingly” and the theories of the parties did not do so either. Id. at *10.

        Likewise, we cannot conclude that the instruction of “knowingly” utilized by the trial court
in the present appeal constitutes “plain error.” Since the record on appeal does not include either the
opening statements or closing arguments, we cannot determine to what extent, if any, the parties


                                                 -8-
utilized the superfluous language in the “knowingly” definition. Further, the jury’s question as to
this definition was not preserved, and we cannot speculate as to what it may have been. However,
we note that the trial court instructed the jury as to the lesser offenses of voluntary manslaughter,
reckless homicide, and criminally negligent homicide, and the defendant fully explained his version
of what had happened. By its verdict, the jury rejected his explanation. Because of that fact, as well
as the correct definition of “knowingly” having been within the instruction given to the jury, unlike
in Dupree, we respectfully disagree that we may consider this issue as “plain error.” Accordingly,
we conclude that this issue is waived because it was not raised at trial or in the motion for new trial.

                                  II. Sufficiency of the Evidence

        The defendant argues that the evidence was insufficient to support his conviction for second
degree murder because there was no proof that he “was aware that his conduct was reasonably
certain to cause the death of the alleged victim.” He asserts that at most the proof showed that he
“should have been aware of high risk that a death might occur.”

        In considering this issue, we apply the familiar rule that where sufficiency of the convicting
evidence is challenged, the relevant question of the reviewing court is “whether, after viewing the
evidence in the light most favorable to the prosecution, 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,
319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); see also State v. Evans, 838 S.W.2d 185,
190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992); Tenn. R.
App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury shall be set
aside if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a
reasonable doubt.”). All questions involving the credibility of witnesses, the weight and value to be
given the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the trial judge,
accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory
of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme court stated the
rationale for this rule:

                        This well-settled rule rests on a sound foundation. The trial
                judge and the jury see the witnesses face to face, hear their testimony
                and observe their demeanor on the stand. Thus the trial judge and
                jury are the primary instrumentality of justice to determine the weight
                and credibility to be given to the testimony of witnesses. In the trial
                forum alone is there human atmosphere and the totality of the
                evidence cannot be reproduced with a written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464,
370 S.W.2d 523 (1963)). A jury conviction removes the presumption of innocence with which a
defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted



                                                  -9-
defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).

        The defendant was convicted of second degree murder which is defined as “[a] 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.” Id. § 39-11-302(b).

        In his statement to Sergeant Fitzpatrick, the defendant testified that he had choked the victim
with his belt, loosened it, heard her cough, and hit her twice in the jaw when she did not talk to him.
He again tightened the belt around her neck and hit her twice more in the jaw. When he loosened
the belt, she “wasn’t breathin[g] good.” From this testimony, in addition to that of Bobby Lee
Marshall, who interrupted the beating, and Dr. Gardner, who said that the victim died as a result of
complications of blunt trauma, a reasonable jury could conclude that the defendant’s severe beating
of the victim resulted in her death, which was the foreseeable result of his beating and choking of
the victim.

                                          CONCLUSION

       Based upon the foregoing authorities and reasoning, we affirm the judgment of the trial court.


                                                        ___________________________________
                                                        ALAN E. GLENN, JUDGE




                                                 -10-
