        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON

                            JANUARY SESSION, 1996        FILED
                                                          March 25, 1999
STATE OF TENNESSEE,             )    C.C.A. NO. 02C01-9506-CR-00157
                                )                       Cecil Crowson, Jr.
                                                         Appellate C ourt Clerk
      Appe llant,               )
                                )
                                )    SHELBY COUNTY
VS.                             )
                                )    HON . BERN IE WEIN MAN
DARREN SMITH,                   )    JUDGE
                                )
      Appellee.                 )    (Direct Appeal - Reckless
                                )    Endangerment and Attempted
                                )    Second D egree Mu rder)




FOR THE APPELLANT:                   FOR THE APPELLEE:

JOHN KNOX WALKUP                     DANIEL A. SEWARD
Attorney General and Reporter        Attorney for Appellee
                                     P. O. Box 11207
EUGENE J. HONEA                      Memphis, TN 38111-0207
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493

WILLIAM L. GIBBONS
District Attorney General

REGINALD R. HENDERSON
KAREN COOK
Assistant District Attorney
201 Poplar Avenue
Memphis, TN 38104



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                     OPINION


       In this case the defendant, Darren Smith, was convicted by a Shelby

Coun ty jury of two (2) counts of attempte d second degree murder and four (4)

counts of reckless endangerment. The trial court sentenced him to concurrent

sentences of ten (10) years for each count of attempted murder and one (1) year

for each re ckless e ndang ermen t conviction. Following sentencing, the defendant

filed a motion for judgm ent of acq uittal or in the a lternative a n ew trial. The

motion alleged inter alia that the state failed to prove that t he defendant was

legally sane at the time of the commission of the offenses. The trial court agreed

and entered a judg ment of no t guilty by reaso n of ins anity on all char ges. It is

from this judgment that the state appeals. After a careful review of the re cord in

this case , we affirm th e judgm ent of the tria l court.



                                            I.




       The defendan t and Laura M oss were b oth police officers with the City of

Memphis. The couple became involved in a romantic relationship which ended

sometime in April, 1993. Apparently the defendant was angry over the break-up,

and the relationship between him and Moss became acrim oniou s. The coup le

filed formal co mplain ts agains t each oth er, and the defendant made several

threatening phone calls to Moss’ residence. On at least one occasion the

defendant came to Moss’ residence uninvited, d espite rep eated ins tructions to

stay away from her. This led to a physical altercation between the defendant and

Michael Hill, himself a police officer and Moss’ romantic interest at the time.



                                           -2-
        On June 4, 199 3, the d efend ant ca me to Moss ’ hom e to dis cuss a cred it

card statement with her. Moss did not have time to discuss the matter, but the

defendant persisted in telepho ning he r all day. Sometime between 8:00 p.m. and

9:00 p.m., the defendant called Moss and told her that he was coming over to her

house. Despite being told not to come, the defendant nevertheless had a friend

take him to Moss’ house. W hen Moss called the police, the defendant left on

foot.

        Later that night, Moss a nd Hill were in her b edroom wa tching television.

Her three (3) daughters and a niece were playing in another bedroom. Sudden ly,

a shotgun blast came through the window of the room where Mo ss and H ill were

located. The ch ildren beg an to scre am an d ran into the hallway. A second blast

came through the kitchen window, a third shot was fired through the dining room

window and a final blast splintered the front d oor. After the last shot, Moss and

Hill were able to se e the defend ant run from the house and drive away. Police

later recovered the shotgun from the defendant’s parent’s residence.               The

defendant confessed to the shooting when confronted by the police.

        At trial, Dr. Robert Freeman, a psychiatrist who treated the defendant for

depression, testified that a serious head injury ca used the de fendant to have

problems with social interaction.       Dr. Freeman opined that defendant was

suffering from “tem porary ins anity” at the tim e of the offe nse. The doctor testified

that there wa s a “poss ibility” that the defen dant lack ed “sub stantial cap acity to

apprec iate the wro ngfulne ss of his ac tions.”

        On cross-examination, the prosecution questioned Dr. Freeman regarding

an incident prior to defendant’s head injury where he punc hed o ut a win dow in

Moss’ residenc e and let h imself in. A lthough the docto r testified that the head

injury was a “large fac tor” in defendant’s “temporary insanity,” he stated that

                                          -3-
knowledge of the prior incident actually “strengthen[ed]” his diagnosis that

defendan t was suffering from post-trauma tic stress disorder.

        In rebuttal, the state introduced the defendant’s statement to law

enforcement authorities concerning the prior incident where he punched through

the window at Moss’ residence. Defendant was suspended for two (2) days from

his police d uties as a result of this in cident.

        At the conc lusion of th e proof, the jury found defend ant guilty of two (2)

counts of attempted second degree murder and four (4) counts of reckless

endan germe nt.

        Subseq uently, the defendant filed a motion for judgm ent of a cquitta l or in

the alternative a new trial, alleging that the state failed to carry its burden on the

issue of defend ant’s san ity at the time of the commission of the offenses. The

trial court found that the defendant presented sufficient proof to rebut the

presumption of sanity, and the state presented no reliable proof in support of

defenda nt’s sanity. Therefore, the trial court set aside the jury’s verdicts and

entered a judgment of not guilty by reason of insanity. From the trial court’s

judgment, the state brings this appeal as of right pursuant to Tenn. R. App. P.

3(c).



                                            II.




        In pertinent part, Tenn. R. Crim. P. 29(a) provides, “[t]he court on motion

of a defendant or of its own motion shall order the entry of judgment of acquittal

of one or more offenses charged in the indictment or information . . . if the

evidenc e is insufficien t to sustain a convictio n of such offense o r offense s.”




                                           -4-
       A motion for judgment of acquittal raises a qu estion of law for the trial court

to determ ine. State v. Adams, 916 S.W.2d 471, 473 (Tenn. Crim. App. 19 95).

In mak ing this determ ination , the trial c ourt is conce rned with the legal sufficiency

of the evidence, not the weight of the evide nce. State v. Adams, 916 S.W.2d at

473; State v. Hall, 656 S.W.2d 60, 61 (Tenn . Crim. App. 19 83). The trial court

must “look only at all of the eviden ce introduced by the State . . . take the

strongest legitimate view of it in favor of the State, and . . . allow a ll reaso nable

inferences from it in the State’s favor.” State v. Hall, 656 S .W .2d at 6 1. This

Court must apply the same standard when resolving issues concerning the grant

or denia l of a judgm ent of acq uittal. State v. Adams, 916 S.W.2d at 473.



                                           III.




       Insanity at the time that an offe nse is co mm itted is an ab solute de fense to

a crime. The standard for proving a plea of insanity was established in Graham

v. State, 547 S .W .2d 53 1 (Te nn. 19 77), an d was subs eque ntly codified at Tenn.

Code Ann. § 39-11-501(a) (1991), which provides:

       Insanity is a defense to prosecution if, at the time of such co nduct,
       as a result of mental disease or defect, the person lacked
       substantial capacity either to appreciate the wrongfulness of the
       perso n’s conduct or to conform that conduct to the requirements of
       the law.

       A defendant is presumed sane; therefore, at the time of the instant

offenses, it was the defendant who initially had to present evidence of his or her

insanity. Spurloc k v. State, 368 S.W.2d 299, 300 (Tenn . 1963). Once evidence

had been p resente d which raised a re asona ble dou bt as to the defendant’ s

sanity, the burden of proof shifted to the state to establish the defen dant’s sa nity

beyond a reas onab le doubt. State v. Sparks, 891 S.W.2d 607, 615 (Tenn. 199 5).

                                           -5-
“Sanity thus becom es an elem ent of the crime.” State v. Clayton, 656 S.W .2d

344, 346 (Tenn. 1983). To meet its burden, the state had establish:

        (1) the defendant was not “suffering from a mental illness at the time
        of the commission of the crime,” or

        (2) the illne ss pro ved did not “pre vent his knowing the wrongfulness
        of his act” and did no t “render him substantially incapable of
        conforming his conduct to the requirements of the law he is charged
        with violating .”

State v. Jackson, 890 S.W.2d 436, 440 (Tenn. 1994) (quoting State v. Clayton,

656 S.W .2d at 351). 1

        The s tate could meet its b urden o f proving sa nity

        through the introduction of expert testimony on the issue, or through
        lay testim ony wh ere a p roper found ation fo r the ex press ing of an
        opinio n is laid, or throu gh the sh owing o f acts or statements of the
        petitioner, at or very near the time of the commission of the crime,
        which are co nsistent with sanity and inconsistent with insa nity.

State v. Sparks, 891 S.W.2d at 461 (quoting Edwa rds v. State , 540 S.W.2d 641,

646 (T enn. 19 76)); State v. Jackson, 890 S.W.2d at 440.



                                                 IV.




        Entry of a judgm ent of acq uittal by reas on of insa nity is the ap propriate

remedy where the burden of proof on the element of sanity has shifted to the

state, and the state fails to carry it. Many jurisdictions, both federal and state,

adhere to the view that it is the trial court’s duty to determine, as a matter of law,

whether a defendant has p resen ted su fficient e videnc e to pu t his san ity in

question. See United States v. D avis, 772 F.2d 13 39, 1343 (7th Cir. 1985);

United States v. McCracken, 488 F.2d 406, 409 (5th Cir. 1974); United States v.


        1
          Effective July 1, 1995, the legislature amended the insanity statute, making insanity an
affirmative defense whereby the defendant has the burden of establishing his or her insanity by clear and
convincing evidence. Tenn. Co de Ann. § 39-11-501(a) (Su pp. 1995).

                                                 -6-
Green, 468 F.2d 116, 118 n. 3 (4 th Cir. 197 2); Davis v. United States, 364 F.2d

572, 574 (10th Cir. 1 966); Otney v. United States, 340 F.2 d 696, 6 98 (10th Cir.

1965); Fitts v. United States, 284 F.2d 108, 112 (10 th Cir. 1960); United States

v. Horne, 304 F.Supp. 727, 730 (E.D. T enn. 19 69); Peop le v. Hill, 934 P.2d 821,

826 (Colo. 1997); Commonwealth v. Sirbaugh, 500 A.2 d 453, 4 60 (Pa . Super. C t.

1985); State v. Day, 560 P.2 d 945, 9 47 (N.M . Ct. App. 1977 ); People v. Johnson,

503 P.2d 1019 , 1020 (Colo. 1 972); McCra cken v. S tate, 237 A.2d 87, 88-89 (Md.

Ct. Spec. App. 1968 ). Althou gh T enne ssee case law is sile nt on th is poin t, this

Court agrees that the trial court should determine whether the defendant has

presented sufficient evidence to shift the burden of proof to the state on the

element of sanity.     Furtherm ore, this Court will not overtu rn a trial cou rt’s

determination in this regard absent a finding of an abuse of discretion.

       Notwithstanding the jury’s verd icts of guilt an d implicit reje ction of the

insanity defense, the trial court found that the defendant in the present case had

produc ed sufficien t evidence to rebut the presum ption of sa nity. The trial court

did not abu se its discre tion in ma king this de termina tion. As a re sult, the state

had the burden to prove the defendant’s sanity beyon d a reas onable doubt.

State v. Sparks, 891 S.W .2d at 615 ; State v. Clayton, 656 S.W.2d at 346.

       Even though the defendant notified the state of his in tention to present an

insanity defen se ap proxim ately five (5) mo nths prior to trial, the state fa iled to

present any ex pert tes timon y on the issue o f defen dant’s sanity a t trial. Instead,

the state relied upon lay testimon y conce rning acts or statem ents of the

defendant prior to and after the commission of the offenses. The victim testified

that defendant threatened her and Officer Hill on several prior occasions. The

state prese nted th e defe ndan t’s state men t conc erning the prio r incident where

he punched through a win dow at Mo ss’ residence. Furthermore, although the

                                          -7-
defendant testified that he could not remember committing the offenses, Officer

Harvey Edingbough stated that the defendant admitted shooting into Moss’ home

shortly after the incident. However, while this testimony might be construed as

being consistent w ith sanity, suc h testimo ny was n ot nece ssarily inco nsistent with

insanity. See State v. Sparks, 891 S.W .2d at 461 ; State v. Jackson, 890 S.W.2d

at 440. There fore, the sta te’s eviden ce was insufficient to estab lish de fenda nt’s

sanity bey ond a re asona ble dou bt.

       In this case we offer no opinion as to the defendant’s actual menta l state

at the time o f the offens e. W e are sim ply saying that under the applicable law at

the time of the offense the defendant offered sufficient evidence in insanity for the

trial judge to properly conclude that the burden of proof on this issue had shifted

to the stated . Howe ver, the state made little effort to prove defend ant’s san ity

beyond a reaso nable d oubt. Be cause the state fa iled to carry its burde n on th is

issue, the trial court properly granted the defendant’s motion for judgment of

acquittal. Accordingly, the judgment of the trial court is AFFIRMED.




                                   ____________________________________
                                   JERRY L. SMITH, JUDGE




                                          -8-
CONCUR:



___________________________________
DAVID G. HAYES, JUDGE


___________________________________
LYNN W. BROWN, SPECIAL JUDGE




                              -9-
