             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                                            March 12, 2002 Session

                    STATE OF TENNESSEE v. JAMES NOBLE PAGE

                  Direct Appeal from the Criminal Court for Montgomery County
                           No. 40000192    John H. Gasaway, III, Judge



                          No. M2001-01853-CCA-R3-CD - Filed April 16, 2002


The juvenile defendant, fifteen-year-old James Noble Page, was tried as an adult for second degree
murder and convicted as charged by a Montgomery County jury. The specific issue in this appeal
is whether the trial court erred in instructing the jury on the “knowing” mens rea element of second
degree murder.1 The trial court instructed the jury that the “knowing” element of second degree
murder could be established by defendant’s awareness “(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.” (Emphasis added). The state concedes the instruction was error but contends it was
harmless. We conclude second degree murder is a result-of-conduct offense; allowing the jury to
convict based upon awareness of the nature of the conduct or circumstances surrounding the conduct
erroneously lessens the state’s burden of proof for this offense; the error in the jury charge was not
harmless under the facts of this case; and the conviction must be reversed and the case remanded for
a new trial.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed;
                                  Remanded for New Trial

JOE G. RILEY, J., delivered the opinion of the court, in which THOMAS T. WOODA LL and JOHN
EVERETT WILLIAMS, JJ., joined.

Michael J. Love, Clarksville, Tennessee (at trial and on appeal), and David L. Raybin, Nashville,
Tennessee (on appeal), for the appellant, James Noble Page.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
John Wesley Carney, Jr., District Attorney General; and James B. Crenshaw, Assistant District
Attorney General, for the appellee, State of Tennessee.



         1
          Defendant has assigned twelve issues for our review; however, all issues relate to the trial court’s definitions
of the mens rea requirem ents for ho micide s. Accordingly, we combine all issues into a sin gle issue for p urposes o f this
app eal.
                                              OPINION

         On November 13, 1999, the fifteen-year-old defendant struck the eighteen-year-old victim
in the head with a baseball bat after a verbal confrontation; the victim died as a result of this injury.
The defendant was transferred from Juvenile Court to the Criminal Court of Montgomery County
to be tried as an adult and was indicted for second degree murder. After a jury trial, the defendant
was convicted as charged and sentenced to fifteen years in the Department of Correction. This
appeal followed.


                                                FACTS

       Sufficiency of the evidence is not an issue in this appeal. Nevertheless, it is necessary that
we set forth certain trial evidence in order to place the challenged jury instruction in proper
perspective.

        On the evening of Saturday, November 13, 1999, the fifteen-year-old defendant and his
teenage friends, Brian Rader, David Smith, Kris Perrone, Manuel Pritzl, and Dennis Pritzl, met at
the Pritzls’ home in Clarksville. Rader testified the defendant was upset and “grumpy” when he
arrived. Rader stated the defendant told him he had argued with his mother and said he “felt like
getting into a fight.”

        An adult purchased eighteen cans of beer for the boys with the defendant’s money. The
defendant drank several beers before the group left in Rader’s truck to go to the bowling alley.
Dennis Pritzl testified the defendant told him he drank seven beers. Both Dennis and Manuel Pritzl
said the defendant had slurred speech.

        The defendant was riding in the front passenger seat of the truck when it passed the eighteen-
year-old victim, Chris Jones, who was walking with Pamela Hicks and her son, Tommy Hicks. The
victim was holding hands with Pamela Hicks, his girlfriend, and the victim was carrying a knife
inside his jacket.

         As the truck passed, the defendant yelled at the victim and his companions. Rader, who was
driving the truck, testified the defendant yelled, “Ooh! You’re ugly!” Dennis Pritzl and Kris Perrone
testified the defendant yelled, “Hey!” The victim then raised his middle finger to the truck in an
obscene gesture. At the defendant’s request, Rader turned the truck around and drove past the victim
again. As they passed the victim, the defendant extended a baseball bat out of the window, nearly
hitting the victim.

        Rader stopped the truck. The boys exited the parked truck and yelled at the victim and his
friends as they walked past. Tommy Hicks testified one of them asked the victim why he dropped
out of school. Other witnesses stated the defendant yelled, “Why did you flip us off?” The victim


                                                  -2-
and his friends did not respond, but the victim displayed a knife. The Pritzls stated the victim was
“flipping” or “twirling” the knife in his hand. Dennis Pritzl said he saw the knife disappear as the
victim walked past them. The victim and his companions continued walking.

         The defendant returned to the truck and got the baseball bat. Holding the bat, he crossed the
street and followed the victim, who continued walking away with his companions. The defendant
returned to the truck where he resumed his place in the passenger seat, holding the bat between his
legs. Rader stated the defendant asked him to turn around again because the defendant wanted to
hit the victim with the bat. Rader turned the truck around, and again they passed the three on the side
of the road. When the truck pulled into a driveway, the defendant exited the truck, still holding the
bat.

         The defendant followed the victim, Pamela Hicks, and Tommy Hicks, as they walked across
a field toward Golf Club Lane. Smith testified the defendant was holding the bat down at his side.
Rader and Manuel Pritzl testified the defendant was taunting the victim as he walked behind him by
asking, “Are you going to stab me?”

         Pamela Hicks testified the victim was holding her right hand with his left hand, and his other
hand was in his pants pocket. She and Tommy Hicks testified they were not holding a knife as they
walked across the field, nor was the victim. Witnesses testified the victim and his companions never
turned around to face the defendant, but instead continued walking with their backs to him. Manuel
Pritzl testified he heard the victim tell the defendant, “You better leave me alone if you know what
is good for you.” David Smith and Dennis Pritzl stated they never saw the three behave aggressively
toward the defendant or threaten him.

         Pamela Hicks said the defendant approached the victim from behind and struck him over the
head with the baseball bat. Witnesses testified they heard a loud sound as the bat struck the victim’s
head. Pamela Hicks stated she felt the victim’s hand flex and drop her hand. She and Tommy Hicks
said the victim took four or five steps before falling into the street. David Spears, who stopped to
assist the injured victim, found a knife in the left breast pocket of the victim’s jacket.

         Immediately after the defendant struck the victim, he ran to the truck, threw the bat into the
bed, and jumped in, yelling “Go!Go!Go!” just before the truck sped away. The group of boys
returned to the Pritzl residence where the defendant used the bat to re-enact how he struck the victim.
Dennis Pritzl testified the defendant said he thought the victim was going to turn and stab him, but
the defendant’s statement was inconsistent with his own observations during the incident. Manuel
Pritzl testified the defendant did not think he had hit the victim hard.

       The following Monday, the defendant and his friends were surprised to learn the victim had
died. Dennis Pritzl stated the defendant said he was scared and did not know he hit the victim that
hard. Manuel Pritzl testified the defendant said, “I’m getting sick,” after learning of the victim’s
death. Dennis Pritzl, Manuel Pritzl, and Kris Perrone stated there was an agreement to say none of



                                                 -3-
them was involved in the incident. The defendant was present for a short time while Manuel Pritzl
burned the baseball bat.

       Medical examiner Dr. Bruce Levy testified the victim had a large laceration on the back of
his head, a skull fracture, and brain injury, all of which were caused by the same blow. Dr. Levy
opined a full swing would have been necessary to cause the skull fracture, and the blow came from
behind the victim. These injuries led to the victim’s death.

        The defendant testified that on the day of the victim’s death, he had argued with his mother
and was having problems at school. That evening, he went to the Pritzl residence and met his
friends. He stated he drank eleven beers over a period of one and one-half hours and had not eaten
a meal that day. According to the defendant, he was drunk when the group left in Brian Rader’s
truck to go to the bowling alley.

        He testified he yelled “Hey!” out the window as the truck passed the three people walking
on the side of the road because he thought he heard someone yell from the back of the truck. The
defendant testified he asked the three people why they made the obscene gesture, but they did not
respond. He stated he saw the victim “flipping” a knife. The defendant said he asked Rader for a
baseball bat, and Rader handed one to him. He admitted he stuck the bat out of the window as they
passed the victim, and he told Rader to turn the truck around.

        The defendant testified he exited the truck and followed about ten feet behind the victim and
his companions without saying anything. He said he carried the bat to “even the score” because the
victim had a knife. The defendant said he asked the victim if he was going to stab him, and the
victim replied, “Leave me alone before you get hurt.”

         According to the defendant, the victim and his companions slowed their pace as they
approached Golf Club Lane after walking through the field, which allowed him to get within three
feet of them. He said the victim had a knife clinched in his hand. The defendant stated he became
scared when the victim started to turn toward him. The defendant testified he sped up to get closer
to the victim before he swung the bat. He also said he did not intend to hit the victim in the head and
did not know where he had struck him.

        The defendant said he did not believe there was going to be a confrontation between him and
the victim. He testified he had been intimidated after seeing the victim’s knife and wanted to
intimate the victim in return and “back him down.” He testified he could not believe the victim had
died.

        Forensic psychiatrist Dr. Keith Caruso testified for the defense that, due to defendant’s
intoxication, the defendant lacked the substantial capacity to form the necessary mental state to
knowingly kill the victim. Dr. Caruso stated the defendant’s intent was to intimidate the victim
rather than to attack him. The psychiatrist acknowledged the defendant knew he had a bat in his



                                                 -4-
hand and knew he was swinging it at the victim. He opined the defendant did not intend to kill or
hurt the victim, but did intend to strike the victim.


                                       FINAL ARGUMENT

        In final argument defense counsel conceded it was undisputed that the defendant hit the
victim with the bat, thereby causing his death. Counsel further conceded the evidence did not justify
self-defense. Instead, counsel argued the defendant was intoxicated, “didn’t appreciate his conduct,”
had “no understanding of how wrong it was . . . how severe it was at that time,” and did not think
he hit the victim “that hard.” Counsel suggested the defendant committed criminally negligent
homicide.

        The state answered in its rebuttal argument that the defendant acted “knowingly” as that term
would be defined in the instructions to be given by the trial court. Specifically, the state argued
“knowingly” included “[acting] with an awareness that his conduct is of a particular nature.” The
state further argued “knowingly” could also be proven by showing “a person acts with an awareness
that a particular circumstance exists, or that the conduct was reasonably certain to cause the result.”
The essence of the state’s argument was that the defendant acted knowingly since he was aware of
his acts and surrounding circumstances.


                                         JURY CHARGE

       The trial court charged the indicted offense of second degree murder and the lesser-included
offenses of voluntary manslaughter, reckless homicide and criminally negligent homicide. The jury
charge on second degree murder mirrored the state’s argument as to its “knowing” mens rea
requirement and was as follows:

               Any person who commits second degree murder is guilty of a crime.

              For you to find the defendant guilty of this offense, the state must have
       proven beyond a reasonable doubt the existence of the following essential elements:

       (1) that the defendant unlawfully killed the alleged victim; and
       (2) that the defendant acted knowingly.

               A person acts “knowingly” if that person acts with an awareness:

       (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.



                                                 -5-
               The requirement of “knowingly” is also established if it is shown that the
        defendant acted intentionally.

                A person acts “intentionally” when that person acts with a conscious objective
        or desire either:

        (1) to cause a particular result; or
        (2) to engage in particular conduct.

(Emphasis added).

        In defining “intentionally or knowingly” as an element of voluntary manslaughter, the
instructions referred to the previously-given definitions of those terms. The charge on the “reckless”
element of reckless homicide referred to the unjustifiable risk either: “(1) that a particular result will
occur; or (2) that a particular circumstance exists.” (Emphasis added). The charge on the “criminal
negligence” mens rea of criminally negligent homicide referred to “the circumstances surrounding
that person’s conduct or the result of that conduct. . . .” (Emphasis added).

        As stated, the jury convicted the defendant of second degree murder.


                                              ANALYSIS

        The defendant contends the trial court’s jury instruction defining the “knowing” mens rea
element of second degree murder was erroneous. He argues (1) the definition was in the disjunctive
and authorized a conviction based only upon an awareness of the nature of the conduct or that a
particular circumstance exists; (2) the instruction did not require a finding that the defendant must
be aware that his conduct was reasonably certain to cause death; (3) the instruction erroneously
lessened the state’s burden of proof; and (4) the error was not harmless. The state concedes on
appeal that the jury instruction was erroneous; however, it contends the error was harmless. We
must agree with the defendant in all respects.

A. General Discussion of Mens Rea

         There are four culpable mental states in Tennessee: intentional, knowing, reckless and
criminal negligence. Tenn. Code Ann. § 39-11-302. The culpable mental state is generally set forth
in the statute defining the offense. See, e.g., Tenn. Code Ann. § 39-13-210(a)(1) (specifically stating
the culpable mental state of a “knowing killing” in the definition for second degree murder)
(emphasis added)). If a culpable mental state is not specified, then intentional, knowing or reckless
will generally suffice. Tenn. Code Ann. § 39-11-301(c); see, e.g., Tenn. Code Ann. § 39-13-
503(a)(1) (defining rape as unlawful sexual penetration of a victim with force or coercion but not
specifying a mental state; thus, making intentional, knowing, or reckless applicable).



                                                   -6-
         Each of these mental states is defined with reference to two or three of the following possible
conduct elements: (1) nature of defendant’s conduct, (2) circumstances surrounding the defendant’s
conduct, and (3) result of the defendant’s conduct. Tenn. Code Ann. § 39-11-302. “Intentional” can
refer to the nature of defendant’s conduct or the result of defendant’s conduct. Tenn. Code Ann. §
39-11-302(a). “Knowing” can refer to all three of the conduct elements. Id. at (b). “Reckless” can
refer to the circumstances surrounding defendant’s conduct or the result of defendant’s conduct. Id.
at (c). “Criminal negligence” can refer to the circumstances surrounding defendant’s conduct or the
result of defendant’s conduct. Id. at (d).

        In addition, our code contemplates that the applicable conduct element (nature of the conduct,
circumstances surrounding the conduct, and result of the conduct) for a given culpable mental state
(intentional, knowing, reckless and criminal negligence) also depends upon the offense. See Tenn.
Code Ann. § 39-11-201(a)(1), (2) (requiring, in order to convict, not only proof of the culpable
mental state, but also proof of “the conduct, circumstances surrounding the conduct, or a result of
the conduct described in the definition of the offense”) (emphasis added)). Thus, although the
definition of “intentional” includes both nature of the conduct or result of the conduct, one may not
be applicable to a given offense. See generally, State v. Ducker, 27 S.W.3d 889, 896 (Tenn. 2000).

B. Mens Rea of Second Degree Murder

        We first note that second degree murder can be committed by either a “knowing killing of
another,” Tenn. Code Ann. § 39-13-210(a)(1), or by the killing of another which results from the
unlawful distribution of certain drugs, id. at (2). The killing relating to the distribution of drugs
portion of the statute does not specify a particular culpable mental state. However, a “knowing
killing” obviously requires the culpable mental state of “knowing.”

        We confine our analysis in this opinion to that form of second degree murder specifying the
“knowing killing of another.” Tenn. Code Ann. § 39-13-201(a)(1). “Knowing” is defined by statute
as follows:

                        “Knowing” refers to a person who 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.

Tenn. Code Ann. §§ 39-11-106(a)(20), -302(b). However, a knowing second degree murder is
strictly a “result-of-conduct” offense. See Ducker, 27 S.W.3d at 896. The result of the conduct is
the only conduct element of the offense; the “nature of the conduct” that causes death is
inconsequential. Id.




                                                  -7-
        In fairness to the trial court, it was far from clear at the time of trial how the “knowing” mens
rea for second degree murder should be defined in jury instructions.1 The trial court’s charge on the
definition of “knowing” was verbatim from T.P.I. - CRIM 2.09 (5th ed. 2000). In Ducker, decided
only months prior to the trial of this case, our supreme court did state that second degree murder was
a “result-of-conduct” offense. 27 S.W.3d at 896. However, Ducker was not a second degree murder
case; nor did Ducker discuss jury charges for result-of-conduct offenses. The actual holding in
Ducker was that aggravated child abuse is a nature-of-conduct offense, rather than a result-of-
conduct offense. Id. at 897. The first case to actually find reversible error in the failure to charge
second degree murder as strictly a result-of-conduct offense was State v. Keith T. Dupree, No.
W1999-01019-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 65, at *11 (Tenn. Crim. App. Jan. 30,
2001, at Jackson), no perm to app. filed; however, Dupree was filed several days after the trial of this
case. Furthermore, the trial court in Dupree charged only nature of the conduct and circumstances
surrounding the conduct; it omitted entirely the result of the conduct element.

         Regardless, as the state concedes, it is now established that a knowing second degree murder
is strictly a result-of-conduct offense. Ducker, 27 S.W.3d at 896. A jury instruction that allows a
jury to convict on second degree murder based only upon awareness of the nature of the conduct or
circumstances surrounding the conduct improperly lessens the state’s burden of proof. For second
degree murder, a defendant must be aware that his or her conduct is reasonably certain to cause
death. See Tenn. Code Ann. § 39-11-302(b); Dupree, supra.

C. Suggested Jury Instructions

         A correct jury instruction for knowing second degree murder in this case would be as follows:

                          Any person who commits second degree murder is guilty of
                   a crime.

                          For you to find the defendant guilty of this offense, the state
                   must have proven beyond a reasonable doubt the existence of the
                   following essential elements:

                             (1) that the defendant unlawfully killed the alleged
                             victim; and

                             (2) that the defendant acted knowingly.



         1
           W e also note this issue was not raised during trial, but rather was raised for the first time in the motion for new
trial. Nevertheless, an erroneous or inaccurate jury charge, as opposed to an incomplete jury charge, is not waived by
the failure to make a contemporaneous objection; it may be raised for the first time in the m otion for new trial. State
v. Lynn, 924 S.W .2d 8 92, 8 99 (Ten n. 19 96); State v. Eldridge, 951 S.W.2d 775, 779 (Tenn. Crim. App. 1997); Tenn.
R. Crim. P. 30(b).

                                                             -8-
                           "Knowingly" means that a person acts with an awareness
                   that [his] [her] conduct is reasonably certain to cause the death of
                   the alleged victim.

                         The requirement of "knowingly" is also established if it is
                   shown that the defendant acted “intentionally.”

                            "Intentionally" means that a person acts intentionally when
                   it is the person's conscious objective or desire to cause the death of
                   the alleged victim.

         In addition to knowing second degree murder, we also believe that voluntary manslaughter,
reckless homicide and criminally negligent homicide are result-of-conduct offenses. Accordingly,
the trial court erred by referring to the prior definitions of “knowing” and “intentional” in defining
these offenses since the prior definitions included the nature of the conduct and circumstances
surrounding the conduct. Although this is moot as it relates to these lesser-included offenses, we
note the error for guidance upon retrial.

       For further guidance to the bench and bar, we are attaching as an Appendix what we believe
to be proper jury charges on premeditated first degree murder,2 knowing second degree murder,
voluntary manslaughter, reckless homicide and criminally negligent homicide.

D. Harmless Error

        We must now determine whether the erroneous jury instruction was harmless, as argued by
the state. We first examine the appropriate standard of review.

                                              (1) Standard of Review

        A defendant has the constitutional right to complete and accurate jury instructions on the law;
the failure to do so deprives a defendant of the constitutional right to a jury trial. State v. Teel, 793
S.W.2d 236, 249 (Tenn. 1990). The omission in jury instructions of an element of the offense is
subject to constitutional harmless error analysis; namely, whether the state can prove harmless error
beyond a reasonable doubt. State v. Walker, 29 S.W.3d 885, 893 (Tenn. Crim. App. 1999). We
conclude an erroneous jury instruction, which misstates the applicable conduct element of an offense
and lessens the state’s burden of proof, is likewise subject to constitutional harmless error analysis.


         2
           Premeditated first degree murder requires not only that the killing be “intentional,” but also that the defendant
act with a “prem editated” mental state. Tenn. Co de An n. § 39-13-2 02(a)(1) (1997). “Premeditation” is defined by
statute. Id. at (d). W e con clude the “intentional” culp able mental state of premeditated first degree mu rder relates to
the result of the conduct, just as the “knowing” culpable mental state of second degree murder relates to the result of
the conduct. Accordingly, our suggested jury charge for premeditated first degree murder deviates from T .P.I. - CRIM
2.08 and 7 .01(b) (5 th ed. 2000 ) by deletin g the reference to the n ature of the defenda nt’s co ndu ct.

                                                            -9-
                                        (2) State’s Argument

        The state contends that defendant’s reliance upon self-defense renders the error harmless
beyond a reasonable doubt. Even if the defendant relied upon self-defense, we fail to see how this
would necessarily be determinative of this issue. Regardless, defense counsel in final argument
conceded the killing was not justified and, as to self-defense, stated, “I’m not going to pull your leg.
I don’t think there’s enough there.” Accordingly, we reject the state’s contention.

                                            (3) Trial Issues

        We recognize that in many, if not most, homicide trials, the mens rea jury instructions
utilized in this case would be harmless error. If a victim is shot at point blank range with a twelve
gauge shotgun while asleep, and the defense is the defendant was not the shooter, then the erroneous
instruction would likely be harmless. In such a situation, mens rea is not a disputed issue at trial.
Similarly, if causation is not disputed in a homicide trial, the failure to instruct the jury on causation
may well be harmless. See State v. Farner, 66 S.W.3d 188, 206 (Tenn. 2001).

       Here, the mens rea of the defendant was indeed the disputed issue at trial. Since the
defendant conceded an unlawful and unjustified killing, the only real issue at trial was the degree of
homicide committed by the defendant. The defense theory was that the defendant was intoxicated,
did not intend to hit the victim in the head, and did not intend to hit the victim “that hard.” The
essence of the defense theory was that this was not a “knowing killing,” not a second degree murder,
but was a criminally negligent homicide.

        The state countered in its argument by specifically and improperly relying upon the nature
of the conduct and circumstances surrounding the conduct, and contended it was not required to
prove the defendant’s awareness that his conduct was reasonably certain to cause death. The state’s
argument was subsequently, and erroneously, fully justified by the jury charge.

        Since the only real issue at trial was the degree of homicide committed, which in turn rested
upon the mens rea and appropriate conduct element, we are unable to conclude the erroneous jury
instruction was harmless beyond a reasonable doubt. Accordingly, we must reverse and remand for
a new trial.


                                           CONCLUSION

        This court fully realizes the complexity and practical problems for the bench and bar in
ascertaining, arguing and charging the proper mens rea and its applicable conduct elements for
criminal offenses. It further appears to this panel that comprehensive revisions of pattern jury




                                                  -10-
instructions may well be necessary.3 Nevertheless, we believe the Tennessee statutes, modeled in
large part after the American Law Institute’s Model Penal Code, must be followed and demand this
result. See Model Penal Code § 2.02(2) (defining the culpable mental states with reference to nature
of the conduct, circumstances surrounding the conduct, and result of the conduct).

        Our criminal code is similar to the code adopted in Texas. See Tex. Penal Code §§ 6.02, -.03
(2002) (containing mens rea and conduct elements similar to those in Tennessee). Texas has
confronted similar problems regarding jury instructions on nature of the conduct, circumstances
surrounding the conduct, and result of the conduct. See Cook v. State, 884 S.W.2d 485, 490 (Tex.
Crim. App. 1994) (finding error in jury charge on murder and voluntary manslaughter, both of which
are result-of-conduct offenses, which did not limit “intentionally and knowingly” to result only
language and remanding to Court of Appeals for harmless error analysis); Barcenes v. State, 940
S.W.2d 739, 743-44 (Tex. App. 1997) (holding defendant charged with murder, a result-of-conduct
offense, is entitled to have definitions of “intentionally and knowingly” limited to result only
language, but finding the error harmless). It appears we, like Texas, are unable to avoid the issue.

         We reverse and remand for a new trial.




                                                                  ___________________________________
                                                                  JOE G. RILEY, JUDGE




         3
           W e recognize that jury instructions on offen ses oth er tha n h om ic id es m ay need revisions. We caution the
ben ch an d bar that this opin ion and su gge sted jury instructions on ly address certain hom icide o ffenses.

                                                          -11-
                                             APPENDIX

                                 SUGGESTED JURY CHARGES

                FIRST DEGREE MURDER (PREMEDITATED KILLING)
              (FOR OFFENSES COMMITTED ON OR AFTER JULY 1, 1995)

        Any person who commits the offense of first degree murder is guilty of a crime.

       For you to find the defendant guilty of this offense, the state must have proven beyond a
reasonable doubt the existence of the following essential elements:

        (1) that the defendant unlawfully killed the alleged victim; and

        (2) that the defendant acted intentionally. A person acts intentionally when it is the person's
conscious objective or desire to cause the death of the alleged victim; [A defendant’s conscious
objective need not be to kill a specific victim. If you find beyond a reasonable doubt that the
defendant intended to cause the death of a person, and that the defendant did so with premeditation,
then the killing of another, even if not the intended victim, would be first degree murder;] and

        (3) that the killing was premeditated.

        A premeditated act is one done after the exercise of reflection and judgment. Premeditation
means that the intent to kill must have been formed prior to the act itself. It is not necessary that the
purpose to kill preexist in the mind of the accused for any definite period of time. The mental state
of the accused at the time [he] [she] allegedly decided to kill must be carefully considered in order
to determine whether the accused was sufficiently free from excitement and passion as to be capable
of premeditation. If the design to kill was formed with premeditation, it is immaterial that the
accused may have been in a state of passion or excitement when the design was carried into effect.
Furthermore, premeditation can be found if the decision to kill is first formed during the heat of
passion, but the accused commits the act after the passion has subsided.

         If you find from the proof beyond a reasonable doubt that the defendant is guilty of murder
in the first degree, you will so report and your verdict in that event shall be "We, the Jury, find the
defendant guilty of murder in the first degree".

         [If you so find, then it shall be your duty after a separate sentencing hearing to determine
whether the defendant will be sentenced to death, life imprisonment without the possibility of parole,
or life in prison, but you will not consider punishment for this offense at this time.]




                                                  -12-
                                SECOND DEGREE MURDER

                           (KNOWING KILLING OF ANOTHER)

       Any person who commits second degree murder is guilty of a crime.

       For you to find the defendant guilty of this offense, the state must have proven beyond a
reasonable doubt the existence of the following essential elements:

       (1) that the defendant unlawfully killed the alleged victim; and

       (2) that the defendant acted knowingly.

       "Knowingly" means that a person acts with an awareness that [his] [her] conduct is
reasonably certain to cause the death of the alleged victim.

        The requirement of "knowingly" is also established if it is shown that the defendant acted
“intentionally.”

        "Intentionally" means that a person acts intentionally when it is the person's conscious
objective or desire to cause the death of the alleged victim.


                             VOLUNTARY MANSLAUGHTER

       Any person who commits voluntary manslaughter is guilty of a crime.

       For you to find the defendant guilty of this offense, the state must have proven beyond a
reasonable doubt the existence of the following elements:

       (1) that the defendant unlawfully killed the alleged victim; and

       (2) that the defendant acted intentionally or knowingly; and

       (3) that the killing resulted from a state of passion produced by adequate provocation
       sufficient to lead a reasonable person to act in an irrational manner.




                                                 -13-
       The distinction between voluntary manslaughter and second degree murder is that voluntary
manslaughter requires that the killing result from a state of passion produced by adequate
provocation sufficient to lead a reasonable person to act in an irrational manner.

        "Intentionally" means that a person acts intentionally when it is the person's conscious
objective or desire to cause the death of the alleged victim.

       "Knowingly" means that a person acts with an awareness that [his] [her] conduct is
reasonably certain to cause the death of the alleged victim.


                                    RECKLESS HOMICIDE

       Any person who commits the offense of reckless homicide is guilty of a crime.

       For you to find the defendant guilty of this offense, the state must have proven beyond a
reasonable doubt the existence of the following essential elements:

       (1) that the defendant killed the alleged victim; and

       (2) that the defendant acted recklessly.

        "Recklessly" means that a person acts recklessly when the person is aware of, but
consciously disregards, a substantial and unjustifiable risk that the alleged victim will be killed.
The risk must be of such a nature and degree that its disregard constitutes a gross deviation from
the standard of care that an ordinary person would exercise under all the circumstances as viewed
from the accused person's standpoint.

        The requirement of "recklessly" is also established if it is shown that the defendant acted
intentionally or knowingly.

        "Intentionally" means that a person acts intentionally when it is the person's conscious
objective or desire to cause the death of the alleged victim.

       "Knowingly" means that a person acts with an awareness that [his] [her] conduct is
reasonably certain to cause the death of the alleged victim.




                                                  -14-
                               CRIMINALLY NEGLIGENT HOMICIDE

       Any person who commits criminally negligent homicide is guilty of a crime.

       For you to find the defendant guilty of this offense, the state must have proven beyond a
reasonable doubt the existence of the following essential elements:

               (1) that the defendant's conduct resulted in the death of the alleged
               victim; and

               (2) that the defendant acted with criminal negligence.

       "Criminal negligence" means that a person acts with criminal negligence when the person
ought to be aware of a substantial and unjustifiable risk that the alleged victim will be killed. The
risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation
from the standard of care that an ordinary person would exercise under all the circumstances as
viewed from the accused person's standpoint.

        The requirement of criminal negligence is also established if it is shown that the defendant
acted intentionally, knowingly or recklessly.

        "Intentionally" means that a person acts intentionally when it is the person's conscious
objective or desire to cause the death of the alleged victim.

       "Knowingly" means that a person acts with an awareness that [his] [her] conduct is
reasonably certain to cause the death of the alleged victim.

        "Recklessly" means that a person acts recklessly when the person is aware of, but consciously
disregards, a substantial and unjustifiable risk that the alleged victim will be killed. The risk must
be of such a nature and degree that its disregard constitutes a gross deviation from the standard of
care that an ordinary person would exercise under all the circumstances as viewed from the accused
person's standpoint.




                                                -15-
