      IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT JACKSON

                       JUNE 1997 SESSION       FILED
                                              September 15, 1997

                                               Cecil Crowson, Jr.
                                               Appellate C ourt Clerk
STATE OF TENNESSEE,           )
                              ) C.C.A. No. 02C01-9609-CR-00310
      Appellee,               )
                              ) Shelby County
V.                            )
                              ) Honorable Carolyn Wade Blackett, Judge
                              )
CECIL C. GROSE,               ) (First Degree Murder)
                              )
      Appellant.              )




FOR THE APPELLANT:               FOR THE APPELLEE:

William D. Massey                Charles W. Burson
Attorney at Law                  Attorney General & Reporter
3634 Austin Peay Highway
Memphis, TN 38125                Kathy Morante
                                 Deputy Attorney General
                                 450 James Robertson Parkway
                                 Nashville, TN 37243-0493

                                 William L. Gibbons
                                 District Attorney General

                                 James J. Challen
                                 Assistant District Attorney General
                                 Criminal Justice Complex
                                 201 Poplar Avenue, Suite 301
                                 Memphis, TN 38103




OPINION FILED: ___________________


AFFIRMED


PAUL G. SUMMERS,
Judge
                                OPINION


       The appellant, Cecil C. Grose, was convicted by a jury of first degree

murder. He was sentenced to life in prison. He appeals his conviction raising

the following issues for our review:



       1. Whether the state proved beyond a reasonable doubt that the
       death of the victim was the natural and probable result of the
       appellant's actions;

       2. Whether the evidence was sufficient to sustain his conviction;
       and

       3. Whether the trial court erred in failing to charge the jury on the
       defense of diminished capacity.

Upon review, we affirm the appellant's conviction.



                                       FACTS



       The appellant and the victim in this case, Jamie Forbes, were

romantically acquainted. However, prior to the homicide their relationship had

deteriorated. Forbes instituted stalking and harassment charges against the

appellant. The day before the scheduled hearing on these charges, the

appellant stated to a friend, William Carter, that he was going to kill Forbes. He

showed Carter the rifle he planned to use. The appellant explained that he was

going to have to do "a year anyway" on the stalking charges, so he figured that

he would kill Forbes and "they would just think he was crazy and he could get off

on insanity." The appellant took the rifle and left. Carter, convinced the

appellant was seriously planning to kill Forbes, drove to a phone and called the

Millington police. Unfortunately, the appellant found Forbes driving down the

road before the police could prevent the homicide. The appellant pulled up

behind her car and shot her with a high-powered rifle. The appellant sped away

in his vehicle. Forbes suffered tremendous trauma and was in the hospital for

several weeks. At the time of her release, she was a quadriplegic.




                                         -2-
           Approximately two weeks after Forbes' release from the hospital, her fever

became extremely high, and she was readmitted to the hospital. She quickly fell

into a coma. After suffering this condition for almost eight days, her family

decided that she should not be resuscitated in the event of cardiac or pulmonary

arrest. She died soon thereafter.



           The pathologist testified that the cause of death was gunshot wounds.

The pathologist further testified that there were two entry wounds, two exit

wounds and two re-entry wounds.



                                                                     I



           In his first issue the appellant contends that the trial court erred in

overruling his motion for judgment of acquittal. He claims the state failed to

prove he caused Forbes' death.1 Specifically, he argues that the victim's

immediate cause of death was the decision of her family to instruct medical

personnel not to resuscitate the victim in the event of cardiac or pulmonary

arrest. In support of this contention, the appellant relies primarily on State v.

Ruane, 912 S.W.2d 766 (Tenn. Crim. App. 1995). In Ruane, this Court held that

the decision of a competent victim to refuse medical care is not a supervening

cause that removes a criminal defendant's responsibility. Id. at 776. The

rationale behind this decision was the fact that a victim's conscious decision to

remove artificial life-support, while an act of intervention, only carries out the

natural result of the defendant's wrongful act. Id. The appellant argues that

because Forbes did not participate in the decision to refuse further medical

treatment, her family's action was a wholly unexpected and unforeseeable

supervening event which was the cause of her death.



           1
              The appellant also contends that the trial court erroneously instructed the jury on the issue of causation. In the
judge's charge to the jury she stated that the appellant could be convicted if the jury found that he had "unlawfully contributed
to the death of the deceased." In State v. Ruane, 912 S.W .2d 7 66 (T enn . Crim . App . 199 5) this C ourt ca ution ed lo we r courts
about using such langu age in a jury charge. W e stated that such language might tend to m islead and confuse the jury. Since
Ruane, we have again addressed this issue in State v. Bondurant, No. 01C01-9501-CC-00023 (Tenn. Crim. App. at Nashville,
May 24, 1996). In Bondurant, we acknowledged our disapproval of such an instruction, but found that while such an
instruc tion ba sed upo n T .P.I. Crim . 37.1 1 is no t favo red to day, it do es n ot rise to the lev el of co nstitution al de priva tion.


                                                                   -3-
             In order for this Court to sustain a criminal conviction for homicide, the

evidence must establish that the appellant's actions caused the harm. This is

generally established by showing that the victim's death was the natural and

probable result of the defendant's unlawful act.2 State v. Barnes, 703 S.W.2d

611 (Tenn. 1985). Our Supreme Court has established a general rule on the

issue of causation:

             One who unlawfully inflicts a dangerous wound upon another is
             held for the consequences flowing from such injury, whether the
             sequence be direct or through the operation of intermediate
             agencies dependent upon and arising out of the original cause.

Odeneal v. State, 157 S.W. 419, 421 (Tenn. 1913).



             Basically, the appellant asks this Court for largess because his actions

only put Forbes in a vegetative coma from which she could not exercise her right

to participate in her own medical decisions. We find that such a holding would

be illogical. Offenders failing to kill their victims immediately, merely leaving

them in a vegetative state, could escape punishment for homicide if the family

chooses to end the victim's suffering. In the instant case, we find that Forbes'

family acted as her agent in making the decision not to resuscitate her in the

event of cardiac or pulmonary arrest. In so finding, we are merely extending

Ruane. We hold that when a person, acting in the best interest of the victim,

issues a nonresuscitation order, and such order is accepted by the attending

medical personnel, that person is acting only as an agent for the victim and is not

a supervening cause that releases the offender from criminal responsibility. The

attending physicians and the family of the victim owe no duty to the accused to

treat the victim so as to mitigate his or her potential criminal liability.




             2
              As common sense would suggest, the perimeters of legal causation are more closely drawn when the intervening
cau se is a m atter o f coinc iden ce. Fo r exam ple, co incide nce is wh ere A sho ots a t B, B c han ges his rou te in an attem pt to
esca pe h arm and is struck by a ca r driven by C. T his w ould be a coinc iden ce a nd n ot su bjec t A to liab ility for hom icide. T here
is less reason to hold the de fendant liable for the bad result whe n he has m erely caused the victim to be at a particular place
at a p articular tim e, tha n w hen he h as b roug ht oth er ag enc ies into play in re spo nse to a d ang er or inju ry he d irectly inflicted.
Therefore, in order to warrant a conviction for homicide, the death must be the natural and probable consequence of the
un law ful a ct. If a n ind ep en de nt in terv en ing a ge ncy also con tribu tes t o th e v ictim 's de ath , the de fen da nt w ill still be h eld lia ble
so lon g as the inte rven ing a gen cy wa s a fore see able respo nse to his o r her initial inju ry.




                                                                            -4-
       The appellant shot his victim with a high-powered rifle. The state offered

proof at trial that the victim would have died within hours after the initial gunshot

wounds had she not been administered emergency medical treatment. The

decision to end Forbes' suffering and allow her to die with dignity was the natural

and probable result of the appellant's gunshot wounds. He began a chain of

events which in their natural and probable sequence caused the victim's death.

The decision to abstain from providing extraordinary or heroic medical

intervention merely allowed the natural and probable result of the appellant's

actions to come to fruition. The jury resolved the factual question of causation in

favor of the state. The record supports the jury's finding on the issue of

causation beyond a reasonable doubt. This issue is overruled.



                                           II



       The appellant next contends that the evidence adduced at trial was

insufficient as a matter of law to sustain his first degree murder conviction.

Specifically, he claims that the state failed to prove he possessed the requisite

mental state for first degree murder. In support of this claim, the appellant

argues that he presented proof that he had consumed alcohol and several

Valium tablets prior to the shooting. He claims that these actions impaired his

judgment and his ability to reason. We disagree.



       Great weight is afforded a verdict reached by a jury in a criminal trial. A

jury verdict approved by the trial judge accredits the state’s witnesses and

resolves all conflicts in favor of the state. State v. Williams, 657 S.W.2d 405,

410 (Tenn. 1983). On appeal, the state is entitled to the strongest legitimate

view of the evidence and all reasonable inferences which may be drawn

therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Moreover, a

guilty verdict removes the presumption of innocence which the appellant enjoyed

at trial and raises a presumption of guilt on appeal. State v. Grace, 493 S.W.2d



                                         -5-
474, 476 (Tenn. 1973). The appellant has the burden of overcoming this

presumption of guilt. Id.



       Where sufficiency of the evidence is challenged, the relevant question for

this 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 or crimes beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn. 1985); Tenn. R.

App. P. 13(e). The weight and credibility of the witnesses’ testimony are matters

entrusted exclusively to the jury as the triers of fact. State v. Sheffield, 676

S.W.2d 542, 547 (Tenn. 1984); Byrge v. State, 575 S.W.2d 292, 295 (Tenn.

Crim. App. 1978).



       The evidence was sufficient to sustain the appellant’s conviction. The

state presented evidence that prior to the shooting the appellant told a friend that

he intended to kill Forbes and then flee to Mexico. He showed his friend the

weapon he planned to use. The appellant did present evidence that he had

been drinking and using Valium and that his reasoning and judgment were

impaired. The jury, however, chose to discredit this testimony and to credit the

state's witnesses. A rational trier of fact could have found, and indeed did find,

that the appellant had committed first degree murder. This issue is overruled.



                                          III



       In his final issue the appellant contends that the trial judge erred in not

instructing the jury on the defense of diminished capacity. At trial, the appellant

presented evidence that his cognitive abilities were impaired due to temporal

lobe syndrome. Also, he presented evidence that he had ingested alcohol and

Valium prior to the shooting. Therefore, he argues that the trial court erred in




                                         -6-
refusing to instruct the jury that these conditions could have diminished his

capacity to form the necessary mental intent to commit first degree murder.



       In support of his assertion the appellant relies primarily upon State v.

Phipps, 883 S.W.2d 138 (Tenn. Crim. App. 1994). We find the appellant's

interpretation of Phipps misguided. In Phipps, the defendant contended he was

suffering from post-traumatic stress disorder and major depression. Based upon

his condition, he attempted to defend against a first degree murder charge. He

requested that the jury be instructed that it could consider his mental condition in

determining whether or not he possessed the necessary mental intent to commit

first degree murder. The trial judge refused to give his requested instruction.

However, he did instruct the jury that post-traumatic stress disorder and major

depression were not defenses to a criminal charge. This Court reversed the

defendant's conviction holding that this jury instruction created the impression

that the jury could not consider the mental conditions of the defendant in

determining whether or not he possessed the requisite mental intent for first

degree murder.



       It is well settled that diminished capacity is not a defense capable of

excusing or defeating a criminal charge in Tennessee. Both the state and the

appellant concede this point. Diminished capacity can, however, be introduced

to lessen an offense when it serves to negate mens rea. Phipps, 883 S.W.2d at

148. Evidence of an accused's mental state, at the time of the commission of

the crime, is admissible to negate elements of specific intent, including

premeditation and deliberation in a first degree murder case. Id. at 149.



       The appellant argues that the trial judge was under a duty to instruct the

jury that the appellant's diminished capacity could be considered in determining




                                         -7-
whether he was capable of forming the necessary mental intent for first degree

murder. We disagree. The appellant was entitled to introduce evidence of his

diminished mental abilities. He did this through both expert and nonexpert

witnesses. The jury was instructed on the proper mens rea necessary to find the

appellant guilty of first degree murder. In making this determination the jury

could and should have considered the appellant's evidence concerning his

inability to form the necessary mens rea. The jury apparently discredited this

evidence and found that the appellant possessed the requisite mens rea for first

degree murder. This issue is overruled.



AFFIRMED.




                                                __________________________

                                        -8-
                                     PAUL G. SUMMERS, Judge


CONCUR:




____________________________
DAVID H. WELLES, Judge




____________________________
JOE G. RILEY, Judge




                               -9-
