                     IN THE SUPREME COURT OF TENNESSEE

                                AT JACKSON



                                                           FILED
                                          FOR PUBLICATION
                                                        March 22, 1999
                                         Filed: March 22, 1999
STATE OF TENNESSEE,                )                  Cecil Crowson, Jr.
                                   )                 Appellate Court Clerk
      Appellee,                    )
                                   )         SHELBY CRIMINAL
                                   )
                                   )
Vs.                                )   HON. W. FRED AXLEY, JUDGE
                                   )
                                   )
                                   )
RICHARD MADKINS,                   )    No. 02-S-01-9805-CR-00046
                                   )
      Appellant.                   )




For the Appellant:                     For Appellee:

Richard Madkins, Pro Se                John Knox Walkup
TDOC # 107546                          Attorney General & Reporter
C.C.A.-South Central
 Correctional Center                   Michael E. Moore
P. O. Box 279                          Solicitor General
Clifton, Tennessee
                                       Elizabeth T. Ryan
                                       Assistant Attorney General
                                       Nashville, Tennessee


                                       At Trial:

                                       John W. Pierotti
                                       District Attorney General

                                       Lee V. Coffee
                                       Terrell L. Harris
                                       Assistant District Attorneys General
                                       Memphis, Tennessee




                              OPINION


AFFIRMED AS MODIFIED                                ANDERSON, C.J
       We granted this appeal to resolve a single issue: whether the defendant’s

conviction for attempted felony murder must be reversed and dismissed under our

decision in State v. Kimbrough, 924 S.W.2d 888 (Tenn. 1996), which held that the

offense did not exist under Tennessee statutory law.



       The record indicates that the defendant was convicted of especially aggravated

robbery and attempted felony murder and sentenced to 60 years for each conviction to

be served consecutively. The Court of Criminal Appeals affirmed the conviction and

sentence for especially aggravated robbery but concluded that the conviction for

attempted felony murder had been dismissed by the trial court because a judgment of

conviction was not in the record on appeal. The record on appeal was thereafter

supplemented with a copy of the judgment of conviction for attempted felony murder.



       We conclude, and the State concedes, that this case is controlled by Kimbrough.

The dismissal of the attempted felony murder conviction is therefore affirmed because

no such offense existed under Tennessee statutory law. The conviction for especially

aggravated robbery and the sentence of 60 years, however, are affirmed. Accordingly,

the judgment of the Court of Criminal Appeals is affirmed as modified, and this case is

remanded to the trial court.



                                    BACKGROUND

       We begin by briefly summarizing the evidence in the record. On September 27,

1993, the victim, who owned a liquor store, obtained $15,000 from the bank for the next

business day. She placed the money in a sack and locked the sack in the trunk of her

car.



       The victim went to Mall of Memphis to do some shopping. When she left the

mall and got into her car, the defendant, Richard Madkins, and a co-defendant, Jose

Holmes, approached the car and demanded money. The victim tried to drive away, but


                                           -2-
Holmes shot her through the car window, activating the car alarm. Holmes reached in

and removed the keys from the ignition. He went to the other side of the car, opened

the glove compartment, and pushed the button to open the trunk. Holmes took the

victim’s purse and the sack containing the $15,000 from the trunk.



      Holmes and Madkins fled from the scene on foot but were captured a short time

later. A large amount of money was found near Holmes. Several witnesses identified

both Holmes and Madkins and also provided descriptions that matched the clothes that

Madkins was wearing when apprehended.



      The jury convicted Madkins of especially aggravated robbery and attempted

felony murder. The trial court, finding Madkins to be a Range III persistent offender,

imposed a 60-year sentence for each offense, to run consecutively.



      On appeal, the Court of Criminal Appeals affirmed the conviction and sentence

for especially aggravated robbery but, upon finding that a judgment of conviction for

attempted felony murder was not in the record on appeal, concluded that the conviction

had been dismissed by the trial court. The record was later supplemented to include a

judgment of conviction for attempted felony murder. We granted this appeal.



                                       ANALYSIS

      Our analysis begins with our decision in Kimbrough. There, we noted that the

culpable mens rea for attempted crimes and for felony murder were intrinsically

different. The statutes governing attempted crimes stated:


      (a) A person commits criminal attempt who, acting with the kind of
      culpability otherwise required for the offense;

      (1) Intentionally engages in action or causes a result that would constitute
      an offense if the circumstances surrounding the conduct were as the
      person believes them to be;




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        (2) Acts with intent to cause a result that is an element of the offense, and
        believes the conduct will cause the result without further conduct on the
        person’s part; or

        (3) Acts with intent to complete a course of action or cause a result that
        would constitute the offense, under the circumstances surrounding the
        conduct as the person believes them to be, and the conduct constitutes a
        substantial step toward the commission of the offense.


Tenn. Code Ann. § 39-12-101 (1997) (emphasis added). Under Tennessee law, a

person acts intentionally with respect to the nature of the conduct or to a result of the

conduct when it is the person’s “conscious objective or desire to engage in the conduct

or cause the result.” Tenn. Code Ann. § 39-11-302(a) (1997).



        In contrast, the offense of felony murder in effect at the time of Madkins’ crime

required “[a] reckless killing of another committed in the perpetration of, or attempt to

perpetrate any first degree murder, arson, rape, robbery, burglary, theft, kidnapping or

aircraft piracy.” Tenn. Code Ann. § 39-13-202(a)(2) (1991). 1 Thus, recklessness as a

mens rea sufficed to support a felony murder conviction for a death occurring during

one of the enumerated felonies.



        After analyzing and contrasting these elements, we observed that a charge of

attempted felony murder is “inherently inconsistent, in that it requires that the actor have

intended to commit what is deemed an unintentional act.” Kimbrough, 924 S.W.2d at

890. Thus, like nearly every jurisdiction that has addressed the issue, we concluded

that the offense of attempted felony murder does not exist:


        [I]t is illogical that someone could intend to cause someone else’s death
        through negligence or even recklessness. While one may reasonably
        conclude that a defendant intentionally behaved in a reckless manner and
        may have intended to kill the victim, it does not make sense to say that a
        defendant intended to kill the victim by being reckless.

             We conclude that one cannot intend to accomplish the unintended.
        Consequently, the offense of attempted felony-murder does not exist in
        Tennessee.


        1
           As we observed in Kimbrough, the legislature amended the statute in 1995 to delete the mens
rea of recklessness. Te nn. Code Ann. § 39-13 -202(a)(2) (Supp. 1996).

                                                  -4-
Id. at 892. Accordingly, as the State concedes, Madkins’ conviction for attempted

felony murder is reversed and dismissed.



      Although not specifically addressed by the parties or the Court of Criminal

Appeals, we now turn to the question of whether the prosecution may proceed against

the defendant on other charges. The record shows that Madkins was indicted for

attempted premeditated murder and attempted felony murder and that both counts

were submitted to the jury. The instructions required the jury to begin by considering

attempted premeditated murder; if the jury found the defendant not guilty of attempted

premeditated murder, it was to acquit him of that offense and next consider attempted

felony murder. If the jury found Madkins not guilty of attempted felony murder, it was to

acquit him of that charge and consider the lesser offense of attempted second degree

murder.



      Given these sequential instructions, the jury’s conviction for attempted felony

murder was an implied acquittal of attempted premeditated murder. Schiro v. Farley,

510 U.S. 222, 236, 114 S. Ct. 783, 792, 127 L. Ed. 2d 47 (1994); Green v. United

States, 355 U.S. 184, 190, 78 S. Ct. 221, 225 (1957). Moreover, under the instructions,

the verdict of guilty as to attempted felony murder necessarily means that the jury did

not consider the charge of attempted second degree murder, which was properly

charged as a lesser offense to attempted premeditated murder. The prosecution is,

therefore, able to proceed on this charge upon remand to the trial court should it elect

to do so. See State v. Burns, 979 S.W.2d 276, 279 n.2 (Tenn. 1998).



                                     CONCLUSION

      We affirm the dismissal of the defendant’s conviction for attempted felony

murder for the reasons set forth above. The defendant’s conviction for especially

aggravated robbery and sentence of 60 years, however, are affirmed. Accordingly, the

judgment of the Court of Criminal Appeals is affirmed as modified, and this case is

                                           -5-
remanded to the trial court for further proceedings. Costs of the appeal are taxed to the

State.



                                          ____________________________________
                                          RILEY ANDERSON, CHIEF JUSTICE




CONCUR:
Drowota, Birch, Holder, and Barker, JJ.




                                           -6-
