State of Tennessee v. Corey Allen Harris

03/22/2022

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

November 3, 2021 Session

STATE OF TENNESSEE v. COREY ALLEN HARRIS

Appeal from the Circuit Court for Madison County

No. 20-97 Donald H. Allen, Judge

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No. W2021-00030-CCA-R3-CD

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The Defendant, Corey Allen Harris, was convicted after a jury trial of attempted second

degree murder, aggravated assault, and employment of a firearm during the commission

of a dangerous felony, and he received an effective eighteen-year sentence. The

Defendant filed a motion for a new trial asserting that the evidence was insufficient and

that the prosecutor’s argument was so improper as to constitute plain error. On appeal,

the Defendant renews the challenges to the sufficiency of the evidence and the

prosecutor’s closing argument, and he asks for relief based on the omission from the jury

instructions of the statutory definition of attempt. Because the jury was not properly

instructed on the elements of the offense of attempted second degree murder, we reverse

the convictions for attempted second degree murder and employment of a firearm during

the commission of attempted second degree murder, and we remand for further

proceedings. The aggravated assault conviction is affirmed.

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

Part; Reversed in Part; Case Remanded

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which NORMA

MCGEE OGLE and TIMOTHY L. EASTER, JJ., joined.

Jessica F. Butler (on appeal), Assistant Public Defender – Appellate Division; Jeremy

Epperson, District Public Defender; and Gregory D. Gookin (at trial), Assistant District

Public Defender, for the appellant, Corey Allen Harris.

Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Senior

Assistant Attorney General; Jody S. Pickens, District Attorney General; and Bradley

Champine, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL AND PROCEDURAL HISTORY

The Defendant went to the fast-food restaurant where the victim, Mr. Darvius

Chatman, worked, and he fired two shots at the victim, striking him once in the back in a

glancing blow. The victim and his wife, Ms. Brandy Chatman, identified the Defendant

as the shooter, and the Defendant gave a statement acknowledging he had fired shots but

denying he intended to hit the victim. The Defendant was charged with attempted first

degree murder committed by taking the substantial step of shooting at the victim,

aggravated assault by causing bodily injury through the use of a firearm, and employment

of a firearm during the commission of attempted first degree murder. At trial, the

Defendant essentially conceded the aggravated assault charge but argued that he was not

attempting to harm the victim and that the shooting was in response to an assault the

victim had committed on the victim’s ex-girlfriend.

At trial, the victim testified that at the time of the shooting, he was married but that

his wife was aware he was also in a relationship with Ms. Shanda Pirtle. The victim

testified that he had ended his relationship with Ms. Pirtle approximately a week before

the shooting and that Ms. Pirtle was unhappy and threatened him. Ms. Pirtle worked with

the Defendant, and the Defendant and Ms. Pirtle had come to the restaurant where the

victim worked two to three times together. During these visits, the victim would take a

break from work and speak to them outside. The victim acknowledged that he had an

argument with Ms. Pirtle prior to the shooting, but he denied assaulting her.

Ms. Chatman confirmed that she was aware of the victim’s relationship with Ms.

Pirtle, but she stated that he had ended his relationship with Ms. Pirtle on the day before

the shooting. Ms. Chatman testified that around 10:00 p.m. on October 16, 2019, she

went to the restaurant where the victim worked to wait for him to get off work at 11:00

p.m. Ms. Chatman remained in her car, and the victim came to the car and smoked a

cigarette with her before returning to work.

At approximately 10:39 p.m., Ms. Chatman observed the Defendant arrive in the

parking lot. He parked near her and exited the car to lean against the building and smoke

a cigarette. Ms. Chatman stated that it was dark outside and that she could not tell if

there was anyone else in the Defendant’s vehicle. However, her car lights were on, and

she could see the Defendant’s face as he smoked. She testified that he looked nervous

because he was “smoking a cigarette really hard.”

The victim testified that he exited the building around 11:00 p.m. to take the trash

to the dumpster and that he saw the Defendant leaning against the wall. The victim said

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that it was dark outside but that there was light in the parking lot. The dumpster was

surrounded by rock landscaping, and when the victim was putting the trash into the

dumpster, he heard a noise from the rocks moving and saw that the Defendant had

followed him. He told the Defendant that the restaurant was closed, and the Defendant

responded, “[Y]eah, and then the ‘N’ word.” The victim testified that the Defendant then

immediately lifted the gun. The victim saw the “flame” from the gun firing and turned.

He felt a burning in his back, heard another shot, and felt something “shoo” past his ear.

The victim fled into the restaurant.

The victim testified he did not threaten the Defendant or Ms. Pirtle and that he was

not armed. He was not sure if the Defendant had a gun while leaning on the building, and

he testified that the Defendant was next to the Defendant’s car and could possibly have

retrieved a gun from the car prior to following him to the dumpster.

Ms. Chatman witnessed the shooting from her car. She testified that when the

victim went to the dumpster, the Defendant had returned to his vehicle. She saw the

Defendant reverse the vehicle, drive to the dumpster, and park. Ms. Chatman saw

someone exit the vehicle and chase the victim, and she saw flashes from the gunfire and

heard the shots. She could not see the shooter clearly, but the shooter returned to the car

and sped off. Ms. Chatman thought the victim had been shot and began to circle the

restaurant trying to find him.

Ms. Fontasia Fingers was the evening manager of the restaurant, and she was

inside “counting the safe” and wearing a headset when the shooting occurred. She heard

a beep on the headset which she believed was from someone coming around the building,

then she heard the victim enter through the front door. Through video surveillance, she

saw the victim jump over the counter. The victim told Ms. Fingers that he had been shot.

Ms. Fingers called 911 and locked the doors, and emergency personnel removed the

victim from the scene by helicopter. She testified she did not see blood but saw a hole in

the red shirt the victim was wearing. Ms. Fingers stated that the victim returned to work

about a week and a half after the shooting.

Officer Zac White of the Jackson Police Department (“JPD”) responded and

observed a gunshot wound to the victim’s back. He collected the victim’s shirt and hat.

He testified that there was some blood on the shirt but that there was not a large amount

of blood. The victim told Officer White that the Defendant had “mumbled” something

but that he could not understand what the Defendant said. The victim recognized the

Defendant but could not remember his name. He told Officer White that the Defendant

was an acquaintance of Ms. Pirtle.

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The victim testified that he was airlifted to the hospital because emergency

personnel did not find an exit wound and did not know where the bullet was. He was

discharged around 3:00 or 4:00 a.m. with no surgery. The victim testified that the bullet

“grazed [him] on this side and just knocked a big chunk of [his] flesh off on this side and

went straight out.” He stated he had chronic back pain and muscle spasms, that his

ability to work was reduced, and that he had a scar. The victim returned to work at the

restaurant, as a cook rather than as a closer, for approximately four months after the

shooting. Ms. Chatman testified that the victim returned to work approximately three

weeks after the shooting and had back pain. She stated that the restaurant later closed

due to the pandemic and that the victim was unemployed at the time of trial. The

victim’s medical records were introduced into evidence. They reflected that the victim

was treated for a gunshot wound to the right side of his back, that the wound appeared

“superficial,” and that he was discharged with instructions for the treatment for an

abrasion.

The victim identified the Defendant from a photographic lineup and gave a

statement to police on the day after the shooting. He agreed that his statement to police

did not include anything about hearing a second shot go past his head, but he testified that

he did mention that there was a second shot in his statement. The victim acknowledged

that he had a conviction for aggravated burglary in 2014, another aggravated burglary

conviction in 2010, and three theft convictions.

Sergeant Robert Groves of the Jackson Police Department testified that, based on

the victim’s identification, the Defendant was taken into custody the next day and elected

to give a statement. Sergeant Groves typed the Defendant’s statement, which the

Defendant reviewed and signed. The Defendant stated that a friend of his had told him

that the victim had assaulted her, and he went to the victim’s work to “confront” the

victim about the assault. He had smoked marijuana prior to arriving. According to the

Defendant, a friend was driving his car. The Defendant got out of the car to smoke and

saw the victim walk past. The Defendant stated, “The way he looked at me made me

mad and I went to my car and got my .38 revolver.” The Defendant then “walked up on

him and he ran.” The Defendant stated that he “wasn’t trying to kill” the victim but “just

wanted to scare him.” According to the Defendant’s statement, he fired twice at the

ground, then left. He dropped off his friend and threw the gun into a wooded area.

Sergeant Groves agreed that the Defendant consented to give a statement and

consented to a search of his car. Sergeant Groves attempted to locate the gun, but the

Defendant was only able to give general directions, and Sergeant Groves did not find the

weapon. Sergeant Groves did not find any bullets at the scene of the shooting. He was

not aware of a projectile and cell phone recovered from the parking lot.

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In closing argument, the prosecutor referred back to voir dire and noted, “there’s a

lot at stake here both for the [D]efendant, the victim and our community.” He went on to

state that if the jury found that “[the Defendant] is guilty of breaking our laws of making

our community unsafe of attempting to take the life of another human being,” then the

jury should forget the victim’s “flaws” because “[n]o one, whatever their past may be,

deserves to die in a … parking lot.” The prosecutor told the jury, “[O]n behalf of the

State of Tennessee, on behalf of this community and on behalf of the victim, you must

reach the only verdict that truth and justice dictate.” The defense did not object to these

comments, but argued in closing that the court would instruct the jury not to be swayed

by sympathy or emotion. Defense counsel observed, “This notion of it’s your job to

protect our community [—] is not what your job is.” Counsel argued, “The police’s job

is to protect the community…. Your job is to decide this case using logic….” Defense

counsel argued that the Defendant’s actions were not consistent with those of someone

who desired the death of the victim in that he abandoned the attack after firing and in that

he cooperated with police. The prosecutor’s response acknowledged that “like [defense

counsel] said,” the jury should not convict based on “bias, prejudice, passion or

sympathy, but because of the facts and because of the law.”

The trial court gave the following instructions on attempted first degree murder:

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 attempted to kill the alleged victim,

Darvius Chatman;

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 victim1;

and

(3) that the attempted killing was premeditated.

The trial court defined “intentionally” and “premeditation” for the jury. The

instructions for attempted second degree murder informed the jury:

1

The transcript reflects that the trial court read this sentence with the other definitions after

giving the third element of the offense.

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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 attempted to kill the alleged victim,

Darvius Chatman;

and

(2) that the defendant acted knowingly.

“Knowingly” means that a person acts with an awareness that his

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.

The trial court then defined attempted voluntary manslaughter, using the same

definition as for attempted second degree murder but adding the requirements of a state

of passion arising from adequate provocation. The trial court instructed on aggravated

assault, assault, and employing a firearm during the commission of or attempt to commit

a dangerous felony, with the dangerous felony being identified as attempted first degree

murder, attempted second degree murder, or attempted voluntary manslaughter.

The jury found the Defendant guilty of attempted second degree murder as a lesser

included offense of attempted first degree murder, aggravated assault, and employing a

firearm during the commission of or attempt to commit the dangerous felony of

attempted second degree murder. The trial court held a sentencing hearing in which it

applied as enhancement that the Defendant had a history of criminal behavior beyond that

necessary to establish the range and that he committed offenses while a juvenile which

would have been felony offenses for an adult. T.C.A. § 40-35-114(1), (16). The court

sentenced the Defendant to twelve years for attempted second degree murder, six years

for aggravated assault, and the statutorily required six years with a one hundred percent

release eligibility for the firearms offense. The aggravated assault conviction was

merged with the attempted second degree murder conviction, and the firearms offense

was to be served consecutively by statute for an effective eighteen-year sentence.

The Defendant moved for a new trial, raising the sufficiency of the evidence,

asserting error in sentencing, and asserting that the prosecutor committed misconduct by

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asking the jury to consider the safety of the community in closing argument.

Acknowledging that he had not objected to closing argument, the Defendant requested

plain error relief. The trial court noted the strong proof of guilt, including the

Defendant’s identification by two witnesses and the Defendant’s statement

acknowledging that he had fired the shots. The court observed that it did not have a

transcript of the trial, concluded that the objection to closing argument had been waived,

and determined that even if the closing argument had been improper, there was no

prejudice based on the strong proof at trial. The Defendant appeals.

ANALYSIS

On appeal, the Defendant renews his objection to the sufficiency of the evidence

and the prosecutor’s closing argument. He also raises as error for the first time the

omission from the jury instructions of the statutory definition of attempt. Because we

conclude that the jury was improperly instructed, we reverse the convictions for

attempted second degree murder and employment of a firearm in the commission of

attempted second degree murder, and we remand for further proceedings.

I. Sufficiency of the Evidence

The Defendant asserts that the evidence was insufficient to support the conviction

for attempted second degree murder because the State did not introduce sufficient proof

to establish that he was acting with the requisite intent. The State responds that there was

sufficient evidence to allow the jury to infer that the Defendant acted with the requisite

intent.

This court must set aside a finding of guilt if the evidence is insufficient to support

the finding by the trier of fact of guilt beyond a reasonable doubt. Tenn. R. App. P.

13(e). The question before the appellate court is whether, after viewing the evidence in

the light most favorable to the State, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. State v. Pope, 427 S.W.3d

363, 368 (Tenn. 2013). This court will not reweigh or reevaluate the evidence, and it

may not substitute its inferences drawn from circumstantial evidence for those drawn by

the trier of fact. State v. Smith, 436 S.W.3d 751, 764 (Tenn. 2014). The jury’s guilty

verdict, approved by the trial judge, accredits the State’s witnesses and resolves all

conflicts in favor of the prosecution. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002).

The trier of fact is entrusted with determinations concerning witness credibility, factual

findings, and the weight and value of evidence. Smith, 436 S.W.3d at 764. In reviewing

the sufficiency of the evidence, we afford the State the strongest legitimate view of the

evidence and all reasonable inferences that can be drawn from the evidence. State v.

Hawkins, 406 S.W.3d 121, 131 (Tenn. 2013). “A verdict of guilt removes the

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presumption of innocence and replaces it with a presumption of guilt, and on appeal the

defendant has the burden of illustrating why the evidence is insufficient to support the

verdict rendered by the jury.” Reid, 91 S.W.3d at 277. “Circumstantial evidence alone is

sufficient to support a conviction, and the circumstantial evidence need not exclude every

reasonable hypothesis except that of guilt.” State v. Wagner, 382 S.W.3d 289, 297

(Tenn. 2012).

To establish that the Defendant committed attempted second degree murder as

charged, the State had to show that the Defendant acted with the intent to cause a result

that would constitute the offense of second degree murder, under the circumstances

surrounding the conduct as the Defendant believed them to be, and that the conduct

constituted a substantial step toward the commission of the offense. T.C.A. § 39-12-

101(a)(3). To constitute a substantial step, the Defendant’s entire course of action had to

be shown as corroborative of the intent to commit the offense. T.C.A. § 39-12-101(b).

Second degree murder is a knowing killing of another. T.C.A. § 39-13-210(a)(1). A

person acts intentionally “when it is the person’s conscious objective or desire” to cause

the result. T.C.A. § 39-11-302(a). 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.” T.C.A. § 39-11-302(b).

The Defendant argues that the State failed to introduce proof regarding his intent.

Whether the State has established the requisite mens rea is a question of fact reserved for

the jury’s determination. State v. Davis, 466 S.W.3d 49, 69 (Tenn. 2015). “Intent, which

can seldom be proven by direct evidence, may be deduced or inferred by the trier of fact

from the character of the assault, the nature of the act and from all the circumstances of

the case in evidence.” State v. Inlow, 52 S.W.3d 101, 105 (Tenn. Crim. App. 2000)

(concluding that there was sufficient evidence of intent to support an attempted second

degree murder conviction when the defendant and victim were in a feud, the defendant

made threats, and the defendant stabbed the unarmed victim during a fight); see State v.

Brown, 311 S.W.3d 422, 432 (Tenn. 2010).

Here, the evidence at trial established that the Defendant was angered by the

victim’s treatment of Ms. Pirtle, brought a gun to the victim’s place of work, waited for

the victim outside, followed him to the dumpster, and then fired his weapon twice, hitting

the victim in the back once. While the Defendant claimed that he was firing at the

ground and did not intend to hit the victim, a defendant’s self-serving declaration of his

or her intent is only one factor for the jury to consider, and the Defendant’s actions and

the circumstances of the crime are also evidence of intent. See State v. Holland, 860

S.W.2d 53, 59 (Tenn. Crim. App. 1993). The evidence established that a bullet struck the

victim in the back as he was attempting to flee. In the light most favorable to the State,

the victim’s testimony established that a second shot nearly struck his head, and Ms.

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Chatman and the Defendant agreed that a second shot was fired. The circumstances of

the shooting, including the procurement of a weapon, the lying in wait, and the firing of

multiple shots at the fleeing and unarmed victim, were sufficient to allow a rational trier

of fact to infer that the Defendant acted with the intent to commit second degree murder

and took a substantial step toward committing the offense. See State v. Brandon Scott

Donaldson, No. E2016-00262-CCA-R3-CD, 2017 WL 2875722, at *18 (Tenn. Crim.

App. July 6, 2017) (the defendant’s act of firing eleven gunshots at a vehicle containing

the victims was sufficient to establish his intent to commit attempted second degree

murder); State v. Johnny Frank Royston, Sr., No. E2014-00018-CCA-R3-CD, 2015 WL

159813, at *9 (Tenn. Crim. App. Jan. 13, 2015) (evidence that the defendant drugged the

victim and choked her to the extent that she received eye injuries, lost her voice, and had

rope marks on her neck, was sufficient to support a conclusion that the defendant acted

with the intent to commit a knowing killing and took a substantial step toward completing

the crime). Although the Defendant argues that the minor nature of the injury shows that

the Defendant did not intend to kill the victim, a rational trier of fact could have found

that the victim survived because of the Defendant’s poor marksmanship and not due to a

lack of intent. See State v. Elder, 982 S.W.2d 871, 875 (Tenn. Crim. App. 1998). We

conclude that the evidence is sufficient.

The Defendant does not contest the sufficiency of the evidence underlying the

aggravated assault or weapons offenses, and we conclude that the evidence is sufficient to

allow the jury to conclude that the Defendant intentionally or knowingly caused bodily

injury to the victim by the use of a deadly weapon and that he employed a firearm during

the commission of or attempt to commit the dangerous felony of attempted second degree

murder. T.C.A. §§ 39-13-101(a)(1), 39-13-102(a)(1)(A)(iii), 39-17-1324(b), (i)(1)(B).

Accordingly, the evidence is sufficient to support the Defendant’s convictions.

II. Failure to Instruct on Attempt

On appeal, the Defendant asserts that his conviction for attempted second degree

murder should be reversed because the trial court committed plain error in not instructing

the jury on the statutory elements of attempt. The State responds that plain error has not

been established. We conclude that the failure to instruct on an essential and disputed

element of the offense requires reversal.

The United States Constitution and Tennessee Constitution guarantee criminal

defendants the right to trial by jury. U.S. Const. amend. VI; Tenn. Const. art. I, § 6. This

right includes the right to a correct and complete charge of the law. State v. Cole-Pugh,

588 S.W.3d 254, 260 (Tenn. 2019). The trial court must “instruct the jury on the general

principles of law applicable to the facts of the case,” which includes defining every

element of the offense charged. State v. Clark, 452 S.W.3d 268, 294-95 (Tenn. 2014).

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“‘[T]he defendant has a right to have every issue of fact raised by the evidence and

material to his defense submitted to the jury upon proper instructions by the judge.’”

Cole-Pugh, 588 S.W.3d at 260 (quoting State v. Sims, 45 S.W.3d 1, 9 (Tenn. 2001)).

We note that the indictment specified that the Defendant was being charged with

having taken a substantial step in furtherance of the commission of first degree murder by

shooting at the victim.2 See T.C.A. § 39-12-101(a)(3). Subsection -101(a)(3) sets out the

requirements for attempt as charged here:

(a) A person commits criminal attempt who, acting with the kind of

culpability otherwise required for the offense:

…

(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.

(b) Conduct does not constitute a substantial step under subdivision

(a)(3), unless the person’s entire course of action is corroborative of the

intent to commit the offense.

T.C.A. § 39-12-101. The jury was not instructed on the statutory requirements to

establish attempt as necessary for the conviction for attempted second degree murder.

Initially, we address the standard of review. The parties agree that this issue was

waived and should be reviewed for plain error because the Defendant did not object to

the instructions or raise the issue in his motion for a new trial. “As part of their

instructions in criminal cases, trial courts must describe and define each element of the

offense or offenses charged.” Clark, 452 S.W.3d at 295. “Whether requested or not,” the

essential elements of the offenses charged should be submitted to the jury. State v.

Brewer, 932 S.W.2d 1, 16 (Tenn. Crim. App. 1996). “An erroneous or inaccurate jury

charge, as opposed to an incomplete jury charge, may be raised for the first time in a

motion for a new trial and is not waived by the failure to make a contemporaneous

objection.” State v. Faulkner, 154 S.W.3d 48, 58 (Tenn. 2005) “An instruction should

be considered prejudicially erroneous only if the jury charge, when read as a whole, fails

to fairly submit the legal issues or misleads the jury as to the applicable law.” Id.; see

State v. Dylan Brewer, No. W2017-01725-CCA-R3-CD, 2019 WL 1109917, at *4 (Tenn.

Crim. App. Mar. 11, 2019) (concluding that the omission of mens rea instructions was

not waived by failure to object at trial). Accordingly, the Defendant’s failure to object at

2

The parties focus on attempt as defined in Tennessee Code Annotated section 39-12-

101(a)(2).

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trial did not waive the issue. However, when such an issue is not raised in a motion for a

new trial, it is reviewed for plain error only. Faulkner, 154 S.W.3d at 58; Dylan Brewer,

2019 WL 1109917, at *4 (concluding that although the omission of a mens rea

instruction was not waived for failure to object, it was waived by failure to raise the issue

in the motion for a new trial). We agree with the parties that the Defendant waived the

issue by failing to include it in his motion for a new trial. See Faulkner, 154 S.W.3d at

58.

While not every erroneous instruction “rises to the level of constitutional error,”

“[t]he failure to instruct the jury on a material element of an offense,” constitutes

constitutional error subject to harmless error analysis. Faulkner, 154 S.W.3d at 60

(concluding that error in including surplusage regarding nature-of-conduct language was

not constitutional error). A jury instruction which misstates or omits an element of an

offense so as to lessen the State’s burden of proof amounts to constitutional error. State

v. Page, 81 S.W.3d 781, 789 (Tenn. Crim. App. 2002). Due process requires the

conviction to rest upon a jury determination that the defendant is beyond a reasonable

doubt guilty of every element of the crime. State v. Ducker, 27 S.W.3d 889, 899 (Tenn.

2000). When the charge omitted is essential to a fair trial, the failure to raise the issue

below does not preclude relief. State v. Teel, 793 S.W.2d 236, 249-50 (Tenn. 1990).

Such non-structural constitutional error places the burden on the State to prove

harmlessness beyond a reasonable doubt. State v. Rodriguez, 254 S.W.3d 361, 371

(Tenn. 2008). In State v. Minor, the Tennessee Supreme Court noted that a defendant

who had preserved an allegation of nonstructural constitutional error would have the

burden of persuading the court that error had occurred and that the State would then bear

the burden of establishing harmlessness beyond a reasonable doubt. 546 S.W.3d 59, 67

(Tenn. 2018). Because the defendant in Minor had failed to preserve the error, the

Tennessee Supreme Court conducted an analysis under the plain error doctrine. Id. at 70-

75.

For an error to constitute plain error sufficient to merit relief, the following factors

must be present: 1) the record must clearly establish what occurred in the trial court; 2) a

clear and unequivocal rule of law must have been breached; 3) a substantial right of the

accused must have been adversely affected; 4) the accused did not waive the issue for

tactical reasons; and 5) consideration of the error is necessary to do substantial justice.

Minor, 546 S.W.3d at 67; State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App.

1994). Additionally, “‘the plain error must be of such a great magnitude that it probably

changed the outcome’” of the proceeding. State v. Bishop, 431 S.W.3d 22, 44 (Tenn.

2014) (quoting Adkisson, 899 S.W.2d at 642). When reviewing for plain error, we keep

in mind that “[a] ‘substantial right’ is a right of ‘fundamental proportions in the

indictment process, a right to the proof of every element of the offense, and is

constitutional in nature.’” Adkisson, 899 S.W.2d at 639 (quoting State v. David L.

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Hassell, No. 02C01-9202-CR-00038, 1992 WL 386311, at *6 (Tenn. Crim. App. Dec.

30, 1992), abrogated on other grounds by State v. Jackson, 173 S.W.3d 401, 407 n.3

(Tenn. 2005)) (emphasis added).

Here, the record clearly establishes that the instructions regarding attempt were

omitted, and it does not appear that there was any tactical reason to waive the instructions

on attempt. We consider whether a clear and unequivocal rule of law was breached. The

State argues that the word “attempt” is “in common usage” and that the instructions

accordingly adequately defined the offense. See State v. Michael Wayne Perry, No.

M1999-01832-CCA-R3-CD, 2001 WL 334302, at *2, 13-14 (Tenn. Crim. App. Apr. 6,

2001) (summarizing the State’s argument that the public’s understanding of “attempt”

was the same as the legal definition). However, “[t]he words defining the offense …

have a technical meaning and it is the trial court’s duty to give such meaning to the jury

in the charge….” Teel, 793 S.W.2d at 249 (concluding that it was error to omit the

statutory definition of rape from the offense of felony murder where the underlying

felony was rape, but determining that the error was harmless beyond a reasonable doubt

when the same jury was correctly instructed and found the elements of rape in connection

with an aggravating circumstance). The offense, as charged here, required the State to

prove that the Defendant acted with the intent to cause the result of second degree

murder, that his conduct constituted a substantial step toward the commission of the

offense, and that his entire course of action was corroborative of the intent to commit the

offense. Intent requires showing that the act was the person’s conscious objective or

desire. We reject the State’s contention that the common understanding of “attempt” was

sufficient to establish these elements, which were contested at trial. Instead, we conclude

that the omission of the statutory elements of attempt was error and that a clear and

unequivocal rule of law was breached.

The State cites to State v. Larry Charles Hefner, Jr., in which the Defendant was

convicted of committing burglary by entering a building without the owner’s consent and

attempting to commit a theft, and the trial court failed to define “attempt,”

“intentionally,” and “recklessly.” No. E2018-01164-CCA-R3-CD, 2019 WL 2763007, at

*9 (Tenn. Crim. App. July 2, 2019), perm. app. denied (Tenn. Mar. 26, 2020). The Larry

Charles Hefner, Jr., court determined there was no plain error because the overwhelming

evidence that the Defendant had stuffed five pairs of scrubs down his pants and attempted

to leave the store precluded a favorable finding on three of the factors necessary to

establish plain error. Id. The State likewise cites to State v. Michael Wayne Perry, where

this court concluded that the failure to define “attempt” for the underlying felony of rape

in a felony murder was harmless in a case where the proof included evidence that the

victim’s clothing was forcibly removed and the defendant confessed that he killed the

victim after she refused sexual intercourse and that he “‘did stuff’” to her and “thought he

had raped her.” No. M1999-01832-CCA-R3-CD, 2001 WL 334302, at *2, 13-14 (Tenn.

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Crim. App. Apr. 6, 2001). These cases do not stand for the proposition, however, that the

trial court need not instruct on the statutory definition of “attempt” or that a

commonsense, layman’s understanding of “attempt” is sufficient to establish the offense,

but instead are based on a harmless error analysis premised on the overwhelming nature

of the proof.

In this case, an essential element of the offense was omitted from the jury

instructions and was contested at trial, and the case is accordingly distinguishable from

Larry Charles Hefner, Jr., and Michael Wayne Perry. The Defendant was entitled to an

instruction informing the jury of the elements of attempt, but the jury instructions did not

include the elements of attempt. Furthermore, the jury was told that it only had to find

that the Defendant acted “knowingly,” that is, with an awareness that his conduct is

reasonably certain to cause the result, rather than “intentionally,” or with the conscious

objective or desire to cause the result. See T.C.A. § 39-11-302(a), (b). The Defendant

essentially conceded at trial that he went to the victim’s place of work and fired shots.

The only disputed fact was whether the Defendant acted with the intent to harm the

victim or was, as he told police, merely attempting to frighten the victim by discharging

the gun in his vicinity. See Dylan Brewer, 2019 WL 1109917, at *6-7 (reversing the

defendant’s conviction when the definitions of “intentionally” and “knowingly” were

omitted from the oral jury instructions and “intent was the primary issue at trial”).

The jury was not instructed on the elements necessary to establish attempt as it

was charged in the indictment. Further, the jury was instructed that the conviction

offense required only a finding that the Defendant acted “knowingly,” although the

elements of attempt require the State to show that the Defendant acted “with intent.” See

id. at *7 (noting that “the failure to provide a definition of the mens rea is not harmless,

especially when the defendant’s mental state is a ‘hotly contested issue’” (quoting State v.

Robert F. Smythers, No. E2001-02806-CCA-R3-CD, 2003 WL 21145428, at *18-19

(Tenn. Crim. App. May 19, 2003)). We note parenthetically that the jury acquitted the

Defendant of attempted first degree murder, which required a finding of intentional

conduct and premeditation.

Accordingly, the omission had the effect not only of lowering the State’s burden

of proof but of omitting instructions pertinent to the one contested issue at trial. See

Page, 81 S.W.3d at 789-90 (concluding that an error in instructing the jury on nature-of-

conduct rather than result-of-conduct language was not harmless beyond a reasonable

doubt when “the mens rea of the defendant was indeed the disputed issue at trial”). We

conclude that consideration of the error is necessary to do substantial justice and that the

error affected a “substantial right” of the Defendant, namely the “‘right to the proof of

every element of the offense.’” Adkisson, 899 S.W.2d at 639 (quoting David L. Hassell,

1992 WL 386311, at *6); see State v. Keith T. Dupree, No. W1999-01019-CCA-R3-CD,

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2001 WL 91794, at *4-5 (Tenn. Crim. App. Jan. 30, 2001) (concluding that omitting the

result-of-conduct definition of “knowingly” was reversible error when the sole issue at

trial was whether the defendant was aware that his conduct was reasonably certain to

cause the result). We conclude that the conviction for attempted second degree murder

must be reversed and the cause remanded for further proceedings. Although the

Defendant does not address the effect of the instructions on the firearms conviction, we

conclude that, because it was premised on the employment of a weapon during the course

of attempted second degree murder and because the jury was incorrectly instructed on the

elements of attempted second degree murder, the firearms conviction must likewise be

reversed. In the event of further appellate review, we address the Defendant’s remaining

issue.

III. Prosecutorial Misconduct

The Defendant asserts that the prosecutor committed misconduct by any

references to the “community” in closing argument. The State asserts that this argument

is waived, that there was no plain error, and that any impropriety did not affect the

verdict. The Defendant counters that, although he did not make a contemporaneous

objection, he is entitled to plenary review under State v. Hawkins, 519 S.W.3d 1, 48

(Tenn. 2017), because he raised the issue in the motion for a new trial. We conclude that

regardless of whether we apply plain error or plenary review, the Defendant is not

entitled to reversal of the convictions on this ground.

Courts generally apply plain error review when the defense has failed to object to

the contents of the prosecutor’s argument. See State v. Jordan, 325 S.W.3d 1, 58 (Tenn.

2010) (reviewing closing argument for plain error when the defendant did not

contemporaneously object); State v. Larkin, 443 S.W.3d 751, 813 (Tenn. Crim. App.

2013). However, in Hawkins, a death penalty case, the defendant raised four instances of

alleged misconduct in closing statements, none of which drew a contemporaneous

objection and only two of which were raised in the motion for a new trial. Hawkins, 519

S.W.3d at 48. The Tennessee Supreme Court applied plenary review to the two issues

raised in the motion for a new trial, one of which had been the subject of a previous

motion in limine. Id. We note that one of the prosecutor’s statements which received

plenary review violated the trial court’s pretrial ruling that the prosecutor should not use

the term “rape” when referring to an offense not charged in the case. Id.; see also State v.

Zackary James Earl Ponder, No. M2018-00998-CCA-R3-CD, 2019 WL 3944008, at *11

(Tenn. Crim. App. Aug. 21, 2019) (applying plenary review to a statement in a closing

argument that violated a pretrial ruling but was not objected to at the time it was made).

Whether the appellant is entitled to plenary or only plain error review of improper

argument which was not objected to but was preserved in a motion for a new trial is an

issue currently before the Tennessee Supreme Court. See State v. Tyler Ward Enix, No.

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E2020-00231-CCA-R3-CD, 2021 WL 2138928, at *15 (Tenn. Crim. App. May 26,

2021), perm. app. granted (Tenn. Oct. 13, 2021) (order).

We conclude that, whether we apply plain error or plenary review, the Defendant

is not entitled to relief. See State v. Martell Smith, No. M2019-01575-CCA-R3-CD, 2020

WL 6603467, at *7 (Tenn. Crim. App. Nov. 12, 2020), perm. app. denied (Tenn. Mar.

17, 2021) (concluding that the defendant was not entitled to relief regardless of whether

plain error or plenary review was applied to the statements from closing argument); State

v. Charvaris Donte Newsom, No. M2020-00681-CCA-R3-CD, 2021 WL 1753409, at *19

(Tenn. Crim. App. May 4, 2021), perm. app. denied (Tenn. Sept. 22, 2021). Generally,

plain error requires a showing that consideration of the error is necessary to do substantial

justice. Adkisson, 899 S.W.2d at 642. Additionally, “‘the plain error must be of such a

great magnitude that it probably changed the outcome of the trial.’” Bishop, 431 S.W.3d

at 44 (quoting Adkisson, 899 S.W.2d at 642). Likewise, in reviewing impropriety in

closing argument, this court must evaluate the error to determine whether the conduct

affected the verdict to the defendant’s prejudice. State v. Bane, 57 S.W.3d 411, 425

(Tenn. 2001). The court considers: 1) the conduct complained of viewed in context and

in light of the facts and circumstances of the case; 2) the curative measures undertaken by

the court and the prosecution; 3) the prosecutor’s intent in making the improper

statement; 4) the cumulative effect of the improper conduct and any other errors in the

record; and 5) the relative strength or weakness of the case. Larkin, 443 S.W.3d at 813.

“A criminal conviction should not be lightly overturned solely on the basis of the

prosecutor’s closing argument.” State v. Banks, 271 S.W.3d 90, 131 (Tenn. 2008).

The Defendant notes that “community conscience arguments are generally

improper.” State v. Thomas, 158 S.W.3d 361, 414 (Tenn. 2005) (appendix), abrogated

on other grounds by State v. Urshawn Eric Miller, No. W2019-00197-SC-DD-TDD,

2021 WL 5810574 (Tenn. Dec. 7, 2021). He cites to the prosecutor’s references to the

community, including: the prosecutor’s statement that “there’s a lot at stake here both for

the [D]efendant, the victim and our community”; the prosecutor’s reference to the jury’s

responsibility to determine if “[the Defendant] is guilty of breaking our laws[,] of making

our community unsafe[,] of attempting to take the life of another human being”; and the

prosecutor’s statement that “on behalf of the State of Tennessee, on behalf of this

community and on behalf of the victim, you must reach the only verdict that truth and

justice dictate.” While there was no objection to these statements, defense counsel

attempted to argue the impropriety of any consideration of community conscience to the

jury, noting that they would be instructed to disregard sympathy and emotion. Defense

counsel observed, “This notion of it’s your job to protect our community [—] is not what

your job is.” He elaborated, “The police’s job is to protect the community…. Your job is

to decide this case using logic….” When the prosecutor was given a chance to respond,

he acknowledged that “like [defense counsel] said,” the jury should not convict based on

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bias, prejudice, passion, or sympathy “but because of the facts and because of the law.”

We note that the proof in this case was particularly strong, in that the Defendant

acknowledged going to the victim’s workplace while armed, waiting for the victim, and

firing two shots, one of which struck the victim in the back. The allegedly improper

arguments did not concern any disputed issue at trial. We conclude that the Defendant

cannot show that any impropriety in the prosecutor’s closing statements was of such great

magnitude that it probably changed the outcome of the trial or that the statements affected

the verdict to his prejudice. Bishop, 431 S.W.3d at 44; Bane, 57 S.W.3d at 425.

Particularly in view of the curative measures undertaken by the prosecution in

acknowledging that defense counsel was correct that the jury should not allow bias,

prejudice, passion, or sympathy to affect the verdict but should determine guilt based on

the law, and also in light of the overwhelming evidence that the Defendant shot the

victim, we conclude that the Defendant is not entitled to reversal of the convictions based

on any error in presenting a community conscience argument.

CONCLUSION

Based on the foregoing reasoning, the Defendant’s convictions for attempted

second degree murder and employment of a firearm during attempted second degree

murder are reversed, and the case is remanded for further proceedings. The conviction

for aggravated assault is affirmed.

____________________________________________

JOHN EVERETT WILLIAMS, PRESIDING JUDGE

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