# State v. Ely

> Tennessee Supreme Court · July 13, 2001 · 48 S.W.3d 710

URL: https://www.frixlaw.com/law-library/cases/9862776

## Case

- **Full name:** STATE of Tennessee v. Curtis Jason ELY; State of Tennessee v. Laconia Lamar Bowers
- **Court:** Tennessee Supreme Court
- **Decided:** July 13, 2001
- **Citations:** 48 S.W.3d 710
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Banker, Anderson, Drowota, Birch, Holder
- **Cited by:** 302 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9862776

## How later opinions describe it (automated extraction)

- holding that the trial court did not err by failing to instruct facilitation as no reasonable jury could believe that, although the defendant was present at the scene of the robbery, knew that the accomplice intended to commit robbery, and substantially assisted in the commiss…
- finding that, where the evidence was sufficient to support a conviction of second degree murder, reckless homicide, or criminally negligent homicide, but the jury was given no option to convict of a lesser offense than felony murder, the failure to instruct on the lesser-inclu…
- explaining that the offense of facilitation of felony murder requires proof that “the defendant knew that another person intended to commit the underlying felony, but he or she did not have the intent to promote or assist the commission of the offense” (emphasis added)
- concluding that the defendant’s conduct of firing a gun in the general direction of a van containing three people showed the defendant was aware of being reasonably certain of killing the victim sufficient to support second degree murder
- holding that, “when determining whether an erroneous failure to instruct on a lesser- included offense requires reversal, . . . the proper inquiry for an appellate court is whether the error is harmless beyond a reasonable doubt.”

## Opinion text

ORDER GRANTING DEFENDANT’S PETITION TO REHEAR
PER CURIAM.
The defendant, Curtis Jason Ely, has respectfully filed a petition to rehear the opinion of this Court filed on June 5, 2001. In his petition, the defendant alleges that due to particular wording used in its opinion, the Court may have characterized the offense of second degree murder as a nature-of-conduct offense and changed the nature of the State’s burden of proof on retrial. Upon request by this Court, the State has filed a response to the petition, and although it agrees that some language in the opinion may inaccurately characterize the offense of second degree murder, it believes that other changes are unwarranted.
We have previously recognized that second degree murder is a result-of-conduct offense, see State v. Ducker, 27 S.W.3d 889, 896 (Tenn.2000), and consequently, the mens rea required for that offense accompanies only its resulting harm, not the nature of the defendant’s conduct. Although we did not intend to depart from this reasoning in the present case, some statements in the opinion of this Court may admittedly indicate otherwise.
Therefore, upon due consideration, we conclude that the Defendant’s Petition to Rehear is well taken and should therefore be GRANTED. Accordingly, for good and sufficient reasons appearing to the Court, the opinion previously entered in this case on June 5, 2001, is hereby withdrawn, and the Clerk of the Court is hereby directed to file the amended and substituted opinion of the Court accompanying this Order. The judgment of this Court previously entered remains unchanged.
Costs associated with this petition are waived.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9862776. Public record. Not legal advice.