State v. Brown

IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
November 5, 2009 Session

STATE OF TENNESSEE v. BENJAMIN BROWN

Appeal by Permission from the Court of Criminal Appeals
Criminal Court for Shelby County
No. 96-13456 Carolyn Wade Blackett, Judge

No. W2006-02762-SC-R11-CD - Filed May 27, 2010

The defendant was convicted of aggravated child abuse and felony murder in the perpetration
of aggravated child abuse. The defendant appealed the felony murder conviction, and the
Court of Criminal Appeals affirmed his conviction. We granted permission to appeal and
address the issue of whether the trial court committed reversible error by failing to instruct
the jury on the lesser-included offenses of felony murder, which include second degree
murder, reckless homicide, and criminally negligent homicide. We conclude that the trial
court erred by failing to instruct the jury as to these lesser-included offenses, and accordingly,
we reverse the felony murder conviction and remand the case for a new trial on the felony
murder count.

Tenn. R. App. P. 11; Judgment of the Court of Criminal Appeals Reversed and Case
Remanded to the Criminal Court for Shelby County

S HARON G. L EE, J., delivered the opinion of the Court, in which J ANICE M. H OLDER, C.J.,
C ORNELIA A. C LARK, G ARY R. W ADE, and W ILLIAM C. K OCH, J R., JJ., joined.

William D. Massey and Lorna S. McClusky, Memphis, Tennessee, for the appellant,
Benjamin Brown.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;
J. Ross Dyer, Senior Counsel; William L. Gibbons, District Attorney General; and John
Wheeler Campbell, Assistant District Attorney General, for the appellee, State of Tennessee.
 OPINION

Factual and Procedural Background

The first marriage of Benjamin Brown (“the defendant”) and Tammy Huff was very
brief. They were wed on April 26, 1994, at the home of Ms. Huff’s parents in Hernando,
Mississippi. On the evening of the wedding, Ms. Huff’s father received an anonymous
telephone call from a woman who claimed that the defendant was the biological father of her
children. Upon learning this information, Ms. Huff, who was pregnant with the defendant’s
child, left the defendant and later divorced him.

On September 16, 1994, Ms. Huff gave birth to a daughter, Ashley Denise (“Ashley”),
and they resided with Ms. Huff’s parents in Hernando until the summer of 1996. For about
twenty months, the defendant had no contact with his ex-wife and daughter. However, in
May of 1996, Ms. Huff and the defendant began seeing each other again and reconciled. On
July 12, 1996, they remarried. On August 2, 1996, the defendant, Ms. Huff, and Ashley
moved into an apartment in Memphis.

The second marriage was troubled. On September 12, 1996, after only two months
of marriage, Ms. Huff decided to leave the defendant. She called her parents and told them
she wanted to return home. The defendant, after overhearing Ms. Huff’s telephone
conversation, became angry and according to Ms. Huff, “like started choking me.” Ms. Huff
got away from the defendant and began packing. She testified that when she told the
defendant that she was leaving him because he was “mean” and she didn’t trust him, his
“eyes like turned red, and . . . he started coming after me. . . .” Ms. Huff testified that the
defendant then placed a knife at her throat and said, “If you leave me, you know, I can, you
know, I can kill you. I don’t have anything to lose.” When the defendant demanded that Ms.
Huff call her parents back and tell them she had changed her mind about coming home, she
did so because the defendant “was threatening me and I was scared.”

The next morning, the defendant drove Ms. Huff and Ashley to Ashley’s daycare
center. After Ms. Huff took Ashley into the center, the defendant drove Ms. Huff to her job
and then went to his own place of employment. At or around 12:30 p.m., the defendant
picked up Ashley from the daycare center. The director of the center, who had worked with
Ashley on a daily basis during the several weeks Ashley had been in attendance, testified that
Ashley was “perfectly well” when she left the center that day. The director said that she
never had any indication that Ashley was the victim of child abuse during the weeks Ashley
had been in her care.

2
 Ashley and the defendant were together the rest of that afternoon. The defendant
testified that they went to a 4:30 p.m. appointment at an insurance company and then to the
home of his cousin. While the defendant and Ashley were at the cousin’s house, the cousin
said Ashley played with a child from next door and appeared to be all right and that the
defendant was “cheerful, laughing” and “in good spirit.” The cousin also said that he had
known the defendant all of his life and had never seen him scold or whip a child. At or
around 6:00 or 6:30 p.m., the defendant bought some fast food, and he and Ashley went to
Ms. Huff’s workplace where the three ate dinner together in the car. Ms. Huff returned to
work, and the defendant and Ashley returned to the family’s apartment.

At or around 8:00 p.m., Rita Griffin, who resided across the hall from the defendant,
was returning to her apartment. The apartments were accessed by an outside metal and
concrete stairway, and, as Ms. Griffin reached the top of this stairway, she saw the defendant
leaving his apartment with Ashley on his left shoulder. She spoke to him briefly before
entering her apartment and did not notice anything unusual about the defendant or Ashley at
this time. Ms. Griffin was unable to see Ashley’s eyes at this time, as Ashley did not raise
her head from the defendant’s shoulder and appeared to be asleep.

The defendant testified that after meeting Ms. Griffin and as he went down the
stairway, he realized that he had left his keys in his apartment. When he returned to the
apartment, he left Ashley alone on the landing outside the door while he went inside. The
defendant maintains that when he came out of the apartment about a minute later, he saw
Ashley lying at the bottom of the stairway.

Meanwhile, immediately after entering her apartment, Ms. Griffin made a telephone
call but was interrupted after approximately two minutes by someone beating on her door.
When she asked who was at her door, the defendant identified himself and said, “My baby
has fallen down the stairs.” Ms. Griffin opened the door to the defendant, whom she
described as appearing “very upset.” He entered her apartment with Ashley in his arms. She
was not moving. Ms. Griffin stated that the defendant was “rocking [Ashley] like ‘Ashley,
Ashley, wake up.’” He told Ms. Griffin that he had set Ashley on the steps and had gone
back into the apartment to get his keys and that when he came out of the apartment, Ashley
“was on the ground. She had fallen down the steps.” Ms. Griffin dialed 911 for medical
assistance, and while she was speaking to the 911 operator, the defendant was shaking
Ashley “like ‘Ashley, Ashley, please wake up. . . .” The 911 operator advised Ms. Griffin
to tell the defendant to stop shaking Ashley and to lay her down and keep her warm. Ms.
Griffin testified that Ashley “was unconscious and her eyes were kind of trying to open and
she was gasping for breath, but she couldn’t really get her breath.” Ms. Griffin was able to
see Ashley’s legs and arms and did not notice any abrasions, bruises, or blood on her. After
laying Ashley down on the floor, the defendant began attempting to perform

3
cardiopulmonary resuscitation on her. Paramedics arrived and transported Ashley to
LeBonheur Hospital, where she was admitted to the emergency room and later to the
intensive care unit. Over the next several hours, Ashley’s neurologic condition deteriorated,
her brain ceased to function, and at 11:55 p.m. on September 15, 1996, she died of heart and
lung failure.

On December 19, 1996, a Shelby County Grand Jury returned two indictments
charging the defendant with one count of aggravated child abuse in violation of Tennessee
Code Annotated section 39-15-4021 ; one count of first degree murder in the perpetration of
aggravated child abuse in violation of Tennessee Code Annotated section 39-13-202(a) (2)2 ;
and one count of premeditated first degree murder, in violation of Tennessee Code Annotated
section 39-13-202(a)(1).3 The case was tried by a jury from April 26 through April 30, 1997.

1
Tennessee Code Annotated section 39-15-402 (1991 & Supp. 1996) provided in pertinent
part:

(a) A person is guilty of the offense of aggravated child abuse who
commits the offense of child abuse as defined in § 39-15-401 and:
(1) The act of abuse results in serious bodily injury to the child[.]

Tennessee Code Annotated section 39-15-401(a) (Supp. 1996) provided, “Any person who
knowingly, other than by accidental means, treats a child under eighteen (18) years of age in such
a manner as to inflict injury or neglects such a child so as to adversely affect the child’s health and
welfare is guilty of a Class A misdemeanor; provided, that if the abused child is six (6) years of age
or less, the penalty is a Class D felony.”
2
Tennessee Code Annotated section 39-13-202 (Supp. 1996) provided in pertinent part:

(a) First degree murder is:

...

(2) A killing of another committed in the perpetration of or attempt
to perpetrate any . . . aggravated child abuse . . . .

(b) No culpable mental state is required for conviction under
subdivision (a)(2) . . . except the intent to commit the enumerated
offenses or acts . . . .
3
Tennessee Code Annotated section 39-13-202(a)(1) provided that “[f]irst degree murder
is . . . [a] premeditated and intentional killing of another[.]”

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 At trial, Dr. Jeffrey Schmidt, the pediatric intensive care physician who treated Ashley
in the intensive care unit, testified that he observed “[n]o scratches, bruises, bumps, no
swelling, no cuts” but that she was suffering from “severe neurologic devastation, severe
brain injury.” He stated that brain injury is evaluated according to the Glasgow Coma Scale,
an objective standard for measuring brain function along a continuum which begins at three,
indicating no brain function, and ends at fifteen, indicating normal brain function. According
to Dr. Schmidt, Ashley scored only four on this scale. He attested that a computerized axial
tomography (CT) scan of Ashley’s brain showed no abnormality but that she exhibited retinal
hemorrhages in the backs of her eyes and that this combination of symptoms was consistent
with “acceleration-deceleration syndrome,” commonly referred to as “shaken baby
syndrome.” He further explained as follows:

The brain sits in a fluid filled sac called the dura. And
especially in little children and babies, the ability for the brain
to move within that sac is far more than adults. In fact, in adults
it doesn’t move much at all. In babies it can move enough that
the connections between the brain and the dura, the tiny blood
vessels can get sheared. The other – the nerve fibers, too, and
the nerve cells can get sheared if there’s a sudden impact or
acceleration-deceleration force. And then that’s also the same
explanation for the tiny vessels in the back of the eye. Because
of a sudden acceleration-deceleration force, these tiny vessels
get ruptured and cause the bleeding, the hemorrhages in the back
of the eye.

Dr. Schmidt testified that the only other circumstances that produce the injury exhibited by
Ashley are “major trauma like high-speed motor vehicle accidents . . . [or] falls from extreme
heights” such as from “three or four-story windows” or “off of . . . 50-foot cliffs.” Dr.
Schmidt denied that a fall down a flight of thirteen stairs, the number of stairs from the
landing of the defendant’s apartment to ground level, would have generated sufficient force
to produce Ashley’s injury, which would have required “much higher speeds of acceleration
and much greater impact for deceleration.” He denied that the defendant’s shaking of Ashley
after he brought her into Ms. Griffin’s apartment would have created sufficient force to cause
Ashley’s injury. Dr. Schmidt described the kind of shaking necessary to generate such force
as “extreme, severe, out of control.” He further testified that “retinal hemorrhage would not
[be] see[n] from a fall down the stairs” and that if Ashley had fallen down the aggregated
concrete and metal steps, he would expect to have found “either bruising, bleeding, cuts,
abrasions, something that would show that her head struck . . . the step or . . . some evidence
of external trauma.” Dr. Schmidt stated that, given the absence of external injury to Ashley’s
head, “the only thing that would achieve that degree of neurologic injury is the shaking that

5
would cause the severe damage to the brain cells.” Dr. Schmidt was unable to say whether
shaken baby syndrome symptoms could result if a child fell directly on its head from a
sufficient height but speculated that the syndrome could result “if a patient fell and they
landed on their butt first, but their head snapped, . . . if the acceleration was high enough and
the impact was high enough.”

Forensic pathologist Dr. Wendy Gunther testified that she performed an autopsy of
Ashley’s body on the day following her death. Upon examining Ashley’s eyes and brain, Dr.
Gunther discovered that there was bleeding at the backs of the eyes and determined that when
Ashley died, all of her brain neurons were either dying or already dead. The doctor
discovered no abrasions, lacerations, or fractures. She found “a tiny scar” on Ashley’s left
arm “with five, tiny white dots like some animal might have bitten her” and a small bruise
on the back of her left arm. Finally, upon opening the skin of Ashley’s buttocks, Dr. Gunther
discovered severe bruising which resulted in bleeding throughout the subcutaneous fat.
Although the defendant attested that he had never spanked Ashley and Ms. Huff admitted
that she had no knowledge that he had ever “spank[ed] or beat or mistreat[ed]” Ashley, Dr.
Gunther described this bruising as “consistent with somebody having struck [Ashley]
repeatedly on the buttocks.” However, she also conceded that the bruising could have been
caused by “a very unusual fall, if the child managed to fall so that from the small of her back
to the area where her buttocks turn under and side to side, all hit some surface at the same
time.” Dr. Gunther found no pattern bruising on Ashley’s buttocks and noted that
“sometimes when a child is struck or whipped by a parent you see pattern bruises,” stating
that pattern bruises are quite common when a child was struck on the naked buttocks but
more unusual if the child was dressed when struck. She explained that the external evidence
of this severe bruising of the buttocks had been very hard to see because of Ashley’s dark
brown skin and because, after death, when a body is face up, blood collects in the back,
causing everything to have a dark red appearance.

Based upon the information obtained from the autopsy, Dr. Gunther opined that “the
only thing that could have killed [Ashley] is shaken baby syndrome.” Dr. Gunther noted that
in order to cause shaken baby syndrome, “you must shake the baby so hard that the baby’s
head whips back and forth and the axons of the neurons break.” She stated that shaken baby
syndrome is much more common in small babies and that to cause it in a child of Ashley’s
age, “you would have to shake [the child] extremely hard.”

During trial, the State conceded that the count of premeditated first degree murder was
not supported by the evidence, and that count was dismissed. At the close of proof, in
discussion with the parties’ attorneys outside the presence of the jury, the trial court indicated
that because the first degree premeditated murder count had been dismissed, it was not
necessary to charge the jury on second degree murder as a lesser-included offense, stating

6
“[o]nce you’ve knocked out murder one, then your second (degree) and everything went
away.” Counsel for the State voiced concern that the trial court might be required to charge
the jury on criminally negligent homicide as “a lesser grade of homicide . . . even though it
may not be a lesser-included [offense].” The trial court then deferred to the defendant’s
attorney who declined a request for a charge of criminally negligent homicide.

At the conclusion of closing arguments, the trial court charged the jury as to the
offense of aggravated child abuse, the lesser-included offense of child abuse through injury
of a child six years or less, and the offense of first degree murder in the perpetration of
aggravated child abuse. The trial court did not instruct the jury as to any lesser-included
offenses of felony murder.

The jury found the defendant guilty of aggravated child abuse and first degree murder
in the perpetration of aggravated child abuse, and the defendant received a sentence of
imprisonment for life for the felony murder conviction and a concurrent sentence of twenty-
five years for the aggravated child abuse conviction. The defendant appealed the convictions
to the Court of Criminal Appeals. Finding that the defendant had not filed a timely motion
for new trial, the Court of Criminal Appeals held that it was without jurisdiction to hear any
issues stemming from the felony murder conviction other than the issue of sufficiency of the
evidence, which was found to be sufficient to support the conviction. State v. Brown, No.
W1999-00327-CCA-R3-CD, 2000 WL 1664226, at *6, 8-9 (Tenn. Crim. App. Oct. 24,
2000). The Court of Criminal Appeals dismissed the conviction for aggravated child abuse,
concluding that the convictions for aggravated child abuse and felony murder committed in
the perpetration of aggravated child abuse violated constitutional protections against double
jeopardy. Based on our decision in State v. Godsey, 60 S.W.3d 759 (Tenn. 2001), we
concluded that dual convictions for aggravated child abuse and felony murder were
permissible and did not violate protections against double jeopardy. We remanded the case
to the Court of Criminal Appeals for review in light of our decision in Godsey, whereupon
the intermediate appellate court affirmed the conviction for aggravated child abuse. State
v. Brown, No. W1999-00327-CCA-R3-CD, 2002 WL 1869418 (Tenn. Crim. App. Aug. 8,
2002), no perm. app. filed. Thereafter, the defendant filed a petition for post-conviction
relief seeking a delayed direct appeal.

By order of the post-conviction court, the defendant was granted a delayed appeal with
respect to the indictment for felony murder and allowed thirty days to file a motion for new
trial. The order provided that issues raised in the petition as to the indictment for aggravated
child abuse would be held in abeyance pending resolution of the motion for new trial and
delayed appeal relative to the felony murder indictment.

7
 By motion for new trial and subsequent amendment, the defendant claimed, among
other things, that the trial court erred by failing to instruct the jury as to any lesser-included
offenses of felony murder.4 Upon denial of the motion by the trial court, the defendant
appealed to the Criminal Court of Appeals, which held that the trial court did not err in
failing to instruct the jury as to second degree murder or reckless homicide and that while the
trial court did err in failing to instruct the jury as to criminally negligent homicide, such error
was harmless.

We granted review in this case to determine whether the trial court erred in failing to
instruct the jury on lesser-included offenses of felony murder and if so, whether such error
was harmful. After review, we hold that the trial court erred in failing to instruct the jury as
to the lesser-included offenses of felony murder and that such error was harmful, warranting
reversal of the conviction of felony murder and remand for a new trial as to that charge.

Analysis

The defendant contends that the trial court should have instructed the jury as to second
degree murder, reckless homicide, and criminally negligent homicide as lesser-included
offenses of felony murder and that its failure to do so was harmful error. We reiterated the
importance of charging a jury as to lesser-included offenses in State v. Burns, 6 S.W.3d 453
(Tenn. 1999), where we noted that such a practice benefits the prosecution and the defense:

At common law the jury was permitted to find the defendant
guilty of any lesser offense necessarily included in the offense
charged. This rule originally developed as an aid to the
prosecution in cases in which the proof failed to establish some
element of the crime charged. But it has long been recognized
that it can also be beneficial to the defendant because it affords
the jury a less drastic alternative than the choice between
conviction of the offense charged and acquittal. . . . [P]roviding

4
The motion for new trial also included a claim that the trial court erred by failing to take
curative action or declare a mistrial based upon an allegedly improper and inflammatory reference
to Ted Bundy and John Wayne Gacy made by the State during closing argument rebuttal. This issue
was also raised in the defendant’s brief in this appeal. We need not address this issue, however,
because it has been rendered moot by our decision to reverse the trial court’s judgment.

8
 the jury with the “third option” of convicting on a lesser
included offense ensures that the jury will accord the defendant
the full benefit of the reasonable-doubt standard.

Id. at 464 (quoting Beck v. Alabama, 447 U.S. 625, 633-34 (1980)).

The statutory law of this state reflects the importance of properly instructing a jury
with respect to lesser-included offenses. Tennessee Code Annotated section 40-18-110(a)
(1997), applicable at the time of trial, imposed a duty upon the trial court to instruct the jury
as to lesser-included offenses of the felony murder charge even in the absence of a request
by the defendant:

It is the duty of all judges charging juries in cases of criminal
prosecutions for any felony wherein two (2) or more grades or
classes of offense may be included in the indictment, to charge
the jury as to all of the law of each offense included in the
indictment, without any request on the part of the defendant to
do so.5

Tenn. Code Ann. § 40-18-110(a) (emphasis added).

In addition, the well-established law of this state recognizes that the right to lesser-
included offense instructions derives not only from statutory law, but also from the right to
trial by jury as embodied at Article I, section 6 of the Tennessee Constitution, which provides
that “the right of trial by jury shall remain inviolate.” State v. Ely, 48 S.W.3d 710, 726-27
(Tenn. 2001) (citing State v. Bolden, 979 S.W.2d 587, 593 (Tenn. 1998); State v. Staggs, 554
S.W.2d 620, 626 (Tenn.1977); Strader v. State, 362 S.W.2d 224, 230 (Tenn.1962)); see also
State v. Davis, 266 S.W.3d 896, 902 (Tenn. 2008); State v. Richmond, 90 S.W.3d 648, 661

5
Pursuant to amendment of this statute in 2001, the trial judge’s duty to instruct as to lesser
charges is now contingent upon a party’s prior written request, and in its current manifestation, the
statute states in pertinent part as follows:

When requested by a party in writing prior to the trial judge’s
instructions to the jury in a criminal case, the trial judge shall instruct
the jury as to the law of each offense specifically identified in the
request that is a lesser included offense of the offense charged in the
indictment or presentment.

Tenn. Code Ann. § 40-18-110(a) (2006 & Supp. 2009).

9
(Tenn. 2002); State v. Bowles, 52 S.W.3d 69, 77 (Tenn. 2001); State v. Belser, 945 S.W.2d
776, 790 (Tenn. Crim. App. 1996); State v. Howard, 926 S.W.2d 579, 585 (Tenn. Crim. App.
1996); State v. Summerall, 926 S.W.2d 272, 278 (Tenn. Crim. App. 1995); State v. Ruane,
912 S.W.2d 766, 783 (Tenn. Crim. App. 1995); State v. Lewis, 919 S.W.2d 62, 68 (Tenn.
Crim. App. 1995).

In Bolden, we emphasized the mandatory nature of the duty to instruct on lesser-
included offenses and that “neither the prosecution nor the defense should be allowed, based
on their trial strategy, to preclude the jury from considering guilt of a lesser offense included
in the crime charged.” Id. at 593 (quoting People v. Barton, 906 P.2d 531, 536 (Cal. 1995)).

We set forth in Burns various criteria for determining whether a particular offense is
a lesser-included offense of the offense that is the subject of indictment. An offense qualifies
as a lesser-included offense “if all of its statutory elements are included within the statutory
elements of the offense charged; or . . . it fails to meet [that] definition . . . only in the respect
that it contains a statutory element or elements establishing . . . a different mental state
indicating a lesser kind of culpability.” Burns, 6 S.W.3d at 466-67 (emphasis added). In Ely,
48 S.W.3d at 721-22 (Tenn. 2001), we held that “because the mental states required for the
lesser offenses differ only in the level of culpability attached to each in terms of seriousness
and punishment, the offenses of second degree murder, reckless homicide, and criminally
negligent homicide are lesser-included offenses of felony murder.” See also State v. Locke,
90 S.W.3d 663, 669-70 (Tenn. 2002).

However, as we further indicated in Burns, our inquiry must proceed beyond the
conclusion that an offense is a lesser-included offense. In order to properly decide whether
a trial court has erred in failing to give jury instructions as to a lesser-included offense, we
must also examine all of the evidence in the case and determine 1) “whether any evidence
exists that reasonable minds could accept as to the lesser-included offense” and 2) whether
“the evidence . . . is legally sufficient to support a conviction for the lesser-included offense.”
6 S.W.3d at 469. In conducting this two-step analysis, we are required to “view the evidence
liberally in the light most favorable to the existence of the lesser-included offense without
making any judgments on the credibility of such evidence.” Id. Further, we must bear in
mind that the trial court’s duty to instruct on a lesser-included offense is not contingent upon
the lesser-included offense being consistent with the theory of the State or the defendant, as
it is “[t]he evidence, not the theories of the parties, [that] controls whether an instruction is
required.” State v. Allen, 69 S.W.3d 181, 187-88 (Tenn. 2002).

We now consider whether the trial court should have instructed the jury on the lesser-
included offense of second degree murder. As pertinent to this case, the statutory definition
of second degree murder is “[a] knowing killing of another,” Tenn. Code Ann. § 39-13-210

10
(a) (1991 & Supp. 1996), and “[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. § 39-11-302(b) (1991). Second degree murder is a result of
conduct offense and accordingly, “[t]he ‘nature of the conduct’ that causes death or the
manner in which one is killed is inconsequential under the second degree murder
statute. The statute focuses purely on the result and punishes an actor who knowingly causes
another’s death.” State v. Ducker, 27 S.W.3d 889, 896 (Tenn. 2000); see also State v. Page,
81 S.W.3d 781, 787 (Tenn. Crim. App. 2002). To sustain a finding that a defendant acted
knowingly, the State is not required to prove that the defendant wished to cause his victim’s
death but only that the defendant knew that his or her actions were reasonably certain to
cause the victim’s death. “‘A person can act knowingly irrespective of his or her desire that
the conduct or result will occur.’” State v. Kelley, 34 S.W.3d 471, 478 (Tenn. Crim. App.
2000) (quoting State v. Gray, 960 S.W.2d 598, 604 (Tenn. Crim. App. 1997)); see Tenn.
Code Ann. § 39-11-302 sentencing comm’n cmts. (“A defendant acts knowingly . . . when
he or she is . . . practically certain that the conduct will cause the result, irrespective of his
or her desire that the . . . result will occur.”)

Whether a defendant acted ‘knowingly’ in killing another is a question of fact to be
addressed by the jury. State v. Inlow, 52 S.W.3d 101, 104-05 (Tenn. Crim. App. 2000); State
v. Brunner, No. W2008-01444-CCA-R3-CD, 2009 WL 2151822, at *6 (Tenn. Crim. App.
July 17, 2009), perm. app. denied (Tenn. Nov. 23, 2009). And while a defendant’s mental
state is rarely subject to proof by direct evidence, Inlow, 52 S.W.3d at 105, it is within the
authority of the jury to infer the defendant’s intent, and, therefore, whether the defendant
acted ‘knowingly,’ “from surrounding facts and circumstances.” State v. Lowery, 667
S.W.2d 52, 57 (Tenn. 1984); see also Inlow, at 105 (“Intent . . . 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. Holland, 860 S.W.2d 53, 59 (Tenn. Crim.
App. 1993) (“‘One’s actions are circumstantial evidence of his intent.’” (quoting State v.
Barker, 642 S.W.2d 735, 737 (Tenn. Crim. App. 1982))).

Cases from other jurisdictions applying statutory law similar to ours have held that
evidence establishing the severe nature of the injuries suffered by the victim in a shaken baby
syndrome case can support a rational inference that the defendant “knowingly” harmed the
victim. In State v. Broseman, 947 S.W.2d 520 (Mo. Ct. App. 1997), a jury found a father
guilty of the second degree murder of his four-month-old son. Missouri statutory law
provided that a person commits second degree murder if he or she “[k]nowingly causes the
death of another person or, with the purpose of causing serious physical injury to another
person, causes the death of another person,” and that “[a] person acts ‘knowingly’ with
respect to the result of his conduct when he is aware that his conduct is practically certain to
cause that result.” Id. at 523-24 (quoting Mo. Rev. Stat. §§ 565.021.1(1) and 562.016.3(2)

11
(1994), respectively). The defendant argued that there was insufficient evidence to show that
he intended to cause the victim’s death. Based on medical testimony in the case that the
shaking would have been “very violent[]” the appellate court concluded that “the serious
nature of [the baby’s] injury is, in and of itself, a basis for inferring that [the defendant] knew
that his actions would be practically certain to result in [the baby’s ] death.” Id. at 524.

In State v. Gulertekin, No. 97APA12-1607, 1998 WL 831463 (Ohio Ct. App. Dec. 3,
1998), a child caretaker was convicted of the felonious assault of a baby where that offense
was statutorily defined as “knowingly . . . caus[ing] serious physical harm to another,” and
statutory law further provided that “[a] person acts knowingly, regardless of his purpose,
when he is aware that his conduct will probably cause a certain result. . . .” Id. at *20
(quoting Ohio Rev. Code Ann. §§ 2903.11 and 2901.22(B), respectively). Two doctors
attested that severe force would have been necessary to cause the victim’s injuries, which
included a skull fracture as well as other injuries consistent with shaken baby syndrome, and
the court of appeals concluded that, based upon this testimony, a rational trier of fact could
find that the defendant in that case acted knowingly. See also State v. Brunell, 615 A.2d 127,
131 (Vt. 1992) (noting that inference of intent to kill may properly be drawn where a child
is attacked solely with the hands) (citing 2 Wayne R. LaFave, et al., Substantive Criminal
Law § 7.2, at 195 (1986)).

Our Court of Criminal Appeals indicated that there was inadequate evidence to
support a second degree murder conviction in the case before us because there was no proof
that the defendant acted knowingly in causing Ashley’s death, stating “the defendant’s theory
of the case was that he did nothing to harm the victim and that she was injured when she fell
down a flight of stairs.” However, as we have noted, the evidence, not the theories of the
parties, is determinative of whether jury instruction is required with respect to a particular
offense. Allen, 69 S.W.3d at 187-88.

Upon review of the record as a whole, we find evidence from which the jury could
have reasonably inferred that the defendant was aware that his conduct was reasonably
certain to cause Ashley’s death and, therefore, that he knowingly killed her. First, it was
undisputed that Ashley was in the sole care of the defendant when she suffered her fatal
injuries. There was medical testimony from which it could reasonably be concluded that she
died as a result of being shaken; therefore, the jury could reasonably infer that the defendant
caused Ashley to die by shaking her. Furthermore, as we have noted, Dr. Schmidt attested
that “extreme, severe, out of control” shaking would have been required in order to generate
sufficient force to produce the neurological injury that Ashley suffered. Similarly, Dr.
Gunther testified that to produce shaken baby syndrome in a child of Ashley’s age “you
would have to shake [the child] extremely hard,” that “you must shake the baby so hard that
the baby’s head whips back and forth and the axons of the neurons break.” Based upon this

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medical testimony regarding the extreme amount of force used to cause Ashley’s injuries, we
believe a jury could also infer that the defendant was aware that his conduct was reasonably
certain to cause Ashley’s death and, therefore, that he knowingly killed her. Because we
conclude that there was sufficient evidence in this case from which a jury could reasonably
determine that the elements of second degree murder were established, we further hold that
the trial court erred in failing to instruct the jury as to that offense.

It necessarily follows, then, that the trial court also erred in failing to instruct the jury
as to the two remaining included offenses of reckless homicide, which is defined as “reckless
killing of another,” Tenn. Code Ann. § 39-13-215 (Supp. 1996), requiring that a person “is
aware of but consciously disregards a substantial and unjustifiable risk that . . . the result will
occur,” Tenn. Code Ann. § 39-11-302(c), and criminally negligent homicide, which is
“[c]riminally negligent conduct which results in death,” Tenn. Code Ann. § 39-13-212
(1991), requiring that a person “ought to be aware of a substantial and unjustifiable risk that
the circumstances exist or the result will occur,” Tenn. Code Ann. § 39-11-302 (d). The
mens rea of recklessness and criminal negligence are encompassed by the definition of
“knowing,” Ely, 48 S.W.3d at 723 (citing Tenn. Code Ann. § 39-11-301(a)(2)), and
therefore, having concluded that the evidence would have supported a reasonable inference
that the defendant knowingly killed Ashley, we must necessarily conclude that the evidence
would have supported a reasonable inference that the defendant acted either recklessly or
with criminal negligence.

Having determined that the trial court should have instructed the jury as to the lesser-
included offenses of second degree murder, reckless homicide, and criminally negligent
homicide, we must now determine whether the trial court’s failure to instruct the jury as to
those offenses was harmless error.

We have recognized three categories of error: 1) structural constitutional errors, which
compromise the integrity of the judicial process and require automatic reversal; 2) non-
structural constitutional errors, which require reversal unless the State proves beyond a
reasonable doubt that the error is harmless; and 3) non-constitutional errors, which do not
require reversal absent proof by the defendant that the error more probably than not affected
the judgment or would result in prejudice to the judicial process. State v. Rodriguez, 254
S.W.3d 361, 371-72 (Tenn. 2008). The failure of a trial court to instruct the jury as to a
lesser-included offense is a non-structural constitutional error, id. at 371 n.16 (citing State
v. Page, 184 S.W.3d 223, 230 (Tenn. 2006)), and accordingly, the State has the burden of
showing that the error is harmless beyond a reasonable doubt. As we noted in Rodriguez,
whether error is harmless is not determined by the existence of sufficient evidence to affirm
a conviction or by the belief that the jury rendered the correct verdict. Rather, “the crucial
consideration is what impact the error may reasonably be taken to have had on the jury’s

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decision-making. . . .” Rodriguez, 254 S.W.3d at 372 (citations omitted); see also Allen, 69
S.W.3d 181, 190 (Tenn. 2002) (noting that proper test in harmless error analysis of non-
structural constitutional error is “whether it appears beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained” (quoting Neder v. United States,
527 U.S. 1, at 15 (1999))). In assessing whether an error did not affect the trial’s outcome
beyond a reasonable doubt, we must “conduct a thorough examination of the record,
including the evidence presented at trial, the defendant’s theory of defense, and the verdict
returned by the jury.” Allen, 69 S.W.3d at 191.

In the instant case, the jury convicted the defendant of aggravated child abuse and
felony murder in the perpetration of aggravated child abuse, which required, at least, a
finding that the defendant “knowingly, other than by accidental means, treat[ed] a child under
eighteen (18) years of age in such a manner as to inflict injury.” Tenn. Code. Ann. § 39-15-
401(a). However, as we stated in Burns, “[w]hether sufficient evidence supports a
conviction of the charged offense does not affect the trial court’s duty to instruct on the lesser
offense if evidence also supports a finding of guilt on the lesser offense.” 6 S.W.3d at 472;
see also State v. Monger, No. W2000-00489-CCA-R3-CD, 2001 WL 1011763, at *15 (Tenn.
Crim. App. Aug. 27, 2001), perm. app. granted, cause remanded (Feb. 11, 2002) (noting that
the absence of intent to commit aggravated child abuse is not an essential element of the
lesser-included offenses of felony murder, and establishment of that intent is immaterial in
determining whether there is sufficient evidence for conviction of such lesser-included
offenses). Thus, a finding by the jury that the evidence established the elements of
aggravated child abuse would not preclude the jury from convicting the defendant of the
lesser-included offenses of felony murder. Had it been properly instructed as to the lesser-
included offenses, based upon the evidence presented, the jury could have alternatively found
that the defendant was aware that his actions were reasonably certain to cause Ashley’s
death, supporting a conviction of second degree murder; that he was aware of, but
consciously disregarded, a substantial risk that Ashley’s death would occur, supporting a
conviction of reckless homicide; or that he ought to have been aware of a substantial and
unjustifiable risk that her death would occur, supporting a conviction of criminally negligent
homicide. As we stated in Ely,

[when] the evidence clearly was sufficient to support a
conviction for second degree murder, reckless homicide, or
criminally negligent homicide, [and] the jury was not given an
opportunity to reach a decision on these offenses[,] . . . we
cannot say that the failure to instruct on the lesser-included
offenses was harmless beyond a reasonable doubt.

48 S.W.3d at 727; see also Locke, 90 S.W.3d at 673.

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 In summary, we hold that the trial court erred in failing to instruct the jury as to the
lesser-included offenses of second degree murder, reckless homicide, and criminally
negligent homicide and that it has not been established that such error was harmless beyond
a reasonable doubt. Thus, the trial court’s error in this regard warrants reversal of the
defendant’s conviction for felony murder by perpetration of aggravated child abuse and a
new trial on that issue.

Conclusion

For the reasons stated, it is our conclusion that the trial court erred by failing to
instruct the jury on second degree murder, reckless homicide, and criminally negligent
homicide as lesser-included offenses of felony murder. We further conclude that it has not
been shown that such error was harmless beyond a reasonable doubt. Accordingly, the
defendant’s conviction for felony murder is reversed, and the judgment of the Court of
Criminal Appeals is reversed. This case is remanded to the trial court for a new trial
consistent with this opinion. Costs of the appeal are taxed to the State.

_____________________________
SHARON G. LEE, JUSTICE

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