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State v. Standridge9/30/2003
regarding the jury instructions at trial or in his motion for new trial, arguably waiving this issue on appeal. See Tenn. R. App. P. 3(e). Nevertheless, the appellant's complaint is without merit.
It is undisputed that a defendant has a constitutional right to have the jury completely and accurately instructed on the law, and the failure to so instruct the jury deprives the defendant of the constitutional right to a trial by jury. See State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). In analyzing the jury charge, we must be mindful that " ury instructions must be read as a whole rather than in isolation." State v. Belser, 945 S.W.2d 776, 782 (Tenn. Crim. App. 1996).
In State v. Page, 81 S.W.3d 781, 786 (Tenn. Crim. App. 2002), this court explained that there are four culpable mental states in Tennessee, namely intentional, knowing, reckless, and criminal negligence, and that the applicable mental state is generally provided for within the statute defining the offense. Each mental state refers to two or three possible conduct elements: "(1) nature of defendant's conduct, (2) circumstances surrounding the defendant's conduct; and (3) result of the defendant's conduct." Id. at 787. The applicable conduct element depends upon the offense. Id.
In the instant case, the trial court instructed the jury in accordance with the definitions provided in our criminal code. Tennessee Code Annotated section 39-11-302(a) (1997) provides that "` ntentional' refers to a person who 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." Additionally, "` nowing' refers to a person who acts knowingly with respect to the conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist. 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." Id. at (b). Furthermore, " hen acting knowingly suffices to establish an element, that element is also established if a person acts intentionally." Tenn. Code Ann. § 39-11-301(c) (1997). As we noted earlier, the theft statute requires a mental state of "knowingly." See Tenn. Code Ann. § 39-14-103.
The appellant, citing our recent decision in Page, supra, argues that the trial court erroneously instructed the jury on "all three `conduct' types . . . in the definitions to both `knowingly' and `intentionally'" in relation to theft. The appellant claims that theft is " ost likely" a result of conduct crime and that the trial court should have instructed the jury accordingly. However, this court has recently concluded that "theft of property is not a result of conduct offense because the conduct proscribed is not criminalized because of its result, but instead the conduct is criminal because of the circumstances surrounding the taking of the property of another." State v. Tracy F. Leonard, No. M2001-00368-CCA-R3-CD, 2002 WL 1987963, at *26 (Tenn. Crim. App. at Nashville, Aug. 28, 2002), perm. to appeal denied, (Tenn. 2002); see also State v. Marcus Webb, No. W2002-00614-CCA-R3-CD, 2003 WL 214451, at *4 (Tenn. Crim. App. at Jackson, Jan. 29, 2003), perm. to appeal denied, (Tenn. 2003). We find no reversible error in the instruction given in the instant case.
D. Sentencing
Finally, the appellant argues that the trial court, after revoking his probation, erred by requiring him to serve his sentence of "split confinement" "day for day." The State concedes the court's error in ordering the sentence to be served "day for day," corr
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