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State v. Garrett12/1/2005
elevant to this case, an individual commits the offense of arson "who knowingly damages any structure by means of a fire or explosion . . . ith intent to destroy or damage any structure . . . for any unlawful purpose." Tenn. Code Ann. § 39-14-301(a)(2) (1991 & 2003). The offense requires an act to be done "knowingly," which can refer to all three conduct elements: (1) nature of conduct, (2) circumstances surrounding conduct, and (3) result of conduct. See id. § 39-11-302(b) ("`Knowing' 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."); Page, 81 S.W.3d at 787.
In State v. Gene Shelton Rucker, Jr., No. E2002-02101-CCA-R3-CD (Tenn. Crim. App., Knoxville, Dec. 9, 2004), perm. app. denied (Tenn. 2005), this court considered whether aggravated arson is a result-of- conduct offense. Relying on the supreme court's description of result- of-conduct offenses in State v. Ducker, 27 S.W.3d 889, 895-96 (Tenn. 2000), we reasoned,
Under our arson statutes, a person commits aggravated arson "who commits arson" under additional, specified circumstances necessary to elevate the arson into aggravated arson. Tenn. Code Ann. § 39-14-302(a)(1), (2) (2003). Simple arson is defined in terms of a person "who knowingly damages any structure by means of a fire or explosion." Id. § 39-14-301(a) (2003) (emphasis added). Grammatically speaking, the word "knowingly" modifies "damages," which refers to the result of the person's conduct. Nonetheless, the arson statute does not focus purely on the result - that is, damage to a structure. Instead, the nature of the conduct - creating a fire or explosion - that causes the damage to the structure is consequential and central to the offense. Measured according to the parameters set forth in Ducker, arson and aggravated arson, therefore, are not result-of-conduct offenses; they do not require that a defendant act with an awareness that setting a fire or creating an explosion is reasonably certain to cause damage to a structure.
Gene Shelton Rucker, Jr., slip op. at 12.
The trial court in the instant case did not define the mens rea element of arson in terms of nature of the defendant's conduct. The court's charge in this case defined "knowingly" only with reference to the result of the defendant's conduct; that is, "act with an awareness that his conduct is reasonably certain to cause the death of the alleged victim." Consequently, in our opinion, the jury was incorrectly instructed on the "knowing" element of arson. The question then becomes whether the instructional error was harmless.
"The misstatement of an element in jury instructions is subject to constitutional harmless error analysis." State v. Faulkner, 154 S.W.3d 48, 60 (Tenn. 2005) (citing Pope v. Illinois, 481 U.S. 497, 501-03, 107 S.Ct. 1918 (1987)). Likewise, " he failure to instruct the jury on a material element of an offense is a constitutional error subject to harmless error analysis." Id. Regardless whether the error in this case is classified as a misstatement or an omission of an element, the error qualifies as constitutional in nature. That said, in our view the instructional error was harmless beyond a reasonable doubt.
By defining the mens rea element of arson solely in terms of result-of-conduct, the trial court did not lessen the state's burden of proof. On the contrary, the instruction increased the state's burden by requiring proof beyond a reas
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