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State v. Henderson3/7/2001
. 1995); Tenn. R. App. P. 36(a). Moreover, Appellants have failed to identify which of the two prosecutors gave the allegedly improper argument and they have failed to identify even a single statement that they claim was improper. It is not the function of this Court to speculate as to what portions of the arguments Appellants would contend were improper. By failing to include appropriate citations to the record, Appellants have waived this issue. Tenn. Ct. Crim. App. R. 10(b).
XX. FAILURE TO INSTRUCT ON A LESSER INCLUDED OFFENSE
Appellant Sutton contends that the trial court erred when it failed to instruct the jury on the lesser included offense of facilitation of a felony. We disagree.
Tennessee Code Annotated section 39-11-403 provides in relevant part that
A person is criminally responsible for the facilitation of a felony if, knowing that another intends to commit a specific felony, but without the intent required for criminal responsibility under § 39-11-402(2), the person knowingly furnishes substantial assistance in the commission of the felony. Tenn. Code Ann. § 39-11-403(a) (1991).
As previously noted, the intent required for criminal responsibility under section 39-11-402(2) is "intent to promote or assist the commission of the offense, or to benefit in the proceeds or results of the offense." Tenn. Code Ann. § 39-11-402(2) (1991).
In State v. Burns, 6 S.W.3d 453 (Tenn.1999) the Tennessee Supreme Court concluded that an offense is a lesser-included offense of another if:
(a) all of its statutory elements are included within the statutory elements of the offense charged; or
(b) it fails to meet the definition in part (a) only in the respect that it contains a statutory element or elements establishing
(1) a different mental state indicating a lesser kind of culpability; and/or
(2) a less serious harm or risk of harm to the same person, property or public interest; or
(c) it consists of
(1) facilitation of the offense charged or of an offense that otherwise meets the definition of lesser-included offense in part (a) or (b); or
(2) an attempt to commit the offense charged or an offense that otherwise meets the definition in part (a) or (b); or
(3) solicitation to commit the offense charged or an offense that otherwise meets the definition of lesser-included offense in part (a) or (b). Id. at 466-67.
The supreme court thus concluded, and recently reiterated, that facilitation is a lesser-included offense when a defendant is charged with criminal responsibility for the conduct of another. Id. at 470; State v. Fowler, 23 S.W.3d 285, 288 (Tenn. 2000).
"This does not mean, however, that an instruction must be given simply because an offense is a lesser-included offense of another." Fowler, 23 S.W.3d at 288. "First, the trial court must determine whether `any evidence exists that reasonable minds could accept as to the lesser included offense.'" Id. at 289 (citing Burns, 6 S.W.3d at 469). "Second, the trial court must determine whether the evidence viewed in this light is legally sufficient to support a conviction for the lesser-included offense." Id.
In this case, there is absolutely no evidence in the record from which a rational jury could conclude that Dellinger forced Sutton to participate in the murder against his will. Further, we hold that a rational jury could not conclude from the evidence in the record that Sutton was merely a bystander during the murder of Griffin. The State's theory of the case, which was supported by extensive proof, was that Dellinger and Sutton
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