Burns test in Tennessee

2017The State first argues that the Defendant cannot show that a clear and unequivocal rule of law was breached by the omission of the instruction because at the time of his March 2016 trial, it was unclear whether part (b) of the State v. Burns, 6 S.W.3d 453 (Tenn. 1999), test for lesser-included offenses survived the enactment of Tennessee Code -12- Annotated section 40-18-110(f) and (g), which codified a lesser-included offense test that included parts (a) and (c), but omitted part (b) of the Burns test.

2017The State first argues that the Defendant cannot show that a clear and unequivocal rule of law was breached by the omission of the instruction because at the time of his March 2016 trial, it was unclear whether part (b) of the State v. Burns, 6 S.W.3d 453 (Tenn. 1999), test for lesser-included offenses survived the enactment of Tennessee Code -12- Annotated section 40-18-110(f) and (g), which codified a lesser-included offense test that included parts (a) and (c), but omitted part (b) of the Burns test.

2019However, that case was designated not for citation by the Tennessee Supreme Court. - 12 - included offenses of felony murder under the Burns test but did not specifically consider voluntary manslaughter. 48 S.W.3d 710, 720 (Tenn. 2001).

2019However, that case was designated not for citation by the Tennessee Supreme Court. - 12 - included offenses of felony murder under the Burns test but did not specifically consider voluntary manslaughter. 48 S.W.3d 710, 720 (Tenn. 2001).

2014Generally, “evidence that is sufficient ‘to warrant an instruction on the greater offense also will support an instruction on a lesser offense under Part (a) of the Burns test.’” Banks, 271 S.W.3d at 125 (quoting State v. Allen, 69 S.W.3d 181,188 (Tenn. 2002)).

2014Generally, “evidence that is sufficient ‘to warrant an instruction on the greater offense also will support an instruction on a lesser offense under Part (a) of the Burns test.’” Banks, 271 S.W.3d at 125 (quoting State v. Allen, 69 S.W.3d 181,188 (Tenn. 2002)).

2017Bowles, 52 S.W.3d at 79 ; see Tenn. Code Ann. § 40-18-110 (f) (effectively codifying parts (a) and (c) of the Burns test).

2017Bowles, 52 S.W.3d at 79 ; see Tenn. Code Ann. § 40-18-110 (f) (effectively codifying parts (a) and (c) of the Burns test).

2018App., Jackson, Oct. 27, 2008) (“[T]he law is settled that attempted voluntary manslaughter is a lesser included offense of attempted first degree murder under part (b) of the Burns test.” (citing State v. Dominy, 6 S.W.3d 472, 477 (Tenn. 1999)); State v. Hezekiah Cooper, No. W2005-02481-CCA-R3-CD, slip op. at 15 (Tenn. Crim.

2018App., Jackson, Oct. 27, 2008) (“[T]he law is settled that attempted voluntary manslaughter is a lesser included offense of attempted first degree murder under part (b) of the Burns test.” (citing State v. Dominy, 6 S.W.3d 472, 477 (Tenn. 1999)); State v. Hezekiah Cooper, No. W2005-02481-CCA-R3-CD, slip op. at 15 (Tenn. Crim.

2012However, “part (c) of the Burns test, . . . applies ‘to situations in which a defendant attempts to commit . . . either the crime charged or a lesser-included offense, but no proof exists of the completion of the crime.’” State v. Marcum, 109 S.W.3d 300, 303 (Tenn. 2003) (quoting State v. Ely, 48 S.W.3d 710, 719 ) (Tenn. 2001)) (emphasis added).

2012However, “part (c) of the Burns test, . . . applies ‘to situations in which a defendant attempts to commit . . . either the crime charged or a lesser-included offense, but no proof exists of the completion of the crime.’” State v. Marcum, 109 S.W.3d 300, 303 (Tenn. 2003) (quoting State v. Ely, 48 S.W.3d 710, 719 ) (Tenn. 2001)) (emphasis added).

2010The appellant contends that although State v. Locke, 90 S.W.3d 663, 672 (Tenn. 2002), provides that facilitation of first degree murder is not an immediate lesser include offense of first degree murder under part (b) of the Burns test, facilitation is an immediate lesser included offense under Burns, part (c), and should be considered by the jury before second degree murder.

2010The appellant contends that although State v. Locke, 90 S.W.3d 663, 672 (Tenn. 2002), provides that facilitation of first degree murder is not an immediate lesser include offense of first degree murder under part (b) of the Burns test, facilitation is an immediate lesser included offense under Burns, part (c), and should be considered by the jury before second degree murder.

2022“Subsection (f) effectively codified parts (a) and (c) of the Burns test.” State v. Howard, 504 S.W.3d 260, 269 (Tenn. 2016).

2022“Subsection (f) effectively codified parts (a) and (c) of the Burns test.” State v. Howard, 504 S.W.3d 260, 269 (Tenn. 2016).

2007Bowles, 52 S.W.3d at 79-80 (holding that theft is a lesser included offense of robbery); State v. Lewis, 36 S.W.3d 88, 99-100 (Tenn. Crim.

2007Bowles, 52 S.W.3d at 79-80 (holding that theft is a lesser included offense of robbery); State v. Lewis, 36 S.W.3d 88, 99-100 (Tenn. Crim.

2006In State v. Rush, 50 S.W.3d 424 (Tenn. 2001), the Tennessee Supreme Court held that reckless aggravated assault was not a lesser-included offense of attempted second degree murder under the Burns test.

2006In State v. Rush, 50 S.W.3d 424 (Tenn. 2001), the Tennessee Supreme Court held that reckless aggravated assault was not a lesser-included offense of attempted second degree murder under the Burns test.

2010Richmond, 90 S.W.3d at 660 ; see also State v. Oscar Reynolds, No. W2002-01201-CCA-R3-CD, 2003 WL 21338969 , at *2 (Tenn. Crim.

2010Richmond, 90 S.W.3d at 660 ; see also State v. Oscar Reynolds, No. W2002-01201-CCA-R3-CD, 2003 WL 21338969 , at *2 (Tenn. Crim.

2004In State v. Swindle, 30 S.W.3d 289, 293 (Tenn. 2000), our Supreme Court held that Class B misdemeanor assault was a lesser-included offense of aggravated sexual battery under part (b)(2) of the Burns test.

2004In State v. Swindle, 30 S.W.3d 289, 293 (Tenn. 2000), our Supreme Court held that Class B misdemeanor assault was a lesser-included offense of aggravated sexual battery under part (b)(2) of the Burns test.

2012Part (b)(1) of the Burns test requires “ a different mental state indicating a lesser kind of culpability.” For second degree murder, a person must “knowingly” commit the killing; for assisted suicide, a person must act “intentionally.” An “intentional” mental state is not lesser than “knowing.” See State v. Honeycutt, 54 S.W.3d 762, 771 (Tenn. 2001).

2012Part (b)(1) of the Burns test requires “ a different mental state indicating a lesser kind of culpability.” For second degree murder, a person must “knowingly” commit the killing; for assisted suicide, a person must act “intentionally.” An “intentional” mental state is not lesser than “knowing.” See State v. Honeycutt, 54 S.W.3d 762, 771 (Tenn. 2001).

2010See State v. Ely, 48 S.W.3d 710, 720-722 (Tenn. 2001) (holding that second degree murder is a lesser included offense of first degree felony murder under part (b) of the Burns test); State v. Williams, 977 S.W.2d 101, 106 (Tenn. 1998) (noting that second degree murder is the immediate lesser -4- included offense of first degree murder); State v. Thomas Gatewood, No. M2001-01871-CCA-R3-CD, 2002 Tenn. Crim.

2010See State v. Ely, 48 S.W.3d 710, 720-722 (Tenn. 2001) (holding that second degree murder is a lesser included offense of first degree felony murder under part (b) of the Burns test); State v. Williams, 977 S.W.2d 101, 106 (Tenn. 1998) (noting that second degree murder is the immediate lesser -4- included offense of first degree murder); State v. Thomas Gatewood, No. M2001-01871-CCA-R3-CD, 2002 Tenn. Crim.

2016See Watkins, 362 S.W.3d at 557 . - 48 - This court has previously held that the 2009 amendment of Tennessee Code Annotated section 40-18-110 abrogated part (b) of the Burns test.

2016See Watkins, 362 S.W.3d at 557 . - 48 - This court has previously held that the 2009 amendment of Tennessee Code Annotated section 40-18-110 abrogated part (b) of the Burns test.

2004In State v. Elkins, 83 S.W.3d 706, 711 (Tenn. 2002), the Tennessee Supreme Court applied the Burns test and held that child abuse is a lesser-included offense of rape of a child and must be so instructed if the evidence presented at the trial is legally sufficient to support a conviction of child abuse.

2004In State v. Elkins, 83 S.W.3d 706, 711 (Tenn. 2002), the Tennessee Supreme Court applied the Burns test and held that child abuse is a lesser-included offense of rape of a child and must be so instructed if the evidence presented at the trial is legally sufficient to support a conviction of child abuse.

2000See State v. Stokes, 24 S.W.3d 303 (Tenn. 2000) (Burns applied to determine lesser-included offense in case which was in appellate “pipeline” prior to release of supreme court’s Burns opinion); State v. Jumbo Kuri, No. M1999-00638-CCA-R3-CD, 2000 WL 680373 at *5 (Tenn. Crim.

2000See State v. Stokes, 24 S.W.3d 303 (Tenn. 2000) (Burns applied to determine lesser-included offense in case which was in appellate “pipeline” prior to release of supreme court’s Burns opinion); State v. Jumbo Kuri, No. M1999-00638-CCA-R3-CD, 2000 WL 680373 at *5 (Tenn. Crim.

2001Part (a) of the Burns test uses a statutory elements approach consistent with that outlined in Howard v. State, 578 S.W.2d 83, 85 (Tenn. 1979).

2001Part (a) of the Burns test uses a statutory elements approach consistent with that outlined in Howard v. State, 578 S.W.2d 83, 85 (Tenn. 1979).

2000This same result would be reached under Howard v. State, 578 S.W.2d 83 (Tenn.1979), *306 which set forth the statutory elements test incorporated into part (a) of the Burns test. 3 .We note, in passing, that an instruction on statutory rape would have also been improper under the "lesser grade or class” analysis set forth in our decision in State v. Trusty, 919 S.W.2d 305 (Tenn.1996), overruled by State v. Dominy, 6 S.W.3d 472 (Tenn.1999).

2000This same result would be reached under Howard v. State, 578 S.W.2d 83 (Tenn.1979), *306 which set forth the statutory elements test incorporated into part (a) of the Burns test. 3 .We note, in passing, that an instruction on statutory rape would have also been improper under the "lesser grade or class” analysis set forth in our decision in State v. Trusty, 919 S.W.2d 305 (Tenn.1996), overruled by State v. Dominy, 6 S.W.3d 472 (Tenn.1999).

2016App. Apr. 23, 2015) no perm. app. filed (concluding that the exclusion of part (b) of the Burns test from Tennessee Code Annotated section 40-18-110(f) abrogates part (b) and “significantly reduces the number of lesser included offenses a trial court will be required to charge”); State v. Fayne, 451 S.W.3d 362 , 368 n.5 (Tenn. 2014) (noting that “[s]ignificantly, the statutory definition set out in section 40-18-110(f) does not include part (b) of the Burns test,” but pretermitting the issue of its abrogation because the offense at issue was a lesser included offense under part (a) of the Burn

2016App. Apr. 23, 2015) no perm. app. filed (concluding that the exclusion of part (b) of the Burns test from Tennessee Code Annotated section 40-18-110(f) abrogates part (b) and “significantly reduces the number of lesser included offenses a trial court will be required to charge”); State v. Fayne, 451 S.W.3d 362 , 368 n.5 (Tenn. 2014) (noting that “[s]ignificantly, the statutory definition set out in section 40-18-110(f) does not include part (b) of the Burns test,” but pretermitting the issue of its abrogation because the offense at issue was a lesser included offense under part (a) of the Burn

2014Banks, 271 S.W.3d at 125 ; State v. Wilson, 211 S.W.3d 714, 721 (2007); see also State v. Marcum, 109 S.W.3d 300, 303-04 (Tenn. 2003); State v. Ely, 48 S.W.3d 710, 719 (Tenn. 2001).

2014Banks, 271 S.W.3d at 125 ; State v. Wilson, 211 S.W.3d 714, 721 (2007); see also State v. Marcum, 109 S.W.3d 300, 303-04 (Tenn. 2003); State v. Ely, 48 S.W.3d 710, 719 (Tenn. 2001).

2007However, part (c) of the Burns test is limited to “‘situations in which a defendant attempts to commit, or solicits another to commit, either the crime charged or a lesser-included offense, but no proof exists of the completion of the crime.’” State v. Robinson, 146 S.W.3d 469, 487 (Tenn. 2004) (quoting Ely, 48 S.W.3d at 717 ).

2007However, part (c) of the Burns test is limited to “‘situations in which a defendant attempts to commit, or solicits another to commit, either the crime charged or a lesser-included offense, but no proof exists of the completion of the crime.’” State v. Robinson, 146 S.W.3d 469, 487 (Tenn. 2004) (quoting Ely, 48 S.W.3d at 717 ).

2005Id. at 135 .

2005Id. at 135 .

2004Id. at 525 .

2004Id. at 525 .

2015In other words, if part (b) of -12- the Burns test was left out of the statutory language, we must presume that it was an intentional act on the part of the Legislature.4 “The power to define what shall constitute a criminal offense and to assess punishment for a particular crime is vested in the legislature.” State v. Burdin, 924 S.W.2d 82, 87 (Tenn. 1996) (citing State v. Hale, 840 S.W.2d 307, 314 (Tenn. 1992); Hunter v. State, 496 S.W.2d 900, 902-03 (Tenn. 1972); Woods v. State, 169 S.W. 558 , 559-60 (Tenn. 1914)); see also State v. Toole, 457 S.W.2d 269 (Tenn. 1970) (holding that the Legis

2015In other words, if part (b) of -12- the Burns test was left out of the statutory language, we must presume that it was an intentional act on the part of the Legislature.4 “The power to define what shall constitute a criminal offense and to assess punishment for a particular crime is vested in the legislature.” State v. Burdin, 924 S.W.2d 82, 87 (Tenn. 1996) (citing State v. Hale, 840 S.W.2d 307, 314 (Tenn. 1992); Hunter v. State, 496 S.W.2d 900, 902-03 (Tenn. 1972); Woods v. State, 169 S.W. 558 , 559-60 (Tenn. 1914)); see also State v. Toole, 457 S.W.2d 269 (Tenn. 1970) (holding that the Legis

2015In other words, if part (b) of -12- the Burns test was left out of the statutory language, we must presume that it was an intentional act on the part of the Legislature.4 “The power to define what shall constitute a criminal offense and to assess punishment for a particular crime is vested in the legislature.” State v. Burdin, 924 S.W.2d 82, 87 (Tenn. 1996) (citing State v. Hale, 840 S.W.2d 307, 314 (Tenn. 1992); Hunter v. State, 496 S.W.2d 900, 902-03 (Tenn. 1972); Woods v. State, 169 S.W. 558 , 559-60 (Tenn. 1914)); see also State v. Toole, 457 S.W.2d 269 (Tenn. 1970) (holding that the Legis

2015In other words, if part (b) of -12- the Burns test was left out of the statutory language, we must presume that it was an intentional act on the part of the Legislature.4 “The power to define what shall constitute a criminal offense and to assess punishment for a particular crime is vested in the legislature.” State v. Burdin, 924 S.W.2d 82, 87 (Tenn. 1996) (citing State v. Hale, 840 S.W.2d 307, 314 (Tenn. 1992); Hunter v. State, 496 S.W.2d 900, 902-03 (Tenn. 1972); Woods v. State, 169 S.W. 558 , 559-60 (Tenn. 1914)); see also State v. Toole, 457 S.W.2d 269 (Tenn. 1970) (holding that the Legis

2015In other words, if part (b) of -12- the Burns test was left out of the statutory language, we must presume that it was an intentional act on the part of the Legislature.4 “The power to define what shall constitute a criminal offense and to assess punishment for a particular crime is vested in the legislature.” State v. Burdin, 924 S.W.2d 82, 87 (Tenn. 1996) (citing State v. Hale, 840 S.W.2d 307, 314 (Tenn. 1992); Hunter v. State, 496 S.W.2d 900, 902-03 (Tenn. 1972); Woods v. State, 169 S.W. 558 , 559-60 (Tenn. 1914)); see also State v. Toole, 457 S.W.2d 269 (Tenn. 1970) (holding that the Legis

2015In other words, if part (b) of -12- the Burns test was left out of the statutory language, we must presume that it was an intentional act on the part of the Legislature.4 “The power to define what shall constitute a criminal offense and to assess punishment for a particular crime is vested in the legislature.” State v. Burdin, 924 S.W.2d 82, 87 (Tenn. 1996) (citing State v. Hale, 840 S.W.2d 307, 314 (Tenn. 1992); Hunter v. State, 496 S.W.2d 900, 902-03 (Tenn. 1972); Woods v. State, 169 S.W. 558 , 559-60 (Tenn. 1914)); see also State v. Toole, 457 S.W.2d 269 (Tenn. 1970) (holding that the Legis

2015In other words, if part (b) of -12- the Burns test was left out of the statutory language, we must presume that it was an intentional act on the part of the Legislature.4 “The power to define what shall constitute a criminal offense and to assess punishment for a particular crime is vested in the legislature.” State v. Burdin, 924 S.W.2d 82, 87 (Tenn. 1996) (citing State v. Hale, 840 S.W.2d 307, 314 (Tenn. 1992); Hunter v. State, 496 S.W.2d 900, 902-03 (Tenn. 1972); Woods v. State, 169 S.W. 558 , 559-60 (Tenn. 1914)); see also State v. Toole, 457 S.W.2d 269 (Tenn. 1970) (holding that the Legis

2015In other words, if part (b) of -12- the Burns test was left out of the statutory language, we must presume that it was an intentional act on the part of the Legislature.4 “The power to define what shall constitute a criminal offense and to assess punishment for a particular crime is vested in the legislature.” State v. Burdin, 924 S.W.2d 82, 87 (Tenn. 1996) (citing State v. Hale, 840 S.W.2d 307, 314 (Tenn. 1992); Hunter v. State, 496 S.W.2d 900, 902-03 (Tenn. 1972); Woods v. State, 169 S.W. 558 , 559-60 (Tenn. 1914)); see also State v. Toole, 457 S.W.2d 269 (Tenn. 1970) (holding that the Legis

2015Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, 433 S.W.3d 512, 517 (Tenn. 2014) (citing Mills v. Fulmarque, Inc., 360 S.W.3d 362, 368 (Tenn. 2012)).

2015Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, 433 S.W.3d 512, 517 (Tenn. 2014) (citing Mills v. Fulmarque, Inc., 360 S.W.3d 362, 368 (Tenn. 2012)).