FILED

February 9, 1999

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

NOVEMBER 1998 SESSION

STATE OF TENNESSEE, )

)

Appellee, ) C.C.A.No. 03C01-9710-CR-00454

)

vs. ) Washington County

)

ROY D. NELSON, JR., ) Hon. Lynn W. Brown, Judge 

)

Appellant. ) (Burglary, Aggravated Burglary,

) Aggravated Arson, Possession of

Marijuana)

FOR THE APPELLANT: FOR THE APPELLEE:

DONALD E. SPURRELL JOHN KNOX WALKUP

Attorney at Law Attorney General & Reporter

128 E. Market St.

Johnson City, TN 37604 ELIZABETH B. MARNEY

Assistant Attorney General

425 Fifth Ave. N., 2d Floor

Nashville, TN 37243-0493

DAVID CROCKETT

District Attorney General

JOE C. CRUMLEY

Asst. District Attorney General

P.O. Box 38

Jonesborough, TN 37659

OPINION FILED:________________

AFFIRMED

JAMES CURWOOD WITT, JR., JUDGE
1Total fines of $60,350 were imposed. 

2

OPINION

The defendant, Roy D. Nelson, stands convicted of burglary,

aggravated burglary, aggravated arson and possession of marijuana as a result of

his efforts to blow up his ex-wife's home. Nelson received his convictions at the

conclusion of a jury trial in the Washington County Criminal Court. A Range III

offender, Nelson is presently serving an effective 62-year sentence in the

Department of Correction for his crimes.1 In this direct appeal, Nelson claims he

was improperly convicted of aggravated arson because he, rather than another

person, suffered the serious bodily injury relied upon to elevate the offense from

arson to aggravated arson. Having reviewed the appellate record, the arguments

of the parties and the applicable law, we affirm the judgment of the trial court.

I

Upon initial review of the record, we discovered that Nelson's notice

of appeal was filed two and a half months after the trial court entered its order

overruling the motion for new trial. In order to be timely, the notice of appeal should

have been filed and received by the clerk of the trial court within 30 days after entry

of the order denying a new trial. Tenn. R. App. P. 4(a), (c). If a defendant fails to

comply with the Rules of Appellate Procedure, the appellate court may waive timely

filing in the interest of justice. Tenn. R. App. P. 4(a). Equally, the appellate court

may choose not to allow an untimely appeal in a criminal case. See, e.g., State v.

Cleotha Nash, No. 02C01-9701-CC-00026, slip op. at 3 (Tenn. Crim. App., Jackson,

Feb. 18, 1998), perm. app. denied (Tenn. 1998); State v. Austin Kipling Stratton,

No. 01C01-9611-CC-00472, slip op. at 2-3 (Tenn. Crim. App., Nashville, Dec. 4,

1997). 
3

Unlike many cases in which a notice of appeal is untimely filed, Nelson

has not filed a motion to waive timely filing of the notice of appeal or any similar

pleading. Typically, such filing would contain acknowledgment that the notice of

appeal was not timely filed and would include verified factual and/or legal assertions

why the interests of justice dictate that we should waive timely filing of the notice of

appeal. See Cleotha Nash, slip op. at 3 (appeal dismissed where neither record nor

allegation by the defendant provided sufficient basis for waiver of timely filing of

notice of appeal).

Despite Nelson's shortcoming in this regard, we somewhat reluctantly

waive the timely filing requirement for the notice of appeal. The issue Nelson has

raised on appeal is a novel one, and as best we can tell, is an issue of first

impression in Tennessee. It is better addressed now on direct appeal, rather than

in a delayed appeal following a post-conviction case in which defense counsel might

be found ineffective for failing to perfect a timely direct appeal. In the interest of

justice, we waive the requirement of timely filing of the notice of appeal. Tenn. R.

App. P. 4. We admonish counsel and other appealing parties, however, that this

result is not a preordained conclusion, and we expect acknowledgment and an

explanation when counsel has failed to comply with the Rules of Appellate

Procedure.

II

Nelson claims his aggravated arson conviction cannot be sustained

because the serious bodily injury used to elevate the crime from simple arson was

his own, not another person's. In pertinent part, "[a] person commits aggravated

arson who commits arson as defined in § 39-14-301 or § 39-14-303 . . . [w]hen any

person, including firefighters and law enforcement officials, suffers serious bodily

injury as a result of the fire or explosion." Tenn. Code Ann. § 39-14-302(a)(2)
4

(1997) (emphasis added). "'Person' includes the singular and plural and means and

includes any individual, firm, partnership, copartnership, association, corporation,

governmental subdivision or agency, or other organization or other legal entity, or

any agent or servant thereof[.]" Tenn. Code Ann. § 39-11-106(a)(27) (1997).

The aggravated arson statute is anomalous. Elsewhere in the criminal

code, offenses which are aggravated or especially aggravated by the infliction of

bodily injury or serious bodily injury are worded differently. See Tenn. Code Ann.

§ 39-13-102(a)(1)(A) (1997) (aggravated assault) ("serious bodily injury to another");

Tenn. Code Ann. § 39-13-304(a)(4) (1997) (aggravated kidnapping) ("victim suffers

bodily injury"); Tenn. Code Ann. § 39-13-305(a)(4) (1997) (especially aggravated

kidnapping) ("victim suffers serious bodily injury"); Tenn. Code Ann. § 39-13-

402(a)(2) (1997) (aggravated robbery) ("victim suffers serious bodily injury"); Tenn.

Code Ann. § 39-13-403(a) (1997) (especially aggravated robbery) ("victim suffers

serious bodily injury"); Tenn. Code Ann. § 39-13-502(a)(2) (1997) (aggravated rape)

("defendant causes bodily injury to the victim"); Tenn. Code Ann. § 39-13-504(a)(2)

(1997) (aggravated sexual battery) ("defendant causes bodily injury to the victim");

Tenn. Code Ann. § 39-14-404(a)(2) (1997) (especially aggravated burglary) ("victim

suffers serious bodily injury"). The aggravated arson statute stands alone raising

the possibility of a defendant's conviction of the aggravated offense based upon his

own serious bodily injury.

In examining the criminal code, we find no indication that we should

depart from the plain meaning of the definition of "person" and the common,

ordinary usage of the word "any." Thus, we believe "any person" who suffers

serious bodily injury includes the defendant. We are further persuaded by the

wording of the aggravated arson statute itself, which provides that "a person" is

guilty of the crime if certain elements are met, including that "any person" (not "any
5

other person") suffers serious bodily injury. Unlike other criminal code provisions,

the aggravated arson statute does not require injury to a "victim" or "another" as an

element of the crime. Furthermore, this result is consistent with the unique

character of the crime of arson. More so than the other offenses in the criminal

code which are aggravated by some level of bodily injury, arson as a general

proposition creates a dangerous exigency which has the potential to endanger the

criminal himself, in addition to any targeted individual, members of the public, and

rescue personnel.

Thus, we find no flaw with the defendant's conviction of aggravated

arson based upon his own serious bodily injury from the explosion he created. The

judgment of the trial court is affirmed.

________________________________

JAMES CURWOOD WITT, JR., JUDGE

CONCUR:

_______________________________

DAVID H. WELLES, JUDGE

_______________________________

L.T. LAFFERTY, SPECIAL JUDGE