# FILED
February 9, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE NOVEMBER 1998 SESSION

STATE OF TENN ESSEE, ) ) Appellee, ) C.C.A. No. 03C01-9710-CR- 0 045 4 ) vs. ) Washington County ) ROY D. NELSON, JR., ) Hon. Lynn W. Brown, Judge ) Appellant. ) (Burglary, Aggravated Burglary, ) Aggravated Arson, Pos session of Marijuana)

FOR THE APPE LLANT: FOR THE APPELLEE: DONALD E. SPURRELL JOHN KNOX WALKUP Attorney at Law Attorney General & Repor ter 128 E. Market St. Johnson City, TN 37604 ELIZABETH B . MARNEY Assistant Attorney Gener al 425 Fifth Ave. N., 2d Floor Nashville, TN 37243-0493 DAVID CROCKETT District Attorney General JOE C. CRUMLEY Asst. District Attor

ney General P.O. Box 38 Jonesborough, TN 37659

OPINION FILED:________________ AFFIRMED JAMES CURWOOD

WITT, JR., JUDGE1 Total fines of $60,350 were imposed. 2 OPINION The def enda nt, Roy D. Ne lson, sta nds convic ted of b urglary, aggravatedburglary, agg ravated arson and possessi on of marijuanaas a result of his efforts to b low up his e x-wife's home. Nels on received his conv

ictions at the
co nclusion of a jury trial in the Washingt on County Crimina l Court. A Range II I offender, Nelson is pres ently serving an effective 62-year sentence i n the Departmentof Correction for his crimes. 1 In this direct appeal, N elson claims he
was im properly convicted of aggrav ated arson because he, rather than another person, suffered t he s erious bodily injur y relied upon to elev

ate the offense from
arson to aggravated arson.Having review ed the appellate record, the arguments of the parties and the applicable l aw, we affirm the judgment of the trial court.

I Upon initial review of the record, we discovered that Nelson's notice of a ppeal was filed two and a half months after the trial court ente red its orde r overrulingthe motion for new trial. In order to be timely, the notice of appeal shou ld have been filed and received by the clerk of the trialcourt 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 Appellat e Procedure, the appellate cour t may waive timely filing in the interest of justice. Tenn. R. App. P. 4(a). Equally, the appellate court maychoose not to allow an unti mely appeal in a criminal case. See, e.g. , State v. CleothaNash , No. 02C01-9701-CC-00026, slip op. at 3 (Tenn. Crim. Ap p., Ja ckson, Feb. 18, 1998), perm. app. denied (Tenn. 1998); State v. Austin Kipling Stratton , No. 01C 01-9611-CC-00472, slip op. at 2-3 (Tenn. Crim. App., Nas hville, 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 o r a ny similar pleading. Typically, such fil ing would contain ack nowledgmen t that th e notice of appeal was not timelyfiled and would include ver ified factual and/or legal ass ertions why the interests of

justice dictate that we should waive timely fil ing of the notice of appeal. See Cleotha Nash , slip op. at 3 (appeal dismissed where neither record nor allegation by the defendant provided sufficie nt basis fo r waiver of timely

filing of notice of appeal).

Despite Nelson's shortcoming in this r egard, we somewhat

reluctantly waive the timely filing req uirement for the notice of appeal. The issue Nelson has raised on appeal is a novel one, and as bes t we can te ll, is an issue of first impression in Tennessee. It is better addr essed 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 per fect a timely direct appeal.In the interest of justice, we waiv

e the requirement of timely fil ing of the notice of appeal. Tenn. R. App. P. 4. We admonish cou nsel and o ther appealing parties, however, that this result is not a preordained conclusio n, and we expect acknow ledgment and an explanation when counsel has failed to c omply with the Rules of Appellate Procedure.

II

Nelson claims his aggravated arson convictio n ca nnot be sustained because the serious bodily injury used to elevate the crime from simple arson was his own, not another per son's. In pertinent part, "[a] person co mmits aggravated
arson who commits arson as defined i n § 39-14-301 or § 39-14-303 .

. . [w]hen any person , including firefighters and law enforcement officials, suffers serious bo dily injuryas a re sult of the fire or explosi on." Tenn. Code Ann. § 39-14-302(a)( 2)4

(1997) (emphasis added). "'Person' includes the singular and plural and means and includesany individual, fir m, partnership, copartnershi p, association, corporation, governmental subdivi sion or agency, or other

organization or other

legal entity, or any agent or servant thereof[.]" Tenn. Code Ann. § 39-11-10 6(a)(27) (1997).

The aggravated arson statute is anomalous . Elsewhere in the cr iminal code, off enses whic h are aggravated or especially aggr avated by the infliction

of bodily injury or

serious bodily inj ury are worded differently. See Tenn. Code Ann. § 39-13-102(a)( 1)(A) (1997) (agg ravated assault) ("ser ious bodily injury

to a nother") ; Tenn. Code Ann. § 39-13-304(a)(4) (1997) (aggravat

ed kidnapping) ("victim suffers bodilyinjury"); Tenn. Code Ann. § 39-13-305(a)(4) (1997) (especially agg ravated kidnapping) ("victim suffers serious bodily inju ry"); Tenn. Code Ann. § 39-13- 402(a)(2) (1997) (aggravat ed robbery) ("vic

tim suffers serious bodily injury"); Tenn. Code Ann. § 39-13-403(a) (1997) (especially aggravated robbery) ("victim suffers seriousbodily injury"); Tenn. Code Ann. § 39-13-502(a)(2) (1997) (aggravat

ed rape) ("defendant causes bodily injury to the victim"); Tenn. Code Ann. § 39-13-504(a)(2) (1997) (aggravate d sexual ba ttery) ("defendant causesbodily injury to the victim"); Tenn. Code Ann. § 39-14-404(a)(2) ( 1997) (especially aggravated burglary) ("victim suffers serious bodily inj ury"). The aggravated arson s tatute stands alone raising the possibility of a defendant's conviction of the aggravated off ense based upon his own seriou s bodily in jury.

In examining the crimi nal code, we find no indicationthat we should depart from the plain meaning of the definition of "person " and the common, ordinaryusage of the w ord "any." Th us, we be lieve "any person" who suffers seriousbodily injury i ncludes the defendant. We are further per su aded by the
wor ding of the aggravated arson s tatute itself, which prov ides that "a pe rson" i s guilty of the crime

if certain elements are met, in cluding that "any person " (not "any5

other person") suffers serious bodily injury. Unlike other criminal code provisions, the aggravatedarson statute does not r equire inj ury to a "v

ictim" or "another" as an element of the crime. Furthermore, this res ult is consistent wi th the unique character

of the crime of arson. More so than t he other offenses in the criminal code w hich are aggravated by some level of bodily injury, arson as a gene ra l proposition creates a dangerous exigency which has the potential t o endanger

the criminal himself, in addition to any targeted indiv idual, members of

the public, and rescue personnel.

Thus, we find no flaw with the defendant's co nviction of aggrav ated
arson based upon his own serious bodily injury from the explos ion he created. The judgment of the trial court i s affirmed.

________________________________ JAMES CURWOOD WITT, JR., JUDGE CONCUR:

_______________________________ DAVID H. WELLES, JUDGE

_______________________________ L.T. LAFFERTY, SPECIAL JUD GE