# FILED

February 23, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JANUARY 1999 SESSION

STATE OF TENN ESSEE, ) ) NO. 02C01-9709-CR-00356 Appellee, ) ) SHELBY COUNTY VS. ) ) HON. JOSEPH B. DAILEY, CLEO HENDERSON, ) JUDGE ) Appellant. ) (Attemptto Commit Second Degree ) Murder)

DISSENTING OPINION

T he majo rity opinion concludes that the Tennessee Supreme Court has adopted the statu tory appro ach in det ermining lesser of fenses to be char ged the ju ry. The majority opinion further concludesthat“the trial court is required to consider only the lesser offenses of the offense charged in the indictment, not the language contained in the indictme nt.” My reading o f the ca ses relied upon by the major ity reflects that the language contained in the indictment is indeed materi al and can be determi native of lesser offenses to be charged. F or this reason, I r

espectfull y dissent. The majority opinion pri marily relies upon thr ee decisions of the Supr em e Court of Tennessee; to-wit: State v. Cleveland , 959 S.W.2d 548 (Te nn. 1997); State

v. Trusty , 919 S.W.2d 305 (Tenn. 1996); and Howard v. State , 578 S.W.2d 83 (Tenn. 1979). The majority concludes th at these c ases es tablish our adoption of the statutory approach and rejection of the pleadings approach to lesser offenses. My reading of these cases does not l ead to such a simple conclusi on. In Howard v. State , the Supreme Court concluded that :

an offense is necessarily inc luded in anoth er i f the elements of the greater offens e, as those elements are set forth in the indictment , include, but are not congruent with, all the elements of the lesser. 578 S.W.2d at 85 (emphasis added). Since the burglary indic tment in Howard did not allege a breach of peace, the Court concl uded criminal trespass w as not a lesser2

offense to be charged to the jury

. In State v. Trusty , the Supreme Court adopted the Howard language set forth

a bove. 919 S.W.2d at 310-11. The Court further stated that “unless aggravated assault is either a lesser grade or class or l esser included offense of attempted firstdegree murder as alleged in the indictment , appellant’s convicti on must be reversed.” Id. at 310 (emphasis ad ded). The Court then went on to spec ifically examine the language used in the indictment. Noting that it contained no refere nce to “serious bodilyinjury

or the u se or di splay o

f a deadly weapon,” the Court concluded that the indictment was

insufficient to allege any of the forms of aggravated assault defined in the statute. Id. at 312. Based upon this failure, the Court concluded aggravated assault should no t have been charged as a lesser offense of attempted first-deg ree murder. Id. In State v. Cleveland , our Sup reme Cou rt reli ed upon t he holdi ngs of Trusty and Howard . 959 S.W.2d at 554. The Court concluded that “aggravated assault is not a lesser i ncluded offense of attemp ted aggravated rape, as charged in the indictment .” Id. (em phasis added). Again, the Court ex amined the indictment and concluded that an essential element of aggravated assault was absent; to-wit: bodily injury, reasonable fear

of imminent bodily injury, or offensive physical contac t. Noting that the “focus must be placed on the elements of each offense and the allegations in the indictment ,” the Court concluded the trial court did not err in failing to instruct the jury on aggrav

ated assault. Id. (emphasis added). Unlike the indictments in Howard , Trusty , and Cleveland , the indictment in the

case at bar specificall y alleg ed all essential elements of ag gravated assault. Specifi cally, as the ma jority notes, the indictment alleged the defendant did “knowingly

attempt to kill Eva Its

on by use of a deadly weap on. . . and did ca use bodilyinjury to the said Eva Itson.” Thus, the esse n tial elements of aggrav ated assault are present in the indictment. See Tenn. Code Ann. §§ 39-13-101(a)( 1) and 39-13-102(a)(1)(B). In accordance w ith the h olding s of Howard , Trusty and Cleveland , aggra

vated a ssault was pr

operly charged as a lesser offe n se of attempted second degree murder.1 I also no te the i nherent unfairness to the state of allowing a defendant to secure the

benefit of a lesser offense charge witho ut objection and, upon conviction, complain the convictionis improper. In this case the trial court informed the defendant that aggravated assault would be charged as a lesser offense, and there was no objection. Nor was there any objectionat

the conclusion of thecharge. In the motion for new trial, defense counsel even conceded that aggravated

assault was a lesser offense. This issue was firs t raised on appea

l. It may well bethat defendant’s implied approval of aggravated assault being charged to the jury could be viewed a

s a consensual ame

ndme nt of the i ndictment. See State v. Billy Joe Stokes , C.C.A. No. 01C01-9710-CC-00442, Humphreys County (Tenn. Crim. App . file d January19, 1999, at Nashvi lle); but see State v. Michael Davenport , C.C.A. No. 03C01-9704- CR-00159, Cumberland County (Tenn. Crim. App. filed April 2, 1998, at Knoxville) (concluding that the mere failure to object to an erroneous lesser offense instruction does not result in an amended indictment.). 3 Based upon my reading of Howard , Trusty

and Cleveland , it would appear Tennessee has adopted a hybrid approach calling for the consider ation of both the pleadings and the statutes. I fully ag ree that our hybrid approach has produc ed great difficulty in the trial courts as evidenced by the numerou s appella te cases wh ich have addressed the issue. The statutory approach appears to be the most widely used in other jurisdictions and

may very wel l be the simplest and best approach, especially from the trial court’s perspective. A lthough I would hope this juri sdiction would adopt a si mpler ap proach t o lesser offenses to be charged to the jury, the trial court’s charging aggravated assault

as a lesser offense of attempted second degree mur der in this case was clea rl y pro per under th e holdin gs of Howard , Trusty and Cleveland . For this re ason, I dissent. 1

______________________ __ __________

_ JOE G. RILEY, JUDGE