IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

June 17, 2003 Session 

STATE OF TENNESSEE v. ALONZO MAURICE ROGAN

Appeal from the Criminal Court for Sumner County

No. CR230-1999 Jane Wheatcraft, Judge 

No. M2002-01603-CCA-R3-CD - Filed January 22, 2004

THOMAS T. WOODALL, J., concurring in results only. 

I write separately to explain why I am concurring in results only in this case. The record

reflects that Defendant’s counsel adamantly asserted that aggravated assault was a lesser-included

offense of attempted first degree murder. Just as adamantly, the State argued that aggravated assault

was not a lesser-included offense of attempted first degree murder under our supreme court’s

decision in State v. Burns, 6 S.W.3d 453 (Tenn. 1999). The record also reflects that while the trial

court had reservations about the appropriateness of charging aggravated assault as a lesser-included

offense, it was ultimately persuaded to do so by arguments of Defendant’s counsel. Counsel’s

conduct may or may not be grounds for relief to Defendant in a post-conviction proceeding, but that

must be decided at a later hearing on a later date. 

The trial in this case was concluded on February 24, 2000. Less than two weeks later, this

court filed its opinion in State v. Christopher Todd Brown, No. M1999-00691-CCA-R3-CD, 2000

Tenn. Crim. App. Lexis 214 (Tenn. Crim. App. at Nashville, March 9, 2000) perm. to app. denied

(Tenn. 2001). In Brown, this Court clearly held that aggravated assault is not a lesser-included

offense of attempted first degree murder. 

Had the State asserted and argued to the trial court that aggravated assault should be charged

as a lesser-included offense, or even if the State had quietly acquiesced in the charge of aggravated

assault, I would feel compelled to reverse and dismiss the conviction for aggravated assault, because

Defendant was clearly convicted of an offense for which he had not been originally charged.

However, relying upon State v. Ealey, 959 S.W.2d 605 (Tenn. Crim. App. 1997), I feel that, at least

in the direct appeal from his conviction, Defendant should not benefit from his counsel’s assertion

that aggravated assault is a lesser-included offense of attempted first degree murder. In Ealey, the

trial court erroneously charged statutory rape as a lesser-included offense of rape of a child. The

defendant in Ealey was convicted of statutory rape. This Court held that because the defendant

requested a jury charge on the offense of statutory rape, that this action “amounted to a consensual

amendment to his presentment such that he was properly charged with statutory rape in addition to

rape of a child.” Id. at 612. I am cognizant of our supreme court’s holding in State v. Stokes, 24
2

S.W.3d 303 (Tenn. 2000). I distinguish Stokes from the case sub judice on the basis that in Stokes,

the defendant and the State “passively agreed” to the erroneous instruction. Id. at 306. Also, Stokes

did not expressly overrule Ealey, and I am unable to conclude that it implicitly overruled Ealey.

For these reasons, I concur in results only with the majority’s opinion addressing the issue

of an erroneous lesser-included offense instruction. I fully concur with the remaining portion of the

majority opinion. 

____________________________________

THOMAS T. WOODALL, JUDGE