### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE June 17, 200 3 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 - F iled January 22, 2004

T HOM AS T. W OODA LL , J., concurring in results only.
I wri te s epa rat ely t o ex pl ain why I a m concurring in results only in this case. The record reflec ts that Defendant’s counsel adamant ly a sserted

that ag grava

ted assa ult was a lesser-included offense of at te mp te d f

ir st de gr ee mu rd er . J us t a s a da ma nt ly, the State argued that agg ravated assault was not a less er-inc luded off ense of a ttempted f

irst deg ree mur der unde r our su prem e 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 aggrava ted assault as a lesser-included offense, it was ultima tely pers uaded to do so by ar guments of Defendant’s counsel. Counsel’s conduct may or may

not be g rounds fo r 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. Lessthan two w eeks lat er, this court filed its opinion in State v. Ch ristopher Todd Brown , No. M1999-00691-CCA-R3-CD, 2000 Tenn. Crim. App. Lexis 214 (Tenn. Crim. App. at Nashville, March9, 2000) perm. to app. denied (Tenn. 2001 ). In Brown , this Court clearly held that aggr avated a ssault is not a lesser -inclu de d offense of attempted first degree murder.
Hadthe State

asserted and argued to the trial cour t that aggravated

assault should be charged as a lesser-included offense, or eve n if the State had quietly acquie sced in the charge of ag gravated assault, I would feel

compelle d to revers e and dism iss the co nviction f

or agg ravate d assault , becau se Defe ndant 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 fe el that, a t least in the direct appeal from his conviction, Defendant should not benefit from his counsel’s assertion that aggr avated a ssault is a

lesser- included

offense of attempted first

degree murder. I

n Ealey , the trial court erroneously

cha r ged statutory

rape as a lesser-included offe nse of rape of a child. The defendant in Ealey was convicted of statutory rape. T his Court held that b ecause the defendant requested a jury char ge on the offense of

statutory rape, tha

t this action “amounted to a consensual amendment

to his presentment such that he was properly charged with statutory

rape in a ddition to rape o f a child.” Id . at 612. I am cognizant of our supr eme court’s holding in State v. Stokes , 2 42

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 errone ous instruction. Id . at 306. Also, Stokes did not expressly overrule Ealey , and I am unable to conclude that it implicitly overruled Ealey

. For thes e reaso ns, I co ncur in r esults 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